the role of methodology in legal research zdeněk nový autumn school of legal writing 17 october...

The Role of Methodology in Legal Research

Zdeněk NovýAutumn School of Legal Writing

17 October 2013

The scientific approach to law• It is an astonishing finding that while all social sciences cannot do without

methodology, this is very rare in the field of “legal science“. (Van Gestel, Micklitz& Maduro, 2012)

The point of departure• Methodology of legal research will depend on what is your concept of law

and justice

The concept of law• Positivism, non positivism, natural law

European/International/national/transnational law• eg law as a command by the authority (Austin) or a social

institution (Santi Romano) • Law in books vs law in action (Ehrlich, Pound)• Law v non-law (is lex mercatoria “law“?)• Judge creates the law or is only “mouth of law“

(Montesquieu)

The concept of justice• Veil of ignorance (Rawls)• Procedural justice (Habermas) or Kantian “cooperative” justice• A particular concept of justice may influence the conclusions of your

thesis

The motivation for the research• One should not expect to have become eg a leading

antitrust lawyer by writing PhD thesis on this branch of law

• Academic legal research vs legal practice:– A practical question may be the starting point, but the

research requires to give some original idea (Siems 2008)

The research question/ hypothesis• One general (overall) research question/hypothesis• The research question/hypothesis should be valid, therefore having some

interest for the academic community

The research question/ hypothesis (2)• Should be based on the solid theoretical background• Should rest on the state of the art• Should be verifiable (Popper), therefore open to academic criticism

Micro-legal v macro-legal question• You may deal with a specific problem (eg how a

particular statutory provision works in practice)or• Focus on general ideas, concepts and principles (eg

justice, law and rights)or • Combine the both

Methodology• Methodology should indicate the means to give the answer to the

research question• The use of a different methodology may lead to a different result

A method • A method is “a road to the solution of a problem or a set of problems“• (van Gestel, Micklitz&Maduro 2012)

-> Various methodological approaches

Inductive and deductive methods• Induction: “The process of inferring a general law or principle from the

observation of particular instances“• Deduction: “The inference of particular instances by reference to a general

law or principle“ (OED online, 22 October, 2012)

Make implicit explicit• A meaningful and fair research requires that your

implicit assumptions, methods, hypotheses and the limits of the research are made explicit

• You should make clear which method(s) you use in your research and why

The coherence• What ought to match in the research:

– The research question and methods – The methods and the structure of the thesis– The research question(s) and the conclusion

The originality• The research should be original • A „stand-and-stare“ approach• The aim of academic writing is to present what the people in the field do

not know

The reflection of the state of the art• Must be reflected in the research• The concept of paradigm in the philosophy of science (T.S. Kuhn):• Before new paradigm is built, the old needs to be destroyed

Black-letter lawyer v contextualist• A black-letter lawyer seeks to gain the idea of law from inside (Law as a

“black box“)• A contextualist takes the outside perspective

Doctrinal vs inter/multi-disciplinary research• There is nothing wrong with doctrinal research as such• It may, however, give a fairly incomplete picture (eg competition law)

Interdisciplinary approach within the law• Some complex legal questions may require the approach by more legal

fields (eg the role of TNCs on international plane)

Historical approach to law• Inevitable in studying legal history• Otherwise may be useful if you link the historical development to the

contemporary legal reality (eg works of Reinhard Zimmermann)• It is advisable to make clear whether your research is historic or not

Empirical legal research• “theoretical work without any empirical content is

hollow and the empirical work without supporting theory is shallow“ (Brownsword, R. in van Gestel et al)

• Academic “classics“: eg a repeat-player effect (Galanter, 1974)

• The use of statistics as an evidence in the disrimination cases (used eg by the ECHR)

Law and philosophy• E.g. The Concept of Law by H. L. A. Hart or the work of Hart and Honoré

on causation (1954)• Various works regarding the relation between law and morality (eg L.

Fuller)

Comparative law• The choice of tertium comparationis• Micro-level vs macro-level • The functional comparison (Zweigert, Kötz, 1998) –

presumptio similitudinis• Legal formants (Sacco, 1991) and legal transplants

(Watson, 1974)• The problem with commensurability (Legrand, 1996)

Socio-legal studies• Law in action vs law in books (R. Pound)• (New) Legal Realism – Law is what is going on in the courts (C. Sunstein)• System theories: Law as an autopoietic system (Luhmann, Teubner)

Law and economics• Law should be effective in economical terms • Human being is a rational agent seeking always its

own profit (the „classical“ conception)• The recent trend adding a psychological insight (so

called behavioural law and economics)

Law and economics (2)• Useful in all fields, but mainly in contract, company, competition and tort

law (Calabresi, Mattei, R. Posner)• Coase theorem• Games theory (eg prisoner's dilemma)

“Non-law“ studies• The research that focuses on non-legal phenomena linked strongly to legal

regulation • eg corporate governance in company law and soft law in international law

“Global law” studies• Global administrative law (Kingsbury, Krisch, 2005)• Transnational law (Callies and Zumbansen, 2010)• Global legal pluralism (Berman, 2007)• Autonomous international arbitration (Gaillard, 2008, Schultz, 2011)

Other approaches• Feminist legal studies• Legal memetics (Deakin)• The theory of legal origins (La Porta et al)• Critical legal studies – legal science masks that the

law is the expression of hegemonic function of social and economic elites (McCrudden, 2006)

• Legal formalism (Weinrib, 1988) – law and politics must be separated

Methodological fallacies in legal research• “Advocacy scholarship“• “Cherry-picking“ • “Omnipresence of law“• Interdisciplinary “window-dressing“• “A dernier-cri syndrom“

Common fallacies in methodology (2)• Presenting a mere description of legal rules• Poor skills in interpretation (the lack of knowledge of

hermeneutics hence relying on rather weak interpretation “methods“ as systemic, historical etc)

• The “tunnel vision“ (Muir Watt, 2012)• The lack of the demarcation line between “is” and “ought”

(Though this may be sometimes difficult)• The lack of appropriate language skills