The Mind and Method of the Legal

Academic

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SMITS 9780857936547 PRINT.indd ii 13/08/2012 08:19
 The Mind and
Method of the Legal
Academic

Jan M. Smits
Maastricht University, The Netherlands

Edward Elgar
Cheltenham, UK • Northampton, MA, USA

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 © Jan M. Smits 2012

All rights reserved. No part of this publication may be reproduced,

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 Contents
Preface viii

Introduction: a discipline in crisis? 1

1. An identity crisis 1
2. Legal science at the crossroads 4
3. A rediscovery of the legal approach? 6
4. Structure of the argument 7

I Legal science: a typology 8

1. Introduction 8
5. Four types of legal scholarship 8
2. Descriptive legal science 11
6. Introduction 11
7. Description: the doctrinal approach 13
8. Systematization 15
9. Normative consequences of systematization 17
10. An internal perspective 20
11. Description in legal science: alternative
approaches 21
12. Sociological description of law 22
13. Economic description of law 23
14. Historical description of law 24
15. Comparative description of law 25
3. Empirical legal scholarship 28
16. Research on the effects of law 28
4. The theoretical perspective 32
17. Research about law 32
5. What is next? 34
18. Continuing the debate 34

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 vi The mind and method of the legal academic

II The Homo juridicus: towards a redefinition of

normative legal science 35
1. Introduction 35
19. Course of the argument 35
2. What makes an academic discipline? 35
20. Academic disciplines 35
21. Requirements of an academic discipline 37
22. Requirements of (descriptive) legal science 39
3. Normative legal science: in search of the Homo
juridicus 41
23. The legal perspective 41
24. Away from the normative haze 43
25. The need for an external normative perspective 44
26. Other normative disciplines 47
4. Law as spontaneous order 48
27. Theoretical background 48
28. Some consequences 51
29. What is next? What is legally required? 57

III Methodology of normative legal science 58

1. Law as the discipline of conflicting arguments 58
30. Introduction 58
31. Structure of this chapter 59
32. Searching for the stone of wisdom 60
33. What ought to be? The doctrinal approach 61
34. What ought to be? The role of Law and Economics 62
35. What ought to be? The empirical approach 66
36. What ought to be? Fundamental rights as
cornerstones 70
37. Intermediate conclusion: normative uncertainty is
both inevitable and desirable 73
2. Towards an empirical-normative approach 74
38. Are personal preferences decisive? 74
39. The empirical-normative method 76
40. An argumentative discipline 81
41. Example: the Draft Common Frame of
Reference for European Private Law 83

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 Contents vii

42. Legal science not about finding universal

principles 85
43. When should there be uniformity of law? 88
44. Emphasis on deciding cases; practical wisdom 91
45. The importance of legal doctrine 93
46. Which argument prevails? Comparison without
a tertium 95
3. Conclusions 97
47. Summary 97
48. Normative scholarship as an academic discipline 98

IV Organization of the legal-academic discourse 100

1. Introduction 100
49. Debate about organization 100
2. Innovation in legal science 101
50. The importance of creativity 101
51. Innovative research: many types 104
52. Is there progress in legal science? 106
3. Legal science and methodology 109
53. Introduction 109
54. Research methods and law 110
55. Making choices explicit 114
56. A need for an explicit research question? 116
57. Methodological pluralism 119
4. The research culture in legal academia 122
58. Introduction 122
59. Research programmes 123
60. The market and the importance of fundamental
research 127
61. An alternative approach 133
62. Consequences for legal education 141

Synopsis 149
63. Four claims 149

References 152
Index 175

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 Preface
This book deals with the aims, methods and organization of
legal scholarship. This theme has received a lot of attention in
the last few years but the primary goal of this work is not to
offer an elaborate overview of these recent discussions, which
have taken place in various countries. Instead, the following
pages offer a – sometimes personally inspired – essay on the
diverse aspects of doing academic work in the field of law. The
core of the argument is that legal science should primarily deal
with the ‘ought’ question: ‘What is it that people and organi-
zations are legally obliged to do?’ This question cannot be
answered by mere reference to national legislation or case law,
but should always be based on arguments derived from other
sources. This makes the legal discipline a highly international
one: it does not deal with the positive law of one or more juris-
dictions, but with what is law in general. The many conclu-
sions that follow from this abstract summary will be discussed
in much detail in this book. It deals with questions such as,
‘What is the core of the legal approach?’ and, ‘To what extent
does the law meet the requirements of an academic disci-
pline?’ and addresses the organization and assessment of legal
research and the importance of debate.
It was a pleasure to write this book. Having worked in
various law schools in the past twenty years, I felt the need to
proffer my own views of legal scholarship. This led to insights
that were sometimes surprising even to myself. I hope that
readers will find in this book some of the inspiration that I
experienced while writing it although, to be frank, some may
say that I conceded too much to Herman Melville’s well-
known aphorism that it is better to fail in originality than to
succeed in imitation.

viii

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 Preface ix

I was able to test the thoughts laid down in this book at meet-
ings in Helsinki (KATTI, 21 March 2007), Montréal (McGill
Round Table on Legal Education, 27–28 September 2007),
Maastricht (Conference Methods of Human Rights Research,
24 November 2007), Florence (EUI, 26 November 2007),
Stellenbosch (STIAS, 6–8 December 2007), Tilburg (Research
Group on Methodology of Law and Legal Research, 4 March
2008), Utrecht (SIM, 8 April 2008), Rovaniemi (conference on
30 years of legal education in the University of Lapland, 16
March 2009), Lammi (Nordic Graduate School, 19–20 March
2009) and London (Centre for Transnational Legal Studies,
20 April 2011). An amended Dutch version of this book
(published as Omstreden Rechtswetenschap) was presented at
Tilburg University on 25 November 2009 by way of comments
made by Monica Claes, Jan Vranken, Eric van Damme and
Edgar Du Perron. I profited a great deal from these meet-
ings, as I did from the comments made by Christa Dubois,
Jaap Hage, Jaakko Husa, Milan Janco, Mark Kawakami,
Eric Tjong Tjin Tai and Jan Vranken. Mark Kawakami also
provided excellent language editing.
Maastricht, May 2012

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 Introduction: a discipline in crisis?
1. An Identity Crisis

Traditional legal scholarship is under pressure. In several

countries around the world, a debate has evolved about the
aims and methods of the academic study of law. There are
various aspects to this debate. One question is, what should
legal academics be concerned with: the traditional study of
legislation and case law and its accommodation in the legal
‘system’ (an activity that is increasingly regarded as lacking in
creativity), or with much more elevated themes? Another ques-
tion is about the methods that should be used in legal research
and how this research should be assessed, prompting the ques-
tion, which research is ‘better’ and why should this be the case?
There have also been pleas to organize the legal discipline
more in line with other fields, including the introduction of
rigorous peer review and the classification of journals. Finally,
some have made the claim that legal academics should also be
substantively more oriented towards other fields (in particular
the social sciences) and that legal scholarship should develop
as an international discipline instead of one primarily dealing
with only one national law.

This debate is taking place in several European countries and,

in particular, in the United Kingdom and the Netherlands.
According to Becher (1989, 30), legal academics are seen by their
other colleagues in the university as ‘not really academic. (.  .  .)
Their scholarly activities are thought to be unexciting and uncrea-
tive, comprising a series of intellectual puzzles scattered along
“large areas of description”’. Twining (1994, 141) characterizes
the traditional academic approach to law as ‘narrow, conserva-
tive, illiberal, unrealistic and boring’, with too much attention

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 2 The mind and method of the legal academic

being given to technical details and too little to the ‘big’ questions.
In the Netherlands, the discussion is at least partly the result of
the financial consequences attached to the uncertain status of
the legal discipline: lawyers often have difficulty in convincing
representatives of other disciplines, university administrators
and funding organizations of the quality of their work. See,
for a similar debate in Germany: Ipsen (2005), Engel & Schön
(2007), and Bernhart (2008); and for a general perspective on
methodology, Van Hoecke (2011). In France, a related discussion
is taking place about the merits of doctrinal work: see Jestaz &
Jamin (2004); Pimont (2006); and Muir-Watt (2011). Van Gestel
and Micklitz (2011) make the claim that doctrinal legal research
should be revitalized.

