Open or Autonomous? The Debate on Legal Methodology as a Reflection of the Debate on Law

II.  THE PROBLEM OF THE LACKING THIRD

In order to analyse the kind of research that is nowadays commonly carried out at universities in Western Europe, at least in the Netherlands, it is worthwhile to ask what kind of questions are usually addressed by such researchers. What are the kinds of problems they address and from which theoretical framework do they start?

Now some of us will immediately reply that there are no such questions. They will complain that characteristic for a lot of legal research is the lack of a theoretical framework and the lack of any focused leading questions that will serve as a guideline for inquiry. Most of this research, it is said, consists in pure description of positive law, the existing set of rules, standards, legal arrangements and practices, by an author who does not seem to have any particular question in mind, let alone a theoretical perspective.

Indeed, it should be conceded that an explicit theoretical perspective is often lacking. Most of the time, we can only guess at the questions that drove the legal scholar to writing the lengthy treatises that are produced at law schools. I am myself trained as a philosopher, and I must confess, that initially, in the first years of working at a Law Faculty, I found this lack of theoretical perspective very hard to swallow. How could my new colleagues just sit down to write a piece without knowing what they wanted to know?

Not only legal developments but also new social developments are studied in this way. Again, existing legal concepts and categories are studied as to their capability to accommodate for these new developments. Recommendations are drawn up in order to fit in these novelties in the legal system in such a way that the integrity and coherence of the legal system is preserved. If new interpretations or new distinctions are proposed, they are commonly justified by reference to the coherence of the legal system as such or by reference to some important underlying legal principles.

The work of my legal colleagues reminded me very much of my mother, who, after having bought a new item for the household, was always busy, for hours it seemed, to find a proper place for it. It commonly brought with it a massive rearrangement of the entire household, cupboards had to be rearranged, but after all that was done our apartment looked as if nothing had happened and as if the order had never been upset.

The comparison with my mother made it clear to me why my colleagues were not disturbed by the lack of a leading theoretical question. Just like my mother, they knew very well what to do. They felt the pressing need to put everything in order. To all concerned there is no doubt as to what the enterprise consists of. That is why legal scholars, in their research proposals, usually confine themselves to pointing out what will be investigated (the novel item), rather than how. If you ask them about the methods to be employed, most legal scholars retort that this is something that cannot be foreseen or anticipated, but which will be clarified during the process of researching. This again testifies to the appropriateness of the comparison with my mother, who also could not really tell beforehand whether the new item could easily be fitted in or not. This all depends on both the features of the newly bought item and the existing furniture. It does not depend on any third item.

It seems that, indeed, legal doctrinal research is marked by the absence of an independent third, an independent theoretical perspective that enables the researcher to assess the scope and nature of both the new item and the existing order. But how is that possible? How can the legal researcher make sense of these new developments without an independent theoretical point of view? If Popper is right and if all scientific research is necessarily theory-laden,² how can the legal researcher do without?

III.  LEGAL SYSTEM AS THEORETICAL FRAMEWORK

The legal system itself provides the concepts required in order to study a certain legal or social development. That means that the law is not only the object of research, but also the theoretical perspective from which that object is studied. Its concepts and categories are not only concepts used by the officials who make, interpret and apply the law, but are at the same time the conceptual tools to be used by the legal scholar.

If we keep this in mind, some peculiarities of legal doctrinal research can be understood as being essential, in the sense of intrinsically connected to the enterprise itself. The first concerns the practical orientation of legal scholarship; the second refers to the importance of overview and the third concerns the intrinsic normativity of legal doctrinal research.

A.  Practical Orientation

As Radbruch remarked,³ neither legal practitioners nor legal scholars are interested in general propositions. Their primary concern is to deal successfully with a particular case. The judge may handle the case by deciding it; the legislator may deal with it by drafting a law pertaining to the particular case, and the legal academic may handle it by assigning it a place within the legal system. What all these people actually do when handling the case may vary, but for all of them, legal knowledge is not sought for its own sake but in order to handle the particular case. Furthermore, for all these figures, whether practitioner or theorist, the legal system functions as a theoretical framework that selects facts and highlights them as legally relevant ones. That means that the legal doctrinal researcher does not adopt a standpoint vis-à-vis the legal system that is different from the practitioner. The researcher does not set out to understand the legal system, but his or her energy is primarily directed to give sense and to order new cases or developments. The shift from an academic career to a career in the judiciary does not involve a radical change in one’s outlook and perspective. It mainly involves a change in what one does with a certain case.

The difference between understanding and ordering also pervades comparative legal research. I think it is helpful to distinguish between comparative research which aims at increasing one’s knowledge about legal systems, their structure or function, and comparative research which is undertaken with the aim of getting some fresh ideas concerning a good and workable order. Whereas the former kind of research may be interdisciplinary in nature, as is maintained in some contributions to this volume, this does not hold for the latter approach to comparative research. There, comparisons serve to arrive in a good order; they are comparable to my mother’s frequent allusions as to how the neighbours had arranged their flat.

