Methodologies of Legal Research

Which Kind of Method for What Kind of Discipline?

Mark Van Hoecke, Mark Van Hoecke

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847317803
• Edition: 1
• Topic: Law
• Subtopic: Legal Education
• Index: Law

Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. In turn this has involved asking questions not only about coverage but, fundamentally, questions about the identity of the discipline. Is it (mainly) descriptive, hermeneutical, or normative? Should it also be explanatory? Legal scholarship has been torn between, on the one hand, grasping the expanding reality of law and its context, and, on the other, reducing this complex whole to manageable proportions. The purely internal analysis of a legal system, isolated from any societal context, remains an option, and is still seen in the approach of the French academy, but as law aims at ordering society and influencing human behaviour, this approach is felt by many scholars to be insufficient.
Consequently many attempts have been made to conceive legal research differently. Social scientific and comparative approaches have proven fruitful. However, does the introduction of other approaches leave merely a residue of 'legal doctrine', to which pockets of social sciences can be added, or should legal doctrine be merged with the social sciences? What would such a broad interdisciplinary field look like and what would its methods be? This book is an attempt to answer some of these questions.

1

Legal Doctrine: Which Method(s) for What Kind of Discipline?

MARK VAN HOECKE

I. HISTORICAL DEVELOPMENTS

ROMAN LEGAL DOCTRINE developed since the second century before Christ, and reached a very high level as from the third century after Christ. Its rediscovery and renewed study in Bologna in the eleventh century was the start for the creation of universities. During the whole of the Middle-Ages, legal doctrine was highly thought of and considered as a ‘scientific discipline’, as in those times ‘authoritative interpretation’, not ‘empirical research’, was the main criterion for the scientific status of a discipline. Slowly as from the seventeenth century, but mainly as from the nineteenth century, this changed dramatically. The success of the positive sciences altered the conception of ‘science’ in western societies. Physics became the model. Hence, a combination of empirical data, mathematics, testing of hypotheses, developing theories with a general validity and without geographical limitations, became the ideal for any ‘scholarly discipline’. However, where in legal scholarship do we study ‘empirical data’, handle them with mathematical models, check ‘hypotheses’ or construe ‘theories’? For sure, law and legal doctrine clearly have their geographical limitations, so that there is no claim to ‘general validity’ outside the geographical borders of the legal system concerned.

As from the mid-nineteenth century, those conclusions have repeatedly led to the statement that ‘legal doctrine’ misses basic characteristics in order to be considered a ‘legal science’, whereas until then legal doctrine had largely been seen to be the model ‘science’.¹ More recently, it is particularly the research assessment procedures and the repartition of public money among ‘scientists’ that have put this topic into the centre of the scholarly debate. Lawyers have reacted in different ways to this pressure. A large majority of them have pointed to the practical utility, and even necessity, of their publications for legal practice and emphasised the importance of law in society, or they have benignly ignored that criticism. Others have accepted the criticism, taking over the narrow empiricist view on ‘science’ and tried to make legal scholarship fit that model.² In the nineteenth century, this kind of reaction gave birth to ‘legal theory’ in the sense of a ‘positive science of law’, a kind of empirical ‘natural law’, a search for legal concepts, legal rules and legal principles that the whole of mankind would share.³ There has been some research in legal anthropology (Maine, Post),⁴ but largely this remained at the stage of a research programme, which has been forgotten as from the First World War. Somewhat similar to this reaction, we have seen, as from the end of the nineteenth century, and mainly in the course of the twentieth century, the birth and development of other social sciences focusing on law: legal sociology, legal psychology, law and economics. All of those disciplines offer empirical research and theory building in legal matters. However, they never aimed at replacing legal doctrine, but just wanted to supply legal scholars, legal practitioners and policymakers with useful information on legal reality. Unfortunately, their impact has remained quite limited. So, today, there is a somewhat schizophrenic situation in which one discipline, legal doctrine, is basically studying law as a normative system, limiting its ‘empirical data’ to legal texts and court decisions, whereas other disciplines study legal reality, law as it is. The outcomes of these two strands of disciplines are not brought together in any systematic way, nor are they combined or integrated at the level of legal scholarship.