The debate about the aims and methods of legal scholarship

is not limited to Europe. While, in several European coun-
tries, the academic study of law is often seen as not academic
enough, the usual criticism in American law schools is that
there is too much attention to theory and interdisciplinarity in
teaching and research.

The starting point for this debate in the United States is arguably
the well-known article written by Judge Harry T. Edwards (1992),
in which he fulminates about the gap between legal practice and
the, in his view, often irrelevant and mediocre interdisciplinary
work published in the more prestigious law reviews. In addition,
he argued that future lawyers will no longer receive an adequate
legal education that prepares them to practice law as the national
law schools have been moving towards educating academics
instead of lawyers. According to Edwards (1992, 56), however,
‘“personal fascination” is not a justification for scholarship, of
any kind’. Deborah Rhode (2002, 1340) also complains that too
much legal research is not done well: ‘it exhaustively exhumes
unimportant topics or replicates familiar arguments on important
ones’.

Although the debate about aims and methods of academic

work in law has received new impetus in the last decade, it
is not a new discussion. At least since the beginning of the

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 Introduction 3

nineteenth century, the tocsin has sounded over the status of

the legal discipline. Well-known are the cries of distress by
Von Kirchmann (‘The Worthlessness of Jurisprudence as a
Body of Knowledge’) in 1848 and by Lundstedt (‘The Non-
Academic Character of the Legal Discipline’) in 1932. In the
Netherlands, it was Taco Mulder who, in 1937, published
a brochure with the title ‘I Accuse the Faculty of Law of
Being Non-Academic’. While the arguments of these authors
are diverse, they all enter into combat with traditional legal
scholarship.

The plea of Von Kirchmann in 1848 best fits the present discus-
sion: its main point is that legal science differs from most other
academic disciplines because it is the ‘maid of the coincidence’
as it primarily deals with solving uncertainties and gaps in the
positive law. This makes jurists – in Von Kirchmann’s figurative
language – like worms that live only from the putrid wood in the
positive law, in his view a situation fatal to the academic character
of jurisprudence. In his famous words: ‘As the science makes the
coincidental its article, it becomes coincidental itself; three words
changed by the law-maker, and whole libraries become rubbish’
(p. 24).
Lundstedt’s criticism on the other hand is inspired by a specific
(empirical) view of science: because legal academics deal with
justice, and justice is not an observable phenomenon, it is not real
science. The only thing possible is then a ‘positive science of law’
(Adolf Merkel). Others (including those adhering to Austin’s ana-
lytical legal philosophy), however, have fundamentally disputed
this view of what makes a field academic.

It is important to make clear what this criticized ‘traditional’

legal science is really about. The criticism is usually directed to
the doctrinal approach, in which rules, principles and case law
are considered from the internal perspective and in which law
is looked at as being in a relatively autonomous relation to the
social, economic and political reality. It is the positive law as
given by legislatures and courts that forms the starting point
for any meaningful analysis. This positive law can of course

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 4 The mind and method of the legal academic

be criticized, but legal academia accepts the bulk of it as given

and legal practice itself can profit from doctrinal criticism and
systematization. The search for coherence in the given materi-
als is thus seen as an important, if not the most important, part
of academic work.

McCrudden (2006, 633) recently described traditional legal

science as a discipline of ‘critical reasoning based around authori-
tative texts’. Two aspects are important to emphasize. The first
is the central role of legislature and the courts: their decisions
can be criticized, but in the end their texts do have authority.
Cf. Posner (1990, 83): ‘To be blunt, the ultimate ratio of law is
indeed force’ and the classic statement by Hobbes in A Dialogue
Between a Philosopher and a Student of the Common Laws of
England (1681, [2005, 55]): ‘It is not wisdom, but authority that
makes a law.’ The second aspect is that this doctrinal approach
has its own methodology. Even though it may not be clear what
this legal methodology exactly consists of (it entails a certain way
of interpretation, systematization and argumentation), there is
little doubt that it is an autonomous methodology: reference to
other than the own, legal, sources is not needed. Cf. Posner (2002,
1316) and Ibbetson (2003, 864), and for the internal perspective
also infra, no. 10.

2. Legal Science at the Crossroads

The arguments made above substantiate the conclusion that

the legal discipline suffers from an identity crisis: not only do
outsiders accuse legal science of being unacademic, but also
legal scholars themselves no longer seem to know which disci-
pline they practice. This crisis is surprising. A midlife crisis it
cannot be: the academic study of law has existed since the very
founding of the University in the Middle Ages. What is more,
empirical science itself originally derived its methods from the
law, through scholars like Francis Bacon. In the nineteenth
century, legal science was seen as one of the most important
achievements of human civilization and even superior to many
other academic disciplines.

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 Introduction 5

This was not only true for continental Europe but also in the
Anglo-American world. David Dudley Field (1859, 13–14) thus
stated about legal scholarship: ‘Compare this science with any of
the other sciences; with those which are esteemed the greatest in
extent, and the most exalted in subject. Take even astronomy, that
noble science (. . .). Sublime as this science is, it is but the science
on inanimate matter, and a few natural laws; while the  science
which is the subject of our discourse governs the actions of human
beings, intelligent and immortal, penetrates into the secrets of
their souls, subdues their wills, and adapts itself to the endless
variety of their wants, motives and conditions’.

The image that the outside world has of legal academics is

apparently no longer based on these (or other) merits. The
general tendency is to say that ‘real’ knowledge cannot be
based upon conceptual constructions, the finding of coherence,
or the development of abstract theories (all important parts of
the ‘internal’ approach to law) but should rest on empirical
work instead. This was well expressed by the famous theoreti-
cal physicist, Richard Feynman, when he deemed experiment
to be ‘the sole judge of scientific truth’. Although this debate
about the nature of academic work has been in existence since
the seventeenth century, it seems that law is now much more
influenced by empiricism than it was in the past.
One result of this influence is that we now also see a shift
from traditional legal scholarship towards a more interdisci-
plinary and empirical approach. It seems that legal science is at
a crossroads in its long career. As Thomas Ulen states: ‘Legal
scholarship is on the verge of a dramatically different manner
of doing routine legal investigation. Put in a nutshell, that
change is to make law much like the other disciplines in the
university that believe themselves to be practicing “science”
(.  .  .)’ What Ulen describes has already largely materialized
in the United States and is seen by many as an attractive way
forward for Europe as well.

See Feynman (1964) and Ulen (2002, 2); cf. Stolker (2003) for
the Netherlands and Cownie (2004, 72) for the United Kingdom.

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 6 The mind and method of the legal academic

This begs the question to what extent the traditional, doctrinal,

method of doing academic work in law can survive if other
methods of research can claim more recognition from the aca-
demic community. Empirical and interdisciplinary work in law
(including ‘law and . . .’ approaches) already has a clearly higher
status in the United States than doctrinal work. The locus clas-
sicus for a survey of this development is Posner (1987). This also
means that law is increasingly becoming the domain of econo-
mists, philosophers, sociologists and psychologists. McCrudden
(2006, 641) sees this development even as ‘(. . .) the growth of an
approach to law that may challenge the idea of legal scholarship
as a separate craft’. See also, for a possible explanation of this
development, Lawrence Lessig (2011).

3. A Rediscovery of the Legal Approach?

The previous sections provide the background for this book.

The main question addressed in the following section is
whether traditional legal science is an autonomous discipline
and, if so, to what extent. Moreover, the question is asked,
what are the aims and methods of traditional work in law and
how do they relate to other academic approaches to law and
to other fields (such as economics and empirical sciences)? The
answer requires an extensive discussion of various aspects of
present academic practice as well as a more personal vision
of what legal research should be about. This means that the
argument put forward in this book is rather personal.

This book is difficult to categorize. It deals with aspects of legal

theory, legal methodology and the sociology of science, but also
with positive law and policy questions. Examples come mainly
(but not exclusively) from the field of private law.

