CHAPTER HAS been formed as part of a discussion between Pauline Westerman and I. As she stated in footnote 1 of her chapter in this volume, in 2008 she and her colleague Marc Wissink wrote an article in the Dutch Nederlands Juristenblad (NJB) on legal scholarship as an academic discipline.1 She summarised this article in sections I. and II. of her chapter.
I quite disagreed with the article in the Nederlands Juristenblad and I criticised it in a paper entitled ‘Does Legal Scholarship Benefit from a Broad Floodlight?’2 The title was inspired by the position Westerman and Wissink took up. They state that in all sciences, the scientific character of the research is determined largely by how and to what extent the data is interpreted within a theoretical framework. This holds true for legal scholarship as well. The only distinction they see is that both the interpretation and the theoretical framework within legal scholarship are viewed differently than in other sciences. They explain these differences through posing two questions: ‘What is being interpreted?’ and ‘What is the purpose of the interpretation?’. In answering the first question, the legal scholar differs greatly from, for example, the empirical scientist, but there is much similarity with scholars such as researchers in literature, idea historians or biblical exegetes. The latter scholars devote themselves to texts, just as legal scholars do. The researchers in literature, idea historians or biblical exegetes do this to gain a better understanding of the author or period they are studying. Westerman and Wissink maintain that these categories of scholars may use hypothesis and underlying theory in much the same way as empirical scientists, but only to a certain extent. There is a limit: the text has to be interpreted as a whole as much as possible, which is at odds with strict hypothesis and theories because, they say, ‘(t)heorizing degenerates into prejudice’. Also, a little further down, applying this to legal scholars: ‘The hermeneutical legal scholar benefits more from a broad floodlight.’3
I do not object to anything up to this point. On the contrary: it would seem to me that most lawyers wholeheartedly agree that a good legal scholar needs to see the full breadth of the theoretical floodlight, and not only that. They will add that the same is true for practical lawyers, such as judges, barristers, solicitors, company lawyers, notary publics and legislative lawyers. I feel that it can be extended even further, and that all scholars need to meet this demand within their field, if not all professionals. Someone with a broad view is able to think associatively and can be creative and innovative, for example when they make connections that others do not see, or shed new light from an unexpected angle on an existing problem. On the other hand, it is far from impossible for a specialist in a specific area of law or another field to present surprising ideas, especially because they have such a full command of the subject.
My fundamental objection against Westerman and Wissink is, therefore, not that they expected a broad view from legal researchers, but that they consider this broad view incompatible with any other theoretical perspective than ‘the’ legal system. In their article they posit that in legal scholarship only one floodlight, meaning one hypothesis, one theoretical perspective is valid: the consistency and coherence of the legal system. The legal scholar must interpret the rules and principles of law with the aim of integrating new social or legal issues into the existing legal system.
But how is this done? The only way is by using certain basic concepts and principles within the system itself. . . . This means nothing less than that the legal system, which is the subject of the research, is also the theoretical framework. In legal scholarship, object and theoretical perspective are the same.4
The way I understood their view, is that they fear another hypothesis, another perspective would fail to encompass the full extent of available texts and therefore the fullness of law and the legal system. Westerman and Wissink do not see the system as static, closed or unchanging, as integrating something into the system is also changing the system to fit a reality that is constantly in motion. This means that legal systems are open and continuously developing.
They identified three consequences of the identity of object and theoretical perspective in legal scholarship: first, the tight link between legal scholarship and practice; second, the predominantly national orientation, even though the advancing influence of Europe and the international community will result in a more internationally oriented legal scholarship; and third, that the ability to innovate is important, but not the only virtue of good scholarship, because good legal scholars
must also be ingenious in finding arguments, they must be able to fit these into a logical framework, and above all, they must have a comprehensive view of a certain field. A comprehensive view here means that they should be able to encompass the entire breadth of the theoretical floodlight – the legal system -, which enables them to consistently accommodate the various perspectives.5
(a) she does not take up a normative position, but merely inquires as to what legal researchers commonly and actually do, ie conducting legal doctrinal research6 7;
(b) in section I. and II. of her paper she exclusively confines herself to an analysis and description of what she considers the characteristics of that prevailing type of legal scholarship; and
(c) in accordance with the suggestion of the organisers of the Tilburg Conference, she qualifies other forms of legal scholarship as ‘legal science’, distinctive from ‘legal doctrine’.