Today, in different countries, research assessment and the financial means connected with it have made the empiricist view on science even more influential. This has been to such an extent that it has made lawyers and policymakers in universities think that legal doctrine can only become ‘scientific’ if it turns into an empirical social science (de Geest). In other words, the aim is to put an end to a tradition of more than two millennia and to imitate the empirical sciences that have a different goal. Instead of concluding that the monist view on science, based on physics, is wrong, ‘falsified’ in their terminology, because it does not fit with disciplines such as legal doctrine, some have concluded that legal doctrine is (completely) wrong, and has always been so. This is a dangerous development, which, starting from false assumptions (unity and similarity of all scientific disciplines) is jeopardising the future of human sciences in general and legal doctrine in particular.

Of course, the criticism of legal doctrine is partly founded: it is often too descriptive, too autopoietic, without taking the context of the law sufficiently into account; it lacks a clear methodology and the methods of legal doctrine seem to be identical to those of legal practice; it is too parochial, limited to very small scientific communities, because of specialisation and geographical limits; there is not much difference between publications of legal practitioners and of legal scholars. All this may be correct, but as such it does not disqualify legal doctrine as a discipline in its own right, with its own, appropriate, methods.

In this chapter, I will define legal doctrine as an ‘empirical-hermeneutical discipline’. Indeed, it has empirical aspects, which make it perfectly comparable with all empirical disciplines, but the core business of legal doctrine is interpretation, which it has also in common with some other disciplines (theology, study of literature).

How can we describe the methodology of legal doctrine in a terminology which is largely used in the scientific community, without narrowing it in such a way that we lose essential characteristics of this discipline?

Legal doctrine has, in the course of history, been practised and conceived in varying ways, emphasising, and sometimes overemphasising, diverging characteristics of this discipline. Below, we will discuss the different angles from which legal doctrine has been presented and the extent to which they give a true picture of this discipline. It will be followed by an analysis of the methodology of legal research in terms of hypotheses and theory building.

II. WHAT KIND OF DISCIPLINE IS LEGAL DOCTRINE?

A. A Hermeneutic Discipline

It can hardly be denied that legal scholars are often interpreting texts and arguing about a choice among diverging interpretations. In this way, legal doctrine is a hermeneutic discipline, in the same way as is, for example, the study of literature, or to a somewhat lesser extent, history. Interpreting texts has been the core business of legal doctrine since it started in the Roman Empire.⁵

In a hermeneutic discipline, texts and documents are the main research object and their interpretation, according to standard methods, is the main activity of the researcher. This is clearly the case with legal doctrine.

Often legal scholarship has been presented as another type of ‘science’, in which the hermeneutic dimension is minimised, or at least made less important. This was done, for instance, when scholars tried to distinguish legal scholarship from legal practice, or to separate the description of the law more clearly from its evaluation, or when legal scholarship was modelled along the lines of the methodology of other disciplines and more specifically of the positive sciences.

B. An Argumentative Discipline

Close to the conception of legal doctrine as a hermeneutic discipline is the conception of an argumentative discipline. Here, it is the argumentation to support some legal interpretation or solution that is emphasised, rather than the interpretation as such.⁶ The argumentative view has the advantage of putting things into a broader perspective. It allows us to take a step back from the interpreted text or any other document. A concrete legal question can be answered, or a case solved, on the basis of generally accepted, or at least acceptable, views. In traditional argumentation theory they are called ‘topoi’⁷. In many cases the argumentation will support some interpretation of one or more texts, but in other cases the argumentation may only loosely be related to such texts, eg when based on unwritten legal principles, or when filling gaps in the law, or when a text is simply put aside in favour of an interest or value that is considered to be more important.

From the Middle-Ages until the seventeenth century legal doctrine has developed as an argumentative discipline, which determined what kind of arguments were acceptable in which cases, with whole catalogues of arguments.⁸ Actually, interpretation and argumentation cannot be separated from each other, both in legal doctrine and in legal practice. Each text interpretation needs arguments when diverging interpretations could reasonably be sustained, and a legal argumentation will almost always be based on interpreted texts. So, legal doctrine and legal practice are both hermeneutic and argumentative, but interpretation and argumentation appear to be roughly two sides of the same activity, in which interpretation is the goal and argumentation the means for sustaining that interpretation. Hence, if one has to choose it would seem more appropriate to label legal doctrine a ‘hermeneutic discipline’ rather than an argumentative one.