The main thesis of this book is that the development sketched

above, in which external approaches towards law get the
upper hand, is a dangerous one. There is little doubt that the
law can profit from the insights of other disciplines. However,
this does not mean that the normative approach towards law

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 Introduction 7

should be abandoned. On the contrary: the core question

should not be how other disciplines can help us in making
the academic study of law more ‘scientific’ but how the legal
approach itself can better meet the expectations that one may
have of an academic discipline. Put in a somewhat paradoxical
manner: there is every reason to rediscover the legal approach
to the law.

The idea that legal academics should primarily look at other dis-
ciplines for a recalibration of their field is widespread. Richard
Posner is closely associated with this view. Cf. infra, no. 25.

4. Structure of the Argument

Before discussing my own view of what legal science is about,

it is useful to describe the various types of legal scholarship
that are feasible. Chapter I describes these types of research
by looking at their aims and methodology. Chapter II is
devoted to what is, in my view, the main aim of legal scholar-
ship: to reflect upon the normative question of what the law
ought to be. Chapter III builds upon this view by going into
the accompanying methodology. To conclude, Chapter IV is
devoted to a discussion of the main consequences of this view
for the organization of legal research and teaching, and for
the value of creative research and methodology. The synopsis
revisits the claim that legal science is in a state of crisis: the
arguments presented throughout the book will allow us to
exhibit a definitive answer to the question and to the extent of
the predicament.

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 I. Legal science: a typology
1. INTRODUCTION

5. Four Types of Legal Scholarship

It is clear that the term ‘legal scholarship’ covers many differ-

ent types of research. And yet, there is only paltry discussion
about how to categorize the various research efforts in law.
This chapter aims to distinguish between ways of doing legal
research on the basis of the questions one can ask about the
law.

The classification of legal research can also be based on other cri-

teria. A common one is to follow the ever-increasing subdivisions
within the legal field. In so far as the existence of separate profes-
sorial chairs and law journals is a criterion for qualifying a field as
a separate sub-discipline, one can only conclude that many new
fields have emerged in the last fifty years. Everything that, until
the 1950s, was often covered by only one chair on private law
now tends to be cut up into separate fields of contract law, tort
law, property law, land law, family law, company law (often again
split up into corporate governance, transport law, insurance
law, intellectual property law, and so on), and insolvency law.
An alternative to this is the so-called functional fields approach,
where the laws are categorized according to some societal issue,
as in the case of social law, construction law and environmental
law, or in line with a certain category of people, as in consumer
law, juvenile law, migration law and the field of law and feminism.
These categorizations have little relevance to questions about
the aim and method of legal research for they only deal with the
substantive matter of what is being investigated, and not with
the investigation itself.

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 Legal science: a typology 9

Four questions can be asked about law.

1. How does the law read? The aim of this type of scholarship
is to describe. This does not necessarily have to be the law
of one’s own jurisdiction as it stands today: it is also possi-
ble to describe the contract law of the province of Holland
in the seventeenth century or the present-day criminal law
of Singapore. A large part of traditional legal science deals
with the description of the positive law.
2. How ought the law to read? Next to describing the law, legal
academics deal with the normative question of how the law
should read. It is quite common to find in an article or a book
both descriptions and judgements, together, about how the
law ought to read. A commentary on a judicial opinion will
usually not only describe it in the light of the ‘system’ of law,
but it will also criticize it and indicate how things could be
done differently. I will claim that the normative question is
at the core of legal science but that, in answering the ques-
tion, legal academics over-emphasize the role of present-day
law in their analysis (see infra, Chapter II).
3. What are the consequences of applying a certain legal rule?
This question leads on to the effect of law on society. This,
so-called, empirical legal science is becoming increasingly
popular among academics.
4. What is law? When is it valid and how does it develop?
These questions are about the (political and moral) legiti-
macy of law, its relationship with other normative systems
(such as morality) and the influence of factors like history,
society and economy on the development of law. This
type of scholarship usually tries to explain the law from an
external perspective. Philosophy of law and legal theory
are the fields that traditionally deal with this.

It should be noted that philosophy of law can be both descriptive

and normative. Rubin (1996, 571) shows that H.L.A. Hart’s The
Concept of Law (1997) of 1961, which was written as a textbook
for first year students, only pretends to describe the existing law,

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 10 The mind and method of the legal academic

while Finnis’ Natural Law and Natural Rights (1980) clearly

shows how the existing legal system should be changed.

I emphasize that this classification of legal questions into dif-

ferent types of ‘research agendas’ is not the sole conceivable
method. A common distinction is the one that is made between
research into the positive law and into interdisciplinary and
multidisciplinary research. While the first is directed to the
study of the present law, interdisciplinary research crosses
the boundaries between the law and other disciplines (as legal
history and legal anthropology have done for a long time and
as the newly established fields of Law and Economics, and Law
and Psychology also aim to do). The less ambitious multidis-
ciplinary research does not aim to investigate a topic in a truly
integrated manner but merely looks at a question from differ-
ent angles. These approaches are in my view mere methods of
research that can be brought into action for all types of research
agenda. Thus, a description of the positive law can take place
by making use of a ‘black letter’ approach, but can also be done
in a multidisciplinary way (see infra, no. 11 ff.). In the same
way, the normative question about the ‘ought’ can be answered
both by looking at the positive law (What ought to be, accord-
ing to the law in force?) and in a more fundamental way (What
ought the law to be like if we leave the positive law aside?).

Rubin (1996, 562; cf. McCrudden 2006) makes use of a similar

classification. In the social sciences it is more common to make
classifications of types of research questions. They usually
distinguish between four types of research (Ruane, 2005, 12 ff.):

● exploration: the discovery of new data. This usually leads to

so-called qualitative information: data that can be described
in words;
● description: description of a phenomenon or of an experiment.
In social science this is often (though not exclusively) put in
quantitative terms;
● explanation: the search for explanations of what has been
described;

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 Legal science: a typology 11

● evaluation: the search for the practical results that the research
can have.

This classification has only limited value for legal scholarship.

This is because research in law is usually not directed to a
description or explanation of facts, but rather aims to dispute
ideas (see infra, Chapter III). A fine overview of the enormous
diversity of legal research is offered by Siems (2008), on which
infra, no. 51.

The next three sections deal with three of the research agendas
identified above. In each section, we will also ask which
methods can be used to follow these agendas. Because of the
great importance of the second question (the normative ques-
tion of how the law ought to read), this one will be discussed
separately in Chapter II.

2. DESCRIPTIVE LEGAL SCIENCE

6. Introduction

This section is devoted to so-called descriptive legal science,

usually seen as a synonym for a legal doctrinal approach or
for legal systematization: the systematic description of the
law in a certain field. This type of legal scholarship is often
no longer regarded as particularly prestigious. And yet, it is
the type of work that most closely resembles the perception of
scientific method in other disciplines and that is still practiced
most commonly at law faculties in Europe and elsewhere.
Insight into the purpose of this activity and its accompany-
ing method can help in ascertaining whether this approach is
rightly criticized or not.
There is not one academic discipline that can do without a
proper description of its research object. In physics, objects are
usually described by a quantification of their characteristics
and behaviour. In the study of history, the objects of study
range from countries to persons to objects that are usually

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 12 The mind and method of the legal academic

described in qualitative terms. In psychology, people’s behav-

iour is studied and its description takes place on the basis of
both statistical and qualitative data.

Simon Schama’s The Embarrassment of Riches (1987) provides a

fine example of ‘description’ in the field of history. It uses a wide
range of methods, including the cultural-historical and compara-
tive method, and is written in a literary style, leading to a type of
creative non-fiction that lies in between literature and scholarship.
I mention this example because it shows how every description is
subjective and to a large extent dependent on the person making
the description. In the field of the humanities, it is usually not the
dry summarization of facts or data that is valued, but rather the
stylistically advanced presentation of facts in a story, which is also
reflected in the appreciation of authors like Schama and Johan
Huizinga.

A proper description of the research object is not possible

without a shared disciplinary framework for what such a
description should look like. Textbooks in many fields pay
attention to this. Thus, physics employs a wide arsenal of
symbols, terms and formulas to describe the physical reality.
In psychology, description usually takes place in both quan-
titative and qualitative terms. History studies employ a wide
range of different methods.