The starting point of my comment is that Westerman repeats the key characteristic of legal doctrine she identified in the NJB article several times: legal doctrinal scholars not only use the legal system as their subject of inquiry, but also as their theoretical framework.8 In this paper she has embedded her central finding in a new9 discussion, which concerns the extent to which a legal system can be considered as autonomous, and the extent to which the legal system should (her italics) be open to political, economical, financial, social and cultural considerations and influences from outside the legal system. She uses her analysis and description of legal doctrinal research and its central finding as one extreme position on legal scholarship, which she compares with other approaches. Her line of argument is, in short, that different views on legal research (what should be done?) lead to different legal methodologies, but that in the end both are reflections on what one considers to be law.
II. THE IDENTITY OF SUBJECT AND THEORETICAL FRAMEWORK: FOUR OBJECTIONS
The first objection against the central finding is that it is often far from clear which system shapes the perspective of the researcher, or should shape it. In many cases the researcher first needs to select the appropriate system before they can start. In contract and tort law alone, there are hundreds of systems (and subsystems, but I will ignore that complication).
This can be illustrated with some examples. Rent law, labour law and financial law each constitute their own system. However, they can be connected by general contract and tort law, which would lead to a different systematisation and possibly to different answers to questions. It would also be possible to class them, together with purchasing and misleading advertising, for example, as part of consumer law, an area of law with accents that partly differ from general contract and tort law. Another example is cyber law, a relatively new field. The question is whether it is comparable to offline law, or whether it has its own concepts, rules and principles. For now, this question remains unanswered.10 So what should be done? The same is true for private law that originated in Europe. Is this a separate system, distinct from national systems, because it is primarily aimed towards the internal market and protecting consumers, while national private law strives to serve a wider range of interests? If one assumes this to be the case, which is the most common opinion, both systems need to be tailored to each other, which means that European private law needs to be integrated in national systems. This is often a painful process, because the two systems are incompatible in many ways. In this approach, researchers remain focused on their own legal system and the orientation is primarily national. A newer, and more difficult, approach is to view private law in Europe as a single, multi-layered system, in which elements of public and private law, procedural law and substantive law, national law and European law, state and non-state law must be forged into a new whole.11
In all these examples, the answers to legal questions depend on the system from which the researcher tries to find them, in order: from rent law, general contract and tort law, consumer law, cyber law or European law as a single, multi-layered system. How can they determine their choice, meaning how can they choose what floodlight to use, the system that must be the starting and ending point of all legal doctrinal research as Westerman analysis describes it? It is as clear as day that this choice needs to be made first. This holds true on a micro-level as well. Here, we no longer speak of systems, but rather of doctrines. Does the case fall under the reversal of the burden of proof, or under the duty to provide prima facie evidence? Should the legal question be placed within the framework of dissolution of contracts, or in the wider perspective of remedies (dissolution, cancellation, annulment and adaptation of contracts)? Does it concern kindness among friends without legally binding force, or a binding contract? Should it fall under the rule of unlawful enrichment, contract or tort? Sometimes doctrines disappear, such as acceptance of risk, or new ones develop, such as duties to inform and, of late, duties of care. It would be easy to provide dozens of examples, but my point is made.
The second reason why I disagree with the key characteristic of legal doctrinal research Westerman identifies – the identity of subject and theoretical perspective – is that, even when the applicable system is certain or has been chosen, it is often not clear which viewpoints fall within that system and which do not. The congealed weighing of interests that is anchored in legal rules12 and which results in relevant viewpoints is not set in stone. A system is, as already said, always in development and thus basically open. The validity of viewpoints needs to be tested over and over again, to determine whether their relative worth has changed, and to see whether new viewpoints or factors have arisen. These tests are always necessary, even more so when the question concerns new situations and developments which sometimes require that existing distinctions are amended or expanded, so that a productive new weighing of interests can yield socially useful and improved law. Sometimes, the researcher comes up with a surprising new angle or association and presses for changes in the system. Is this allowed, desirable or perhaps even necessary? I think the answer is an emphatic yes, but in relation to the view that subject and theoretical perspective coincide, the question is how to determine whether the new balancing, new viewpoints, new distinctions or new angles the researcher wants to introduce stay within the limits of the developing system, especially taking into account that changes often have unforeseeable consequences in other parts of the law or for other doctrines. Yet, how do we clarify what a researcher is allowed to do?