Empiricism and Private Law: Behavioral Research as Part of a Legal-Empirical Governance Analysis and a Form of New Legal Realism

Abstract

The article deals with the role of empirical – in particular of behavioral – research for the law. The following questions will be answered: What is the position of behavioral legal research in the larger spectrum of legal and non-legal disciplines, like governance research, neo-classical economic analysis of law, legal sociology, and traditional legal doctrine? Does behavioral legal research merely employ empirical descriptive methods or does it contain specific normative theories? Which are the risks of empirical legal and behavioral research? Which are the relevant research questions in the area of private law as opposed to public law? It is argued that behavioral legal research should not be reduced to a mere economic analysis approach to law, but be rather placed in the broader concept of a “legal-empirical governance analysis” (LEGA).