An accurate description of what is observed is of paramount

importance in physics: the attempt to explain the observations
comes only after an accurate description has been established.
For example, see, for (usually mathematical) description, Riley
& Hobson (2006). See, for psychology (in which description –
through case studies or surveys – stands next to the experimental
method and the method to correlate phenomena with each other),
Shaughnessy et al. (2011), for example. Studies in fields such as
history or literature have witnessed an extensive level of debate
about methodology since the 1970s. In addition to textual analy-
sis and comparative methods, literature studies have since added
empirical studies to their methodology. See Guerin et al. (2010)
for more details.

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 Legal science: a typology 13

7. Description: The Doctrinal Approach

This survey of how description takes place in other fields

forms the background to how law can be described. In the
remainder of this section, I will first discuss the usual way of
describing the positive law (nos. 7–10) and will subsequently
go into several alternative approaches (nos. 11–15).
Descriptive legal science is usually equated with a doctrinal,
black letter or dogmatic approach. The usual aim of this type of
description is to present the law in a certain field (such as con-
tract law or administrative law) in a way that is as neutral and
consistent as possible in order to inform the reader how it actu-
ally reads. Examples of this include the description of German
private law in the Münchener Kommentar zum Bürgerlichen
Gesetzbuch, of English constitutional law in Dicey’s An
Introduction to the Law of the Constitution and of American
law in the big treatises. Von Savigny’s monumental System of
the Modern Roman Law (1840–1848 [1979]) also belongs to this
type of scholarship. They are all informed by a desire to place
the prevalent sources of law (including legislation and case law)
in a system and to develop this system further.
The examples given make it clear that it would be wrong
to identify this approach as non-creative. Descriptive legal
science, to the contrary, requires many choices to be made,
from the selection and the interpretation of the materials to
the way in which the materials are presented. Jeremy Bentham
was right when he designated this type of academic work as
‘expository jurisprudence’ (as opposed to ‘censorial juris-
prudence’, dealing with the question of how the law ought
to read). The term ‘expository’ accurately indicates that this
description, as with any presentation, requires the making of
choices and the proper elaboration of these choices.

See Bentham (1789, [1970 Ch. XVII, 21]). Twining (1994, 123,
131ff.) also mentions Blackstone’s Commentaries as an important
example of the expository tradition in law and rightly emphasizes
that ‘even the lowest forms of exposition involve interpretation,

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 14 The mind and method of the legal academic

selection and arrangement of quite elusive data’. Also, the prepa-

ration of restatements of law (such as those published by the
American Law Institute (ALI)) and of the principles of European
private law (as in the European Civil Code project) may seem
only to serve to describe what already exists (for the sake of sim-
plification, as the ALI explicitly aims to do) but, in practice, the
formulation of restatements requires many normative decisions,
such as deciding which specificities of the jurisdictions involved
are to be left out and which are to be elevated to general prin-
ciples. This is because the sources will almost always contradict
each other. In this respect legal academics do not differ from his-
torians: as historians who claim to describe the historical reality in
fact make history, legal academics lay down what is the applicable
law. This does not mean that each description is as original as one
would wish for. The coherent presentation of new materials or the
categorization of old materials on the basis of new criteria require
much more brainpower than the mere accommodation of recent
legislation and judicial decisions in the existing system. If legal
scholarship were fairly criticized for doing only the latter (which
is, in my view, less and less the case), this would be merited: jurists
employed by universities should be more ambitious than only to
want to fit new materials into an existing framework (cf.  infra,
no. 8).

Until recently, the ability to do this type of traditional exposi-

tory work was seen as the best method to distinguish good
lawyers from bad ones, although arguably some aspects of
this thought still persist in many countries around the world.
This is not surprising: Rubin rightly points out that if the pre-
dominant way of thinking about law is a positivist one, or is
based on some idea of natural law, describing the existing law
in terms of underlying principles or rules forms the only real
legal science. According to this particular view of the law as
a system, the emphasis lies on description and legal scholars
should refrain from making normative statements about how
the law should be.

See Rubin (1996, 565): ‘the comprehensive treatise was regarded

as the apogee of scholarly attainment’. This type of work is

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 Legal science: a typology 15

sometimes qualified as recherches ponctuelles (in contrast to

recherches sublimes; cf. Twining (1994, 125).
A well-known advocate of this type of legal formalism, and
hence of the internal perspective on law and the systematizing
method, is Ernest J. Weinrib (1995, 339–340). Weinrib empha-
sizes that formalism presupposes a view of law as an ‘imma-
nently intelligible normative practice’. This means that a legal
system is already justified by its own coherence but will have to
be permanently readjusted on the basis of new judicial decisions
and legislation: ‘Justificatory coherence points not outward to a
transcendent ideal but inward to a harmonious interrelationship
among the constituents of the structure of justification’. From a
different perspective, Ronald Dworkin (1986) also points out the
great importance of this type of coherence. See, on the value of a
doctrinal approach, also infra, no. 45.

There are two aspects of this type of description of law

that have to be worked out: the way in which this descrip-
tion through systematization really takes place (the method)
(nos. 8–9), and the inevitably internal perspective that the
system builder has to adopt (no. 10).

8. Systematization

Which method is used if the law is described as a system? It

seems useful to distinguish between the creation of a system
and the accommodation of new elements within this system.
This distinction is important because once a system is put into
place and accepted by the legal community, creating a new
status quo, it will influence the substantive law in the sense that
deviating from it would prove to be difficult.
To create a system on virgin territory is without a doubt a
highly creative activity. Presenting the law as a coherent set
of concepts, rules and principles by exposing contradictions,
defining concepts and classifying rules and cases, has defined
the history of legal scholarship. The well-known Dutch law
professor and drafter of the new Dutch Civil Code, Eduard M.
Meijers, described this as the ‘dogmatic method’: the scholarly

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 16 The mind and method of the legal academic

cultivation of legal norms or principles on basis of the laws

of logic: ‘One takes a certain set of law matter as given and
then tries to make this more complete in form and substance
without using any other empirical knowledge’.
This systematizing method comes close to what is common
in the natural sciences: the existing materials (produced by
legislatures, courts and others) are described in order to make
them easier for readers to understand, and also to make
their outcomes more predictable. These legal descriptions thus
make it easier for readers to criticize existing materials and to
analyse their impact in a similar manner to the way the laws
of natural science can be exposed and criticized on the basis
of an observation of facts. Cicero was already describing this
working method when he answered Catullus’s question on how
to comprehend the interminable and immense amount of law:

‘These matters Crassus will one day disentangle for us and set forth
arranged under heads; for you must know, Catullus, that yesterday he
promised us that he would collect under definite heads the common law,
at present dispersed in disorder, and would reduce it to an easy system.’

However, it was not until the sixteenth century before, under

the influence of humanism and natural law, and parallel to a
similar development in other fields, a legal mos geometricus
came into existence.

Meijers (1903, 14, 19). It is well known that almost any form of
systematization of law was absent in Roman times (see for the
citation of Cicero: De Oratore (55 BC [1942 II, xxxiii]). It was
through the works of authors like Hugo Donellus (1527–1591)
and Jean Domat (1625–1696) that the mass of amorphous rules
was systematized into a new legal science, ‘just as scientific, just as
dependable and just as certain as the natural sciences of Newton
and Copernicus’ (Van der Walt 1995, 402). However, it lasted
until the nineteenth century before the axiomatic systematiza-
tion of the whole of private law was achieved in the form of the
apogee of legal rationality: Von Savigny’s System of the Modern
Roman Law (1840–1848 [1979]). In this eight-volume work,
all rules found their proper place in the system by way of the

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 Legal science: a typology 17

empirical-deductive method. It led to abstractions such as the

legal act (Rechtsgeschäft) and a general theory of contract law.
Von Savigny himself rightly compared his method to that of
mathematics: ‘In every triangle (. . .) there are certain data from
the relations of which all the rest are necessarily deducible: thus
(.  .  .) the whole triangle is given. In like manner, every part of
our law has points by which the rest may be given. These may be
termed the leading axioms. To distinguish these, and deduce from
them the internal connection, and the precise degree of affinity
which subsists between all juridical notions and rules, is amongst
the most difficult of the problems of jurisprudence. Indeed, it is
peculiarly this which gives our labours the scientific character’
(Von Savigny 1814 [1831, 38–39]).

