A European Legal Method? On European Private Law and Scientific Method

• Date: 01 January 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00449.x
• Published date: 01 January 2009
• Author: Martijn Hesselink

A European Legal Method? On European

Private Law and Scientif‌ic Method

Martijn Hesselink*

Abstract: This article examines the relationship between European private law and

scientif‌ic method. It argues that a European legal method is a good idea. Not primarily

because it will make European private law scholarship look more scientif‌ic, but because

a debate on the method of a normative science necessarily has to be a debate on its

normative assumptions. In other words, a debate on a European legal method will have

much in common with the much desired debate on social justice in European law. More-

over, it submits that, at least after the adoption of the Common Frame of Reference by

the European institutions, European contract law can be regarded as a developing multi-

level system that can be studied from the inside. Finally, it concludes that the Europe-

anisation of private law is gradually blurring the dividing line between the internal and

external perspectives, with their respective appropriate methods, in two mutually rein-

forcing ways. First, in the developing multi-level system it is unclear where the external

borders of the system lie, in particular the borders between Community law and national

law. Second, because of the less formal legal culture the (formerly) external perspec-

tives, such as the economic perspective, have easier access and play an increasing role

as policy considerations.

I Introduction

Within the contexts of national research assessment exercises, of national and Euro-

pean competitions for research funds and of the juries for doctoral theses in law, the

question is often raised whether legal scholarship and its methods are suff‌iciently

scientif‌ic. Obviously, these general questions also apply to academic research into

European law and its methods. With regard to this subject there are even further, more

specif‌ic questions. For example, whether European legal scholarship is more scientif‌ic

than national legal scholarship by the mere fact that it is international, or that the social

sciences, such as political science and economic analysis, play a greater role therein, as

is often suggested. A further specif‌ic question is whether we need a common European

legal method and, if so, what it should look like.

* Faculty of Law, Centre for the Study of European Contract Law. This article is based on a paper

presented at the seminar Legal Europe—Coherence and/or Fragmentation, at the Centre of Excellence

‘Foundations of European Law and Polity’ of the University of Helsinki, on 31 January and 1 February

2008, and at the workshop ‘After the Common Frame of Reference—What Future for European Private

Law?’ on 29 February and 1 March 2008, at the European University Institute at Florence.

European Law Journal, Vol. 15, No. 1, January 2009, pp. 20–45.

© 2009 The Author

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and 350 Main Street, Malden, MA 02148, USA

These questions all concern the relationship between European law and scientif‌ic

method. It is this relationship that will be addressed in this article. What is it that

European legal scholars should do? However, before going into specif‌ic methodological

questions concerning European law we f‌irst need to clear the ground with regard to

some more general questions about legal method. As I will argue, I will have to make

my methodological and ideological assumptions more explicit before addressing the

specif‌ic questions relating to a European legal method. Throughout this article the

focus will be mainly on private law. Not because the same questions would not be

relevant for other parts of European law, but rather because traditionally private law

scholarship has had the most scientif‌ic vocation or, if you like, presumption.

II How to be a Science

A External Scepticism

Traditionally, legal scholars try to answer questions of law. They answer these ques-

tions according to a given legal system (typically their own system). In other words,

they adopt an internal perspective. Moreover, they usually presume that the legal

system contains one single right answer to each legal question. Therefore, traditional

legal scholarship may be characterised as both positivistic and dogmatic.1The internal

perspective is the perspective of the judge. The aim is to become an oracle of the law.2

The ideal legal scientist is very similar to Dworkin’s Hercules, ‘an imaginary judge of

superhuman intellectual power and patience who accepts law as integrity’.3This

explains why the method of legal research and the method of adjudication (‘f‌inding the

law’) have traditionally been assimilated.4As a consequence, traditionally there has

been little specif‌ic attention for methods of legal research. Larenz’s Methodenlehre der

Rechtswissenschaft, an international classic translated into many languages, is entirely

concerned with the application, interpretation and further development of the law; it

underlines that disciplines that study the law from the outside, such as legal history and

legal sociology, are different sciences,5an idea that goes back to Hans Kelsen’s theory

of pure legal science.6Another consequence of adopting the internal perspective is that

academic legal research has traditionally been closely connected to legal practice.7

However, national traditions differ considerably in this respect: whereas in Germany

law professors have traditionally had a major impact on the development of the law

(the treatise), in France the initiative has been more with the legislator (the civil code),

while in England the judges have dominated the scene (case-law) without paying too

1See M. W. Hesselink, The New European Legal Culture (Kluwer, 2001), ch 1, with further references.

2Of course, in J. P. Dawson, The Oracles of the Law (William S. Hein & Co, 1968), the phrase refers to

judges.

3R. Dworkin, Law’s Empire (Fontana, 1986), at 239.

4cf J. B. M. Vranken, Exploring the Jurist’s Frame of Mind (Kluwer, 2006), at 146.

5K. Larenz, Methodenlehre der Rechtswissenschaft (Springer Verlag, 5th edn, 1991), at 5.

6Hans Kelsen’s Reine Rechtslehre; Einleitung in die Rechtswissenschaftliche Problematik [1st edn, 1934]

(Scientia Verlag, 1994) was not in the f‌irst place a pure theory of law but a theory of pure legal science;

it was concerned with the def‌inition of law as an object of scientif‌ic study. Specif‌ically on the difference

between legal science and legal sociology, see the debate between Kelsen and Ehrlich: H. Kelsen and

E. Ehrlich, Rechtssoziologie und Rechtswissenschaft; Eine Kontroverse (Nomos, 2003).

7See, e.g. P. Stein, Roman Law in European History (Cambridge University Press, 1999).

January 2009 A European Legal Method?

© 2009 The Author 21

Journal compilation © 2009 Blackwell Publishing Ltd.