B.  The Importance of Overview

C.  Normativity

So, a good legal scholar gives an account of law that maximises both systematic integrity and historical continuity. But these features are not only thought of as virtues of a good theory. Rational reconstruction is not carried out for its own sake, but is a means to a further end. For the judge, that further end consists of reaching good decisions, for the legal researcher the end consists of proposing a coherent, meaningful and workable new arrangement. Integrity, coherence and continuity are also, and more importantly, virtues of a good legal system. The criteria for good legal research (good ordering) are not separated from the criteria for a good legal system (order). What is thought to be good legal research depends on what is thought to be good law. Just as my mother did not regard her ordering activities successful if they did not result in tidy cupboards, the quality of legal research depends on the outcome: the rearrangement that is proposed. The outcome is judged by reference to multiple criteria. Coherence and consistency are such important criteria, as are practicality and effectiveness. Legitimacy or downright fairness may be felt to be as important if not more important than mere coherence.

Apart from these essential characteristics, that are inherent to the aim of legal research to establish order, we may distinguish a few characteristics that are contingent on the kind of legal system that is studied and which, as I argued, forms the theoretical framework at the same time.

The first of these is the alleged national character of legal doctrinal research. The willingness to publish in international journals and to address an international audience is indeed very limited in those areas of law which are mainly relevant within a certain national culture. We have to keep in mind that since the theoretical background is formed by the legal system itself, possibilities of communicating one’s findings and solutions in terms that are accessible to foreigners are limited, for they are living in a different legal system. However, the more the national legal order is pervaded by European and international law, the study of law will no doubt internationalise as well. This development is not dependent on the willingness of the scholars themselves, but is simply dictated by the mere identity of object and theoretical framework.

The second contingent feature consists in the degree of innovation that is allowed. Contrary to what is often said,⁸ legal doctrine is not essentially conservative. It can be conservative in times of great social stability. But if a certain legal order is confronted with frequent changes, and if new items should be fitted in regularly, legal research is compelled to be innovative as well. Its aim is not to restore order, but to find a new order, and to rearrange matters in such a way that the new development fits in. In such legal systems reconstructive work is constantly carried out. We have, however, to keep in mind that such a reconstruction is carried out on the basis of the existing network of concepts and categories. If legal scholars are regarded as a conservative lot, that is probably due to the fact that they start from the existing legal order as their theoretical framework. But that does not mean that they are not prepared to propose changes to that order, either piecemeal or drastically if need be.

IV.  LEGAL DOCTRINE AND LEGAL SCIENCE

These disciplines, different as they may be, are marked by a more or less independent theoretical perspective and thus do not share the characteristics mentioned above. They may be normative – as political theory or philosophy – but they are not necessarily so. In judging and evaluating a certain legal arrangement they may be informed by legal principles and other criteria that are generally respected within the legal system, but not necessarily so, and more often than not they go ‘beyond’ these principles by examining and questioning their status as such. These disciplines may also be practice-oriented, such as economy or sociology, aiming at either enhancing effectiveness or efficiency, but they do not restrict themselves to enquiries concerning the best legal arrangements. They may include other means in order to maximise these virtues. Unlike legal doctrine, the features of legal science are not bound up with the features of the legal system. The degree to which they address an international audience, as well as the degree of innovation are not determined by the degree of internationalisation and innovation by the legal system. These features are determined by the theoretical perspective, which is, in the case of these disciplines, independent from the legal system.

Although I think that this distinction between legal science and legal doctrine is vital for an understanding of what legal scholars do, we should keep in mind, however, that it is not a rigid one. We may differentiate between those who take the legal system as their vantage-point and those who do not, but it is not always easy to decide whether a certain concept belongs to the legal system or whether it is derived from some sort of external theory. How do we draw the line between what is within and what is outside the legal system? Since the distinction between legal doctrine and legal science depends on the question whether the theoretical framework is formed by the legal system or by something else, the distinction depends on how we draw the boundaries between the legal system and its surroundings.

What we might expect is that pleas for a legal discipline as a discipline with a proper methodology, distinguishable from other methodologies, are accompanied by claims concerning the autonomy of law. And vice versa, we might expect that as soon as the autonomy of the legal system is questioned or doubted, the legal scholar will inevitably be confronted with the charge that he or she is not only lacking any real subject-matter, but that he or she is also lacking a proper theoretical framework, which is different from the theories of other social sciences. As soon as people start to doubt the possibility and desirability of singling out exclusively ‘legal’ phenomena, or to capture phenomena by ordering them in exclusively ‘legal’ categories, thereby differentiating the legal from the non-legal, the question concerning a proper legal methodology will revive in full strength.

V.  THE QUEST FOR ONGOING ABSTRACTION

It is time to substantiate these claims and I think that there is no better way to do this than by examining two extreme positions. This is not to suggest that the debate is conducted between extremists of both camps. Rather, most positions can be located at some point between these extremes. However, an analysis of extreme positions will clarify the scope of the playing field. At one end of the continuum we find seventeenth century natural law theorists such as Hugo Grotius, whereas at the other end we hear the radically opposite voice of von Jhering in mid-nineteenth century Germany.

‘Let the cobbler stick to his last’, Samuel Pufendorf wrote in his foreword to the De Jure Naturae et Gentium⁹ and do not let ‘the theologians and politicians meddle with business of which they are ignorant’. He is echoing Grotius who, in the prolegomena to his De Jure Belli,¹⁰ boasts that before him, no one studied the law ‘in a universal and methodological way’. What did Grotius then understand by methodological and universal? He understood that as the systematic effort to deduce more geometrico