More recent examples of the systematization of fields that had

until then been uncharted territory are provided by the ‘dis-
covery’ of the reliance principle by the German author Claus-
Wilhelm Canaris (1971), the systematization of new types of
contract by Michael Martinek (1991–1993) and the description
of the English law of restitution by Peter Birks (1985).

It may seem surprising that even Richard Posner (2007, 437)

recognizes the great importance of this type of academic work:
‘The messy work product of the judges and legislators requires
a good deal of tidying up, of synthesis, analysis, restatement,
and critique. These are intellectually demanding tasks, requiring
vast knowledge and the ability (not only brains and knowledge
and judgment, but also Sitzfleisch) to organize dispersed, frag-
mentary, prolix, and rebarbative materials. These are tasks that
lack the theoretical breadth or ambition of scholarship in more
typically academic fields. Yet they are of inestimable importance
to the legal system and of greater social value than much esoteric
interdisciplinary legal scholarship.’ Cf., however, infra, no. 50.

9. Normative Consequences of Systematization

It is important to realise that once a legal system is put in

place – no matter how coincidental its structure may be –
this system will, to a large extent, determine the outcome of

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 18 The mind and method of the legal academic

future descriptions. True, legal academics will always be able

to produce wholly new legal conceptions and distinctions,
but this is usually not seen as very fruitful. In the European-
continental tradition, there is a programmatic desire to con-
tinue the systematization on the basis of the existing legal
system. This means that new rules and cases will almost always
be fitted into the existing categorizations.

See Rothacker (1954) and Smits (2002a). This does not mean that
the accommodation of new materials does not also contribute to
the creation of a system. Legal systems are dynamic: they need to
be worked on permanently in the light of the new materials that
are produced. However, this always happens within the limits of
the system itself: the law is conservative in nature in order to be
able to meet the requirements of legal certainty and equality.

One aspect of this systematization needs to be highlighted.

Legal systematization differs in one important respect from
description in other disciplines – it influences the application
of the law in practice. Because legal academics work on a
system that is also used in practice, important normative con-
sequences can follow from this work. This makes the descrip-
tion of law always normative, even if the person describing it
is not aware of it. Anyone making use of a coherent system
will propagate a change of the law if this fits in with the system
itself. Koopmans describes this as follows:

‘If biologists classify a whale as a mammal instead of as a fish, nothing

changes in the world of facts (. . .). But if jurists qualify a barstool as a
movable object and not as an immovable, they mean to say that in case
of insolvency of the pub owner, it is not the bank that as mortgagee is
entitled to the stool, but the brewery (. . .).’

Any decision to systematize the law in a certain way can thus

have practical consequences. At least in the continental legal
tradition, legal science itself can create law.

Koopmans (1991, 68). The idea that positive law can be found by
academic activity is the product of the nineteenth century. In the

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 Legal science: a typology 19

natural law tradition of authors like Samuel Pufendorf, the aca-

demic activity only consisted of classifying what was law already.
This changed with the emergence of the Begriffsjurisprudenz,
leading to the system being a source of law itself. Schröder
(2001, 245) puts it like this: ‘Im 19. Jahrhundert dehnt sie ihre
Kompetenz auf den Stoff selbst aus’ due to the Kantian idea
that our knowledge is not dependent on the objective reality, but
the other way around: objects are the result of our knowledge.
This opened up the way for an independent legal science that
developed an ‘inner system’. See also Feinman (1989, 663): ‘how
we think about law’ and ‘the law we think about’ are not two
different things: ‘Definition creates reality as much as it orders it.’

The distinction between describing the law and giving a nor-

mative judgment about how the law should read is not always
made in a clear way. Statements about optimal law are often
given by way of an interpretation of an existing statute or judi-
cial decision. In so far as courts engage in this practice, this is
– at least in civil law jurisdictions – understandable from their
fear to create new law: they would rather cover this up. When
legal academics mimic this practice, however, their actions
should be discouraged.
It should be emphasized that the systematizing method
leaves open the option of deciding which materials, exactly,
are to be systematized. Until the nineteenth century, this was
mostly Roman law, whereas today systematization is mostly
based on the products of national legislatures and courts.
This is remarkable, considering that the method of ‘finding’ a
system in the mass of judicial decisions and statutes was origi-
nally directed towards the creation of a universal legal science:
just as a ‘national physics’ could not exist so knowledge of dif-
ferent national laws was only a means to establish a universal
discipline.

At present, we have as many legal systems as countries. It is only

because of their common historical roots that these jurisdictions
resemble each other. See, for example, on the idea of a univer-
sal legal science, Schweber (1999). From the viewpoint of the

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 20 The mind and method of the legal academic

requirements that an academic discipline (including the legal dis-

cipline) should meet, it is problematic to look at national materials
only (and even more so if one looks exclusively at the products of
the legislature and courts): see infra, nos. 21 and 39. A more origi-
nal approach is one that also takes into account private regulation
and rules flowing from European and international lawmak-
ers (cf. infra, no. 25) in describing the applicable law – as it, for
example, takes place in the ‘global administrative law’ movement.

10. An Internal Perspective

The second aspect of the traditional description of law is that

it usually takes place from an internal perspective. The biolo-
gist describing the behaviour of the hedgehog does so in his
own scientific language and not in that of the hedgehog itself,
just like the sociologist studying the medical profession does
not have to be an expert in medical jargon. The literary critic,
also, does not aim to become a writer himself (at least not
in most cases). The legal academic, however, makes use of
exactly the same legal terminology as the object of his study.
And this is not all. Rubin (using a term of Foucault’s) defines
this as the ‘unity of discourse’: legal scholars ‘not only analyse
the work of judges, but they also tend to think of themselves
as judges, and to speak like judges. They address a court on
the court’s own terms, offering alternative rationales for the
decision reached, or arguments why a different decision was
preferable.’

Rubin (1988, 1859ff.). This phenomenon was extensively dis-

cussed in the American literature. Learned Hand (1926, 466)
described jurists and judges as ‘laborers in the same vineyard’.
And what Posner (2002, 1315) stated with regard to American
legal academics well into the 1970s is still accurate for their
European counterparts: ‘They even dressed like lawyers rather
than like professors. They passed easily between the university
and non-academic venues such as the courtroom and the govern-
ment agency.’ For an account of the close relationship between
law-making and learning in Germany: Vogenauer (2006).

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 Legal science: a typology 21

This perspective of the participant is also an inherent part of

the training of law students: much of the legal curriculum is
meant to put students in the position of a judge, legislator,
lawyer or counsel and in fact to make a decision. This perspec-
tive of the legal academic as involved in the legal process itself
has for a long time been seen as invariably positive. Weinrib
even sees the internal perspective as what makes legal scholar-
ship an autonomous discipline: as soon as it adopts an exter-
nal (economic, sociological, historical, etc.) perspective, there
is no longer a legal approach to the problem in question.

This implies that the legal academic has to find law himself. See
Weinrib (1995) and Rubin (1996, 562). It is through this internal
perspective that legal science and practice are closely related:
someone whose aim in life is to indicate how the law reads or
ought to read, lends a ready ear to those who have to apply the
law.

This internal perspective fits in with the general insight that an

adequate description of the research object is generally given
by a researcher who puts himself in the position of the par-
ticipant. This participant observation is well known from the
field of anthropology. However, the question must be asked
whether – in the case of law – this prevailing view does not
focus too much on the insider’s perspective (see infra, no. 25).

11. Description in Legal Science: Alternative Approaches

Can description of law also take place in other ways than

through doctrinal analysis? It is beyond doubt that the answer
must be affirmative: there are many examples of such an
external description of jurisdictions, that is, a description that
takes place in other terms than those of the jurisdiction itself.
This type of description usually makes use of the methods of
other disciplines, including sociology, anthropology and eco-
nomics. Comparative law and legal history do seem to make
use of legal terminology when they describe foreign or past

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 22 The mind and method of the legal academic

jurisdictions, but this is due to the way in which these disci-

plines are usually practised, namely as legal disciplines (that is
to say from an internal perspective) and not as an exponent of
the comparative or historical method. I briefly pay attention
to these other types of description.

This survey can be brief because it is not essential to the main argu-
ment developed in this book. I also acknowledge that sociologists,
economists and historians may not fully recognize their work in
this necessary limited sketch. In no. 40, infra, yet another type of
description is presented: because of increasing Europeanization
of law, there is an increasing need for description not in terms of
rules, but by way of arguments.

12. Sociological Description of Law

Since Eugen Ehrlich published his famous Fundamental

Principles of the Sociology of Law (1913 [1936]), it has been
clear that the law can be described from a sociological per-
spective as well as in terms of doctrine. After Ehrlich, it was
Max Weber who, in Economy and Society (1922 [1946]), dis-
tinguished between a description in legal terms and a more
value-free description from an external perspective. To Weber,
this was a description in rather abstract terms. Thus, one can
describe law in terms of the values it tries to realize (such as the
limitation of state power), in terms of the relationship between
the normative (the aspiration) and the factual (how this aspi-
ration works out in practice) or as a demonstration of class
interests. The description of law as governance, which consid-
ers law as a way to exercise power in a legitimate and coherent
manner is also prominent.

See Weber (1922 [1968]). Llewellyn (1930, 3) described law in

terms of dispute resolution: law is ‘what (. . .) officials do about
disputes’. On law as governance see, instead of many, Hunt &
Wickham (1994, 99ff.). Legal realism also aims at a description
of how law ‘really’ works. Holmes approached this from the per-
spective of ‘decision analysis’: the question is how decisions about

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 Legal science: a typology 23

law are taken in practice. This puts the ‘bad man’ at the centre
of attention, who is only interested in how the judge will decide
his case and bases his (from the moral perspective perhaps rather
unedifying) behaviour on this. See Holmes (1897, 461): ‘The
prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law’. See for an overview of
(American) legal realism: Leiter (1996). In the last decade, new
approaches to legal realism have been proposed in the United
States. This ‘new legal realism’ proposes to make use of more
quantitative research methods and encourages legal academ-
ics to do more fieldwork. See, for example, the special issue of
Wisconsin Law Review (2005, 335ff.) and the website <www.
newlegalrealism.org>.

An important part of the sociology of law deals with the effects

of rules on society. This type of research usually has a strong
normative bias and investigates whether the (deficient) func-
tioning of a rule should have consequences for its acceptance.
In this regard, the study by sociologists is no longer a descrip-
tion of law, but actual empirical scholarship (see infra, no. 16).

13. Economic Description of Law

Law can also be described in terms of economic analysis. In

the discipline of Law and Economics, it is common to distin-
guish between normative and descriptive (positive) analysis.
In the (disputed) normative variant, economic analysis deals
with the question of how the law ought to read (or how sub-
stantive disputes need to be decided) if it aims at maximizing
welfare: legal rules are then to be designed in such a way that
they will promote such welfare. An economic description of
law only aims to describe and explain the existing law on the
basis of economic principles. On this issue, Richard Posner
observes that ‘the common law is best explained as if courts
were trying to maximise economic welfare’. If this is really the
case, it shows that large parts of private law and criminal law
can be understood as pursuing efficiency and have developed
into systems of welfare maximization.

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 24 The mind and method of the legal academic

This approach is based on one of the most influential journal

articles ever published: Coase (1960); also see Posner (1983, 4).
Posner claims that the ‘rhetoric of opinions’ only leads to cover-
ing up the underlying reasons for a legal judgment. Instead, legal
education and research should aim at uncovering the true reasons;
efficiency then comes out as an important factor (Posner 2003,
25). There is thus an economic basis for tort liability, fair trial,
compensation for expropriation and the principle against unjusti-
fied enrichment (Posner 2003, 27). Economic analysis may also
reveal the adverse effects of consumer protection (Posner 2003,
27), which demonstrates how description can easily become a
normative activity (on which infra, no. 34).

14. Historical Description of Law

One would expect legal historians and comparative lawyers

to be experienced in describing the law. This is because they
are supposed to struggle with the question of how past law or
foreign law can be objectively presented because, at first blush,
doing this in terms of present law does not suffice.
And yet, this is exactly the approach that most legal histori-
ans follow. The Dutch legal historian Henk Hoetink makes a
distinction between a purely historical approach and a descrip-
tion on the basis of present-day law. The first approach aims to
reproduce the law as it really was in order to reflect the histori-
cal reality that once existed. This means that the conceptions
and rules of that time are placed in the broader cultural and
economic context of the past. The second approach departs
from present-day law, which it extends backwards in order
to solve modern problems. In this scenario, history is used to
draw lessons that are applicable to improving current law, not
to seek the objective restoration of what once was. It is entirely
plausible then that past law is not presented in an entirely
correct way but this is of minor significance if we consider that
a ‘productive misunderstanding’ can be immensely useful.

See Hoetink (1929 [1986, 27ff.): in the first approach, legal history
is part of cultural history, a study that comes out of ‘disinterested

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 Legal science: a typology 25

interest’. This purely historical study of law is closely associated

with the names of Ranke and Mommsen, but modern examples
of this approach include the works on American legal history
written by Friedman (1973 [2005]) and Horwitz (1977). In prac-
tice, legal historians mainly use the second approach, where they
describe jurisdictions primarily from an internal perspective.
That is to say by using their own classifications, concepts and
rules it makes them, above all, jurists and not historians. We find
a similar debate in comparative legal studies, where a strictly
academic approach would require the description of a foreign
jurisdiction on its own terms. However, as comparison can also
serve other purposes than just accumulating objective knowledge,
other methods have come to the fore (cf. Husa 2009).

It is striking to see the near obliviousness or the general lack

of awareness that many legal historians possess when it comes
to acknowledging the existence of alternative methods avail-
able in the field of history when describing the past. This is a
pity because legal history could profit from these views when
describing the historical reality in law.

Comparative lawyers also struggle with questions that simi-

larly afflict legal historians. See, for example, the overview by
Ankersmit (2001). Historical description also requires the making
of choices, which becomes evident in the debate about the
extent to which there is one European civil law tradition. While
Zimmermann, in The Law of Obligations (1990), emphasizes
the continuity of this tradition, Monateri (2000) is much more
sceptical and sees mostly rifts in history and a discontinuous
development of Roman law to modern law. This is a matter of
perspective: one sees continuity when identifying a rule that one
is liable for selling a defective product but discontinuity if this
product is a slave in Roman times and a MacBook in the present.

15. Comparative Description of Law

An identical question (‘How to describe another law than

one’s own?’) is discussed among comparative lawyers. Again,
one can distinguish between a description in terms of a foreign

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 26 The mind and method of the legal academic

jurisdiction and one in terms of one’s own legal system.

Comparatists, unlike legal historians, quarrel to no end about
what is the best approach.
Describing a jurisdiction in the context of that jurisdic-
tion itself is usually not seen as very problematic since most
comparative work is directed to comparisons of similar legal
systems within the same legal family. In such cases, the foreign
terminology is usually similar to that of one’s own system.
Even if a term has a different meaning elsewhere, it will not
be fundamentally different from the meaning attached to it
in its own jurisdiction so one does not need a truly external
viewpoint in order to understand the foreign jurisdiction.

A well-known exception to this is so-called ‘false friends’ (terms

that look identical, but actually have a wholly different meaning)
(see Tallon (1998)).

Things change quickly when foreign law cannot be captured

in terms of one’s own jurisdiction. Comparative literature
then usually turns to the so-called functional method: which
(societal) function does the legal rule or even the legal system
as a whole have? Different legal rules and legal systems are
then compared by choosing a standard of measurement that is
external to the law.

