Why Methods Matter in European Legal Scholarship

• Date: 01 May 2014
• Author: Rob Gestel,Hans‐Wolfgang Micklitz
• DOI: http://doi.org/10.1111/eulj.12049
• Published date: 01 May 2014

Why Methods Matter in European

Legal Scholarship

Rob van Gestel and Hans-Wolfgang Micklitz*

Abstract: Both in the United States and in Europe, there is a debate on methodology

in legal research. Doctrinalists and multidisciplinarians appear to be in different camps

f‌ighting over the ‘true nature’ of legal scholarship. We wonder where this renewed

attention for methodology is coming from and what is behind it. Should European legal

scholars follow certain colleagues in the United States who believe that doctrinal

research is dead and should we all engage in law and . . . research now? If not, does

this imply that there is nothing wrong with mainstream European doctrinal legal

scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing

instrumentalisation of law and legal research decreases the attention for methodology,

for theory building, and for keeping enough professional distance to one’s object of

research. This threatens to result in a creeping process of herd behaviour, in copy

pasting the methodology of judicial lawmaking to legal scholarship and in a lack of

transparency and methodological justif‌ication in scholarly legal publications. What is

desperately needed is more ref‌lection on methodology and theory building in European

legal scholarship.

I Is Doctrinal Legal Research Dead in the United States?

Over the last decades legal scholarship in the United States has fundamentally

changed and with it the opinions of some of its academic leaders, so it seems. Before

the 1980s, most American legal scholarship was doctrinal and descriptive, or theo-

retical and prescriptive; the ultimate purpose of legal research was usually to prescribe

a better outcome to a judge. As judge Posner put it, the task of doctrinal legal

scholarship was simply to extract a doctrine from the line of cases or from statutory

text and history, restate it, perhaps criticise it or seek to extend it, all the while striving

for sensible results in light of legal principles and common sense.1According to many,

the prescriptions were predominantly based on policy arguments derived from beliefs

about the way society should be organised or operated. Posner himself denounced

these issues already in the late 1980s and early 1990s by stating that:

* Rob van Gestel is Professor of Theory and Methods of Regulation at Tilburg University, Professor of

Methodology of Law and Legal Research at Leuven University and Braudel fellow at the European

University Institute. Hans-Wolfgang Micklitz is Professor of Economic Law and Head of Department

of the Law Faculty of the European University Institute.

1R.A. Posner, ‘Legal Scholarship Today’, (2002) 115 Harvard Law Review 1314, 1316.

bs_bs_banner

European Law Journal, Vol. 20, No. 3, May 2014, pp. 292–316.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

‘What is missing from law are penetrating and rigorous theories, counterintuitive hypotheses that are

falsif‌iable but not falsif‌ied—precise instrumentation, an exact vocabulary, a clear separation of positive

and normative inquiry, (. . .), and above all and subsuming most of the previous points, objectively

testable (. . .) hypotheses. In law there is the blueprint or shadow of scientif‌ic reasoning, but no

edif‌ice.’2Posner even suggested that law is ‘not a f‌ield with a distinct methodology, but an amalgam

of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular

body of texts, practices, and institutions. . . .’3

Since Posner, many others have criticised a purely dogmatic or ‘black letter’

approach towards academic legal research advocating a turn to more multidiscipli-

nary legal scholarship.4In this debate, ‘multidisciplinarians’ often perceive ‘doctrinal-

ists’ to be intellectually rigid, inf‌lexible, formalistic, and inward looking.5Other

accusations include that doctrinalists show an unhealthy preoccupation with techni-

calities,6focus too much on unimportant topics, repeat existing knowledge and

neglect the real-world consequences of doctrinal theories. Proceeding otherwise

would, according to Deborah Rhode, require signif‌icant more time, money and non-

legal expertise, which she believes most authors of doctrinal work are more than

happy to avoid.7As a consequence, many doctrinal works are, according to her,

‘glutted with theory and starved for facts.’8Pierre Schlag goes even further. He claims

that most of the doctrinal research in the United States is nothing more than ‘case-law

journalism’ since traditional legal scholars would seldom move beyond commenting

upon judicial decisions, use basically the same sort of language and interpretation

methods as the judiciary and frequently write about the facts and the context of a case

from behind their desks.9

More recently, however, judge Posner appears to have become far more careful in

criticising doctrinal legal scholarship. In a reaction to Pierre Schlag’s ‘Spam Jurispru-

dence’ he now defends traditional doctrinal legal scholarship saying that: ‘The law

schools need legal analysts, not merely as teachers but also as scholars. Doctrinal

2R.A. Posner, The Problems of Jurisprudence (Cambridge M.A.: Harvard University Press, 1993),

at 69.

3R.A. Posner, ‘Conventionalism: The Key to Law as an Autonomous Discipline’, (1988) 38 University of

Toronto Law Journal 333, 345, quoted in R. Schwartz, ‘Internal and External Method in the Study of

Law’, (1992) 11(3) Law and Philosophy 179, 185.

4See E. Mertz, ‘Social Science and the Intellectual Apprenticeship: Moving the Scholarly Mission of

Law Schools Forward’, (2011) 17, The Journal of Legal Writing Institute, p. 427 (see: http://

www.law2.byu.edu/Law_Library/jlwi/archives/2011/17LegalWriting427-441.pdf) (427); J.M. Balkin and

S. Levinson, ‘Law and the Humanities: An Uneasy Relationship’, (2006) 18 Yale Journal of Law & the

Humanities 155, 166–173; R.C. Park and M.J. Saks, ‘Evidence Scholarship Reconsidered: Results of the

Interdisciplinary Turn’, (2006) 47 Boston College Law Review 949; J.A. Blumenthal, ‘Law and Social

Science in the Twenty-First Century’, (2002) 12 Southern California Interdisciplinary Law Journal 1;

M. Tushnet, ‘Interdisciplinary Legal Scholarship: The Case of History-In-Law’, (1996) 71 Chicago-Kent

Law Review 909; G.C. Lilly, ‘Law Schools without Lawyers? Winds of Change in Legal Education’,

(1995) 81 Virginia Law Review 1421, 1427–1435; G.L. Priest, ‘The Growth of Interdisciplinary Research

and the Industrial Structure of the Production of Legal Ideas: A Reply to Judge Edwards’, (1993) 91

Michigan Law Review 1929; W.M. Landes and R.A. Posner, ‘Inf‌luence of Economics on Law: A

Quantitative Study’, (1993) 36(1) Journal of Law & Economics 385, 424.

5D. Vick, ‘Interdisciplinarity and the Discipline of Law’, (2004) 31(2) Journal of Law and Society 164.

6R. Cotterell, ‘Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies’, (2002) 29

Journal of Law and Society 633.

7D. Rhode, ‘Legal Scholarship’, (2002) 115 Harvard Law Review 1327–1361, 1340.

8Id Rhode at 1340.

9P. Schlag, ‘Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on

the State of the Art)’, (2009) 97 Georgetown Law Journal 803, 821–823.

May 2014 Methods in European Legal Scholarship

293

© 2013 John Wiley & Sons Ltd.