C. An Empirical Discipline

As already mentioned above, since the nineteenth century and under the influence of the success of the positive sciences, attempts have been made to develop legal scholarship as an empirical discipline.⁹ This has been quite explicitly worded by Alf Ross:

The interpretation of the doctrinal study of law presented in this book rests upon the postulate that the principle of verification must apply also to this field of cognition – that the doctrinal study of law must be recognised as an empirical social science.¹⁰

According to Ross, this empirical verification takes place by checking statements in legal doctrine against judicial practice: ‘Our interpretation, based on the preceding analysis, is that the real content of doctrinal propositions refers to the actions of the courts under certain conditions.’¹¹

This view is typical for the realist movements. Ross was the last important representative of Scandinavian realism, but here Ross comes quite close to American realism: ‘The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the law’, in the well known wording by Oliver Wendell Holmes.¹² Ross’ conception of legal doctrine as an empirical discipline only fits in such a ‘realistic’ approach. Today, this realistic movement is not very popular in Europe, not even in Scandinavia. Hence, this conception of legal doctrine cannot be considered to be a workable model as such.

Others have argued that the phenomena which are observed and studied by legal scholars are in fact their empirical data and amount to ‘legal rules’.¹³ It is, however, to be questioned whether ‘legal rules’ can be observed empirically. If not, where and how do we find them? For Gerrit De Geest they are found through the reading of published judicial decisions. This view suggests that those rules only ‘exist’ to the extent that they have been applied by judges. In this way, De Geest is following Alf Ross and American realism. However, De Geest partly contradicts himself when defining the ‘empirical truth’ in interpreting the law as ‘what the legislator or judge really meant’.¹⁴ As methods used in this context, he mentions:

(a) text analysis;

(b) logic (eg syllogism);

(c) field research (including interviews);

(d) statistics; and

(e) methods of historical research.¹⁵

It is interesting to note that no psychological methods are mentioned as a possible means to discover what a judge or legislator ‘really meant’. Without further discussing De Geest’s position here, it is obvious that his label ‘empirical research’ covers a large variety of elements, which show (also according to De Geest) that legal doctrine is partly a hermeneutic discipline (text analysis), an axiomatic discipline (logic) and a historical discipline. Indeed, legal doctrine cannot be reduced to one single type of discipline, but is a combination of several of them. Of course, some may be considered to be more important, or decisive, or typical than others, but, unlike some other disciplines, such as mathematics, it is not one-dimensional.

In Hans Albert’s view, the object of an empirical legal doctrine is broader than just legal rules. It also includes the influence of those rules on the members of the society in question.¹⁶ This means a combination of traditional legal doctrine with legal sociology. There are good reasons for such an approach, but putting it into practice seems to be very difficult in most cases. Moreover, one may also have to include other disciplines, such as economics, psychology and the like. However, including all this in legal doctrine raises even more questions as to its feasibility.

For the Historical School in nineteenth century Germany¹⁷ and a somewhat comparable movement in the United States in the same period,¹⁸ historical elements constituted the most important empirical data:

Man is to be studied in every period of his social existence, from the savage to the civilized state, in order to perceive the great truth, that in every condition of freedom, of intelligence, of commerce, and of wealth, his habits, his virtues, his vices, the objects of his desires, and hence the laws necessary for his government, are essentially the same.¹⁹

This approach clearly represents a belief in a kind of ‘natural law’ which could be retrieved empirically. This idea used to be quite popular in Europe and in the United States in the nineteenth century, but seems to have almost completely disappeared today.

For others, the object of the empirical research is sociological, economical or socio-psychological data, or more generally ‘human behaviour’.²⁰

Empirical research is most notably useful in disciplines such as physics, where a reality is studied which exists independently of this discipline. In disciplines such as mathematics or theology, empirical research does not seem to be quite relevant. Mathematical models and theological views create their own reality, which, by definition, cannot be checked empirically. The same is largely true for legal doctrine as well. Whether a certain law ‘exists’ may be checked ‘empirically’, but what legal doctrine is mainly about is the interpretation of that law or its balancing with other laws or legal principles.

Interpretations are underpinned with arguments and these arguments may partly refer to an ‘objective’ reality. To this extent the correctness of arguments may be checked empirically. However, most arguments in legal reasoning are not ‘true’ or ‘false’ but more or less convincing. They do not qualify for an empirica...