A famous example of functional description at the micro level is

the article by Konrad Zweigert (1964) about indicia of serious-
ness in contract law, where the question is which rules are used
to distinguish binding from non-binding promises. It is only
from this functional perspective that one is able to relate causa,
consideration, and the intention to create legal relationships. It
is probably true that the more diverse legal systems are, the more
abstract the measure of comparison has to be. Thus, anthropolo-
gist Von Benda-Beckmann (1979) distinguishes all law in terms of
variations on a general category. This variation can be described
in terms of the degree of institutionalization, of mandatoriness,
and of restricting the autonomy of individuals. See also Strijbosch
(1996, 536). The description of law in terms of so-called ‘law jobs’

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 Legal science: a typology 27

is also well known: each society has certain (legal) functions,

such as deciding disputes, regulating behaviour, deciding who
has authority, determining how such authority is to be exercised,
and providing cohesion (this method was famously applied to the
non-state law of the Cheyenne Indians by Llewellyn and Hoebel
(1941)). Also see Hoebel (1967 [2006]).
Describing a foreign legal system in terms of one’s own legal
system is insofar a Dutch academic tradition that it also took
place in the so-called ‘Adat school’ of Cornelis van Vollenhoven
and others. They aimed to codify the ‘living law’ of the peoples of
the Indonesian archipelago in non-Western terminology. Thus,
this people’s own conception of their ‘native law’ (as opposed
to the academic description of it in the terms of the lawyer) was
emphasized. Van Vollenhoven spoke of ‘seeing oriental law in
the oriental way’. See Holleman (1981). There was even a manual
for recording the law in Indonesia, the so-called Adat Guide
(1910), prescribing the method of research and describing the
law. In line with his own method, Van Vollenhoven distinguished
nineteen areas of law (rechtskringen) in the archipelago by way
of ‘neutral’ neologisms, explicitly avoiding, for example, the dis-
tinction between property law and the law of obligations, and by
using terms such as land law (for example, ‘tenancy in return for
loan’ or grondverpanding) and the law of wrongs (thus avoiding
the distinction – unknown to Adat law – between acts that are
criminally punishable and civil law torts).

The question must be raised whether this functional method is

truly the best way to compare jurisdictions. Describing a law
by way of reference to non-legal concepts risks the possibility
that the reader fails to capture the essence of that law (and
what it means to those affected by it).

Nils Jansen draws an important parallel with the study of

(comparative) religion. This discipline suffers from an identical
problem as comparative legal science: how to describe (the con-
ceptions of) a religion in an objective fashion? How, for example,
does one describe a term like ‘holiness’ or compare the diverse
views about ‘God’? The personal opinion of the person describ-
ing the subject cannot be decisive and neither can a functional

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 28 The mind and method of the legal academic

approach: to look at religious commandments or view the resur-

rection of Christ as functional problems seems to miss the heart of
what a religion is about (Jansen 2006, 328). And yet, a compari-
son is possible by describing a phenomenon existing in different
religions as a common phenomenon, and subsequently analysing
the commonalities and differences inherent in it. This means that
comparison takes place by way of a ‘comparative second-order
language’, which is an inter-subjective description that allows one
to decide from the ‘inside out’ what is and is not important. This
approach can also be of service in legal comparison: see infra,
no. 46 and, for further criticism of functionalism, Husa (2003).

3. EMPIRICAL LEGAL SCHOLARSHIP

16. Research on the Effects of Law

A second type of legal science, known as empirical legal science,

is not directed towards a (doctrinal or other) description of
law, but deals with its application and consequences. Empirical
legal science studies the legal actors, institutions, rules and
procedures in order to obtain a better understanding of how
they operate and what effects they have. This field is therefore
not about what the law says, but about what it does. This type
of work is becoming increasingly popular, partly caused by the
view that ‘real’ knowledge must be empirically testable.

For the above definition, see Baldwin & Davis (2003, 881).
Ellickson (2000) demonstrates the extent to which, in the United
States, the number of studies at the intersection of law and other
disciplines has increased in the last twenty years. For the period
1985–2000, Korobkin (2002) counts 27 articles in American law
journals using an empirical approach to the law of contract. This
number has increased substantially since then: there are now also
law journals entirely devoted to an empirical approach, such as the
Journal of Legal Studies, the Law and Society Review, the Journal
of Law and Society and the Journal of Empirical Legal Studies.
Heise (2002) provides a history of empirical legal scholarship.

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 Legal science: a typology 29

Attention to how a statute or judicial decision affects reality

is a little surprising for today’s jurists. The days of a purely
doctrinal approach, in which a judgment about the value of
a rule was only based on the extent to which it fitted into the
doctrinal system – if those times ever existed at all – are now
far behind us. One need not repeat the famous statement that,
‘We are all realists now’ to be aware of this.

This approach has its foundations in the work of Von Jhering,

Ehrlich and Weber (see supra, no. 12) and in American legal
realism. Louis Brandeis was one of the first to explain before the
United States Supreme Court how a statute on the regulation of
the working hours of women worked out in practice (Muller v.
Oregon, 208 U.S. 412 (1908) and Roscoe Pound’s Social Control
Through Law of 1942 subsequently elaborated on this empha-
sis on ‘law in action’. See extensively Stein (2000, 21) on the
Folgenanalyse in Germany.

We must not, however, overestimate the importance of empir-

ical work to the law. Holmes’ famous saying that ‘for the
rational study of the law the black-letter man may be the man
of the present, but the man of the future is the man of statis-
tics and the master of economics’ did not materialize. This is
because the relationship between the normative question of
what the law ought to be (‘What is allowed in law and what
is not?’) and the empirical question of whether something
‘works’ is not completely clear. The premise of empirical
research is that the law is an instrument and that it can there-
fore be tested in an empirical way. This implies a strongly
instrumental view of law that is difficult to reconcile with a
doctrinal approach. The tension between the two models of
academic work becomes apparent when the construction of
a logically coherent system of principles is in the driving seat
and one that investigates empirical reality (in terms of cause
and effect) takes a backseat.

See Holmes (1897, 469). In a doctrinal approach, there is no need

for an empirical analysis. The only test is whether the rule fits in

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 30 The mind and method of the legal academic

with the (coherent) system. This is different as soon as the societal

effect of the law starts playing a role in assessing it. Ulen (2002,
27) mentions yet another reason: the traditionally marginal role
of empirical research in law is also caused by the fact that law does
not have a testable core theory. This is different in many other
disciplines (such as economics with its emphasis on the rational
actor). It should also be mentioned that the ever-increasing role
of regulation by the state leads to a greater need for empirical
research. If law is primarily used as a policy instrument to pursue
certain goals, the empirical testing of the extent to which these
goals are achieved is only one step away. See also infra, no. 35.

The empirical approach was originally strongly directed

towards identifying factors that determine how judicial deci-
sions come about. In contrast to doctrinal analysis, it was no
longer seen to be decisive how the law reads, but a role was
assigned to the judge in understanding why a decision was
taken. Today, legal-empirical work is particularly strong in
the fields of criminal law, labour law, environmental law and
access to the legal profession.

Recently, much attention has been directed towards the consum-

ers of legal services (Baldwin & Davis, 2003, 887) and towards
negotiations. Perhaps the most talked-about exponent of the
empirical approach in the last few years is the American, Steven
Levitt, whose work is characterized by the motto that law and
morals may be about how one would wish the world to work, but
it is more important to know how the world works de facto. How
this can lead to exceptionally stimulating research is shown by a
much-debated article in which Levitt and Donahue look for an
explanation for the reduction of crime in the United States after
1990. Their explanation is that the legalization of abortion by
the United States Supreme Court in Roe v. Wade (410 U.S. 113
(1973)) led to fewer children being born who were unwanted by
their parents. Since unwanted children are more likely to become
criminals because not enough preparation is put in place for their
upbringing, legalization of abortion would have led to less crime
(Levitt & Donahue 2001).
Next to the very well established field of criminology, there

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 Legal science: a typology 31

is an increasing need for empirical testing of the regulation of

private relationships. It has been noted more than once that a
private law counterpart of criminology is largely missing or, as
it was put in a report by the British Nuffield Foundation (2006):
‘There is no “civilology” equivalent to criminology’, hinting at the
lack of comprehensive empirical work in fields such as family law,
commercial law, labour law and contract law. The overview of
types of research by Siems (2008) demonstrates how many kinds
of legal-empirical research are possible and that it does not make
much sense to lump them together. Research into the extent to
which parties are aware of law (Ellickson 1991) makes a world of
difference to research into ways of deciding conflicts (Genn 1999)
and research into the question of whether common law jurisdic-
tions are better for economic development than their civil law
counterparts (Shleifer & Glaeser 2002; Faure & Smits 2011).

It does not come as a surprise that the empirical approach

derives its methods from non-legal disciplines. Taking empiri-
cal research seriously requires using the methods of other
disciplines rather than those of the law to find answers to the
relevant questions. However, one cannot expect the same type
of certainty from empirical legal research as, for example,
natural science can offer: the results are simply less robust –
which does not mean that these are therefore less important.

The usual distinction is the one between qualitative and quan-

titative empirical research methods. The former usually consists
of conducting interviews, carrying out case studies or reading
documents. The results of this type of research cannot always be
generalized, but this does not matter so much because usually the
aim is to understand a legal phenomenon better and not to collect
empirical evidence for the sake of collecting data. The quantita-
tive method can consist of a large-scale collection of data and the
application of statistical analysis to it, as often happens in crimi-
nology and victimology. It is also possible to carry out an experi-
ment, as Hesen (2009, 147ff.) recently did, where she investigated
the cognitive load of contracts by having 120 students answer
questions about almost 400 contracts in the biopharmaceutical
sector.

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 32 The mind and method of the legal academic

Baldwin & Davis (2003, 889ff.) show well that empirical

research in law is often not very thorough when compared to,
for example, political science or psychology: ‘Research skills
are picked up by observing more experienced colleagues, and
there is nothing particularly complex or technical about the
methods employed’. This is not much of a problem as the
results are often plausible and influential. Thus, the famous
work of Macaulay (1963) on the actual use of contract law
by business people is based on a relatively small number of
interviews. Also, see infra, no. 55 for putting the robustness of
empirical data into perspective when used in legal studies.

4. THE THEORETICAL PERSPECTIVE

17. Research about Law

Next to descriptive and empirical legal scholarship, there is

still a third type of legal research that can be distinguished.
This is research about the question of what is law, in what does
the law differ from other sets of rules, why and when is it valid,
and how does it develop. Philosophy of law and legal theory
traditionally deal with these questions, but questions about
the law are often also raised in other sub-disciplines. This
meta-legal perspective is only discussed briefly here.

This type of research is certainly not limited to the elevated ques-

tions that philosophy of law deals with and that are brilliantly
described by Bix (2009). Questions about the optimal design
of private law (Purnhagen 2013), about the need for a uniform
European private law (Smits 2005) and about the influence of the
late Spanish scholastics on Hugo Grotius’ views about mistake
and unjustified enrichment (Feenstra 1974) also belong to this
category.
The term ‘meta-legal’ perspective is often used to describe
all approaches that are not doctrinal, thus also covering fields
such as Law and Psychology, Sociology of Law and Law and
Economics. However, these topics are often more directly related

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 Legal science: a typology 33

to the positive law, that is then looked at from the perspective of

a specific method.

The enormous value of the theoretical perspective is that it

usually does not start from the subdivisions of substantive
fields of law, but tries to acquire insights relevant to various
legal areas. The challenge then is to remain informed about
developments in these specific fields and to make the acquired
general insights accessible again to specialists, which is no
easy task. Thus, the present challenge seems to be to find a
new philosophical foundation for law in times of increasing
internationalization of law. There is a dire need for a new
legitimation of law, which will accommodate other legal
sources than those that fit in with a positivist view, where
the growing Europeanization and privatization of law make
it increasingly difficult to determine what is law by making
use of criteria such as Kelsen’s Grundnorm or Hart’s rule of
recognition.

See supra, nos. 27 and 40. There is an extensive literature on the

consequences of internationalization for conceptions such as the
rule of law, democracy and sovereignty. In the fields of European
private law or European constitutional law, the discussion is
also extensive, but deals mainly with the substance of European
norms and with the influence they have on national law. A more
extensive theory of how Europeanization leads to a whole new
category of ‘law beyond the State’ and how this influences sub-
stantive fields is largely missing. An inventory of the literature is
provided by Michaels & Jansen (2006), Jansen & Michaels (2007);
also see De Burca (2008). For example, the question of the level
at which laws are best regulated, whether it be at the local, the
national, the European, or even at the supranational level was not
addressed until the enormous increase in Europeanization, not to
mention the alternate possibility that regulation ought to be left
in the hands of the private sector. The answer to this question also
determines how the systematization of private law is to take place:
by way of making one European system or as separate national
and European systems that each have their own rationality (on
which Michaels 2011).

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 34 The mind and method of the legal academic

Theoretical work can make use of a variety of methods.

Philosophy of law and legal theory tend to make use of the
same methods and techniques of argumentation as in the
more positive fields of law. The research question often also
invites us to make use of methods (and insights) from other
disciplines.

In particular, theoretical work can profit from the ways other

disciplines approach certain questions. Thus, when asking how
a legal system develops, inspiration can be derived from evolu-
tionary theory, and when asking whether the unification of law
is needed, an economic approach can be useful (see respectively,
Smits 2002b and 2005).

5. WHAT IS NEXT?

18. Continuing the Debate

Three important approaches to doing legal research were dis-

cussed above. Legal academics can describe law, can ask how
law works in society, and can deal with theoretical questions
about the nature and development of law. Each of these activi-
ties is useful and has its own methods. However, there is still
a fourth approach to law: as already indicated, supra (no. 4),
legal academics can also raise the normative question of what
the law ought to be. This is, in my view, at the core of the legal
discipline and therefore deserves to be discussed separately.
The subsequent Chapters II and III are devoted to this type
of research.

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 II. The Homo juridicus: towards a
redefinition of normative legal
science
1. INTRODUCTION

19. Course of the Argument

The introduction to this book showed that there is much work

to be done pertaining to the aims and methods of legal science,
the impact of which has reached a point where legal academics
themselves can no longer distinguish the core of their activ-
ity. This is why, in Chapter I, four questions about the law
were identified to facilitate legal academics in classifying their
research. This should not make us forget, however, what is at
the core of the legal discipline. The main thesis of this book is
that legal science is primarily formed by the question of how
the law ought to read. Before elaborating on this point further,
this chapter will investigate the requirements that an academic
discipline should meet in general (nos. 20–22). Normative
legal science is then identified as the core of the legal discipline
in nos. 23–26, followed by an account of what could be the
theoretical underpinning of this view (nos. 27–29).

2. WHAT MAKES AN ACADEMIC DISCIPLINE?

20. Academic Disciplines

Needless to say, not all academic disciplines are similar.

This is why the various branches of scholarship are usually

35

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 36 The mind and method of the legal academic

distinguished on the basis of their characteristics and methods.

Thus, the formal (or a priori) sciences are usually contrasted
with the empirical sciences. Formal sciences (such as math-
ematics, logic and computer science) study abstract objects
starting from certain existing axioms and rules of inference.
The validity of a theory is then completely dependent on these
axioms: the reality they create is a wholly artificial one. This is
fundamentally different in empirical sciences (such as physics
and biology): here, the validity of a theory can be tested
by way of physical experiment. A third type of discipline is
formed by the humanities, dealing with the diverse products
of the human mind.

See, for example, Salmon (1999) and Leezenberg & De Vries

(2001). Other distinctions within the empirical sciences concern
the experimental (physics), observational (astronomy) and
interpretative (several subfields of psychology) disciplines. The
humanities often do not aim to find the truth or new facts,
but  usually search for an alternative perspective on existing
facts,  not necessarily leading to the elimination of existing
perspectives.
Other distinctions within science are also possible, ranging from
the age-old to very modern ones. Aristotle already distinguished
between theoretical sciences (aiming to obtain ‘pure’ knowl-
edge, such as in philosophy), practical sciences (which is about
the actions of citizens – law, ethics and political science) and
poetical disciplines (pursuing knowledge about making things).
National organizations for scientific research (such as the Dutch
Nederlandse Organisatie voor Wetenschappelijk Onderzoek
and the German Deutsche Forschungsgemeinