An ongoing structural problem for the normative political theory of punishment concerns the question of ‘just deserts in an unjust society’, explored here as the question of the guilt of the victim who victimises another. While political theory cannot justify punishment in such circumstances, the possibility of a moral and psychological sense of guilt still exists. This chapter juxtaposes liberal theory’s impasse with a moral psychology of guilt drawn from the psychoanalytic perspectives of Melanie Klein and Jessica Benjamin. Based on complex love and reparation, this account of guilt is an important way of understanding what is at stake in human violation. Classical political views of the impasse are explored in Kant and Hegel, while Antony Duff’s theory of punishment as communication is seen as seeking to go beyond these but remaining constrained by them. Klein’s account of guilt as a reparative emotion is linked to Benjamin’s ideas of the ‘doer’ and the ‘done to’ and the possibility of reconciliation through recognition. This deeper sense of guilt cannot cure the problem in political theory but shows how an alternative moral psychology of guilt is available even where such theory is exhausted.

This chapter offers a critique of experimental jurisprudence. While experimental jurisprudence can make an important contribution to legal knowledge and legal theory, theorists and practitioners of experimental jurisprudence should also be aware of its limitations. Experimental jurisprudence cannot, by itself, resolve legal theoretical debates. It is just one limited tool, with an important but partial role to play in the collective project of understanding and evaluating law and legal rules, institutions, and practices. This chapter offers a summary survey of some of the limitations of experimental jurisprudence in special and general jurisprudence. It also argues that, if we want to fully understand law and legal concepts, practices, and institutions, experimental jurisprudence needs to be supplemented with other perspectives – such as those provided by anthropology, qualitative research, and the humanities. These perspectives can capture precisely what experimental jurisprudence must necessarily ignore: that law is a complex institutionalized social and cultural practice constituted by the thought and talk of legal experts.

The US Supreme Court routinely purports to resolve statutory interpretation disputes by deferring to the enactment-era “ordinary,” “public” meaning of the statute’s terms (their “OPM”). In recent years, scholars have begun using surveys and experiments to test judges’ claims about OPM in particular cases, and to critique modern textualist theory and practice more generally. This chapter argues that surveys and experiments can provide highly probative evidence of OPM, whether one favors the more populist conception of OPM on which the modern Supreme Court frequently purports to rely, or the more thoroughly stylized conception that some scholars favor. Drawing on the handful of published survey-experimental efforts to date, and responding to scholarly criticisms of them, the chapter suggests that surveys and experiments may prove too probative for comfort. If modern textualists were to spell out ex ante their conception of OPM with sufficient precision to render it capable, even in theory, of resolving the hard cases they claim it resolves, then survey-experimental data might reveal that the theory produces disappointing results – not just in discrete cases, but across the board.

Psychology and law, by their nature, are deeply entwined. Both are about human behavior – understanding it, modifying it, regulating it. Psychology’s research engagement with legal topics enjoys a long history, but until recently has been largely limited to clinical assessment (e.g., capacity, insanity) and police and trial evidence and procedures (e.g., eyewitnesses, jury instructions). The traditional canon of “Psychology & Law” research gained prominence when DNA evidence revealed that many wrongful convictions involved problems foreseen by psychologists. Also, the emergence of “Behavioral Law & Economics” likely provided more legitimacy to law’s engagement with empirical psychology topics and methods, spurring “Law & Psychology” teaching and research in law schools. The expanded range of research can be found across the US law curriculum as illustrated in four main first-year courses – Criminal Law, Torts, Contracts, and Property – and two commonly taken or required courses – Evidence and Professional Responsibility. The current experimental jurisprudence boom has added to the topics and methods used in this research and amplifies the existing trend in which psychology engages more closely with the content and values of law.

Taking Herbert Morris’s ethical concepts of guilt, identification, responsibility and atonement as ‘at-one-ment’, this chapter explores their metapsychological basis and somatic link to feeling ‘rotten, depleted of energy, and tense’ (Morris 1976: 99). Exploring Freud’s metapsychology in Civilization and Its Discontents (1985), two conflicting routes to guilt are noted. The more prominent involves internalisation of external anger to suppress destructive instincts. The better but less developed emphasises loving identification with others in the process of ego and superego formation of the self. This second route is in line with Freud’s later structural theory as developed by Hans Loewald and Jonathan Lear. Following Loewald, the moral psychology of self-formation makes loving identification the root of responsibility, guilt and atonement as at-one-ment. The superego is an ‘atonement structure’ that is reconciliative, and this links psychoanalysis to Morris’s metaphysics of atonement. The analysis is developed to include ‘prospective identification’, moral and psychological guilt for the violation of a stranger. Emotional disturbance at killing another with whom one could identify is explored and a comparison made with Raskolnikov’s guilt in Dostoyevsky’s Crime and Punishment. A closing section links this chapter to the previous, cementing the metaphysical and metapsychological dimensions of guilt in an expanded understanding of philosophy as both Greek and modern.

The present chapter presents an overview of the recent applications of experimental methods to jurisprudential issues in international law as well as potential future developments of the field. We discuss how experimental methods can helpfully contribute to the understanding of the different moments of international law: the making of new rules, the interpretation of these rules, and, finally, their application in practice. We also present three main topics that constitute the studies of rule application in practice, namely, the mechanisms behind human judgment, policymaking, and, finally, the decision taking itself. We identify some future potential lines of development based on the example of the current disagreements over the definition of an international crime of “ecocide” and discuss some potential limitations of the experimental approach.

Experimental jurisprudence draws methods and theories from an increasingly wide variety of fields, including psychology, economics, philosophy, and political science. However, researchers interested in legal thought have thus far paid relatively little attention to its origins in development. This chapter highlights an emerging approach that leverages methods and insights from developmental science to better understand the nature and development of adult intuitions about the law. By studying children’s earliest intuitions about rules, laws, and other topics, this “intuitive jurisprudence” approach can provide new methods and theoretical frameworks for experimental jurisprudence, as well as clarify places in which the law does or does not match human intuitions about justice. Already, developmental psychology and legal scholarship may converge to be mutually informative in a number of diverse areas, and this chapter reviews several, including: intent and punishment; fairness and procedural justice; ownership and property rights; trust in testimony and evidentiary issues; and social biases and equal protection under the law.

Legal language is often ambiguous. Consider: “Only cars and trucks with permits are allowed.” Does [PP with permits] have “wide scope” over the entire series [NP cars and trucks] or “narrow scope” over only the closest noun, [trucks]? Judges often choose narrow scope, citing a legal canon, the “Last Antecedent Rule.” But they sometimes choose wide scope, referencing the “Series Qualifier Canon,” which assigns modifiers to a series. Though judges claim to want to use “most people’s” interpretations, these conflicting choices led us to ask “What WOULD most people say?” We ran three experiments to find out.

Overall, wide scope was preferred. With biased PPs, the preference dropped slightly when the bias matched the last noun, “[NP cars and trucks] [PP with trailers],” but not the first, “[NP trucks and cars] [PP with trailers],” where a universal syntactic “No Crossing Branches principle” limits the PP’s domain. With temporal PPs, “People may park [NP cars and trucks] [PP on weekends],” the preference was also uniformly wide scope, not surprisingly, since these PPs can only modify verbs, not nouns. Taken together, our experiments show how experimental psycholinguistics can offer powerful evidence about how “most people” understand legal language, important information for judges and lawmakers alike.

Rules are ubiquitous. They figure prominently in all kinds of practical reasoning. Rules are especially important in jurisprudence, occupying a central role in answers to the question of “what is law?” In this chapter, we start by reviewing the evidence showing that both textual and extratextual elements exert influence over rule violation judgments (Section II). Most studies about rules contrast text with an extratextual element identified as the “purpose” or “spirit” of the rule. But what counts as the purpose or the spirit of a rule? Is it the goal intended by the rule maker? Or is purpose necessarily moral? Section III reviews the results of experiments designed to answer these questions. These studies show that the extratextual element that’s relevant for the folk concept of rule is moral in nature. Section IV turns to the different explanations that have been entertained in the literature for the pattern of results described in Sections II and III. Finally, in Section V we discuss some other extratextual elements that have been investigated in the literature. We conclude with a brief discussion of future directions.

As a branch of analytic philosophy, jurisprudence, understood as legal philosophy, is often thought to be a nonempirical enterprise. It turns out, however, that unresearched, unsupported, and largely impressionistic empirical assertions have long been a part of the analytic jurisprudential enterprise. Recognizing this is the first step towards examining and testing these empirical assertions. Using the proclivity of ordinary people to obey the law (or not) because of the content-independent existence of law as one example of such an assertion, this chapter explores how that assumption might be tested by experimental and other means, as a prolegomenon to testing the empirical claims and assumptions that have long pervaded even the most traditional jurisprudence.

Legal concepts can sometimes be unclear, leading to disagreements concerning their contents and inconsistencies in their application. At other times, the legal application of a concept can be entirely clear, sharp, and free of confusions, yet conflict with the ways in which ordinary people or other relevant stakeholders think about the concept. The aim of this chapter is to investigate the role of experimental jurisprudence in articulating and, ultimately, dealing with competing conceptual inferences either within a specific domain (e.g., legal practice) or between, for example, ordinary people and legal practitioners. Although this chapter affirms the widespread assumption that experimental jurisprudence cannot, in and of itself, tell us which concepts should be applied at law, it highlights some of the contributions that experimental jurisprudence can, in principle, make to normative projects that seek to prescribe, reform, or otherwise engineer legal concepts. Thus, there is more that experimental jurisprudence can normatively offer than has usually been claimed.

Legal rights, obligations, and liabilities bind together entities, including people, real and moveable property, and abstract objects, across time. Determining whether these rights, obligations, and liabilities exist at any particular time therefore requires the law to embed within it a theory of persistence – that is, a theory of how entities persist over time. The philosophical and psychological literature has identified multiple different theories of how objects persist over time, some of which are identity relations and some of which are not. Research in experimental jurisprudence has shown both that ordinary people’s judgments about the law often match the content of the law itself and that ordinary people’s judgments appear sensitive to multiple different persistence relations. These findings provide reason to think that the law, to the extent it reflects the judgments of ordinary people, also reflects multiple different theories of persistence – contrary to recent arguments that legal rights depend solely on numerical identity.

This chapter briefly introduces experimental jurisprudence and the contents of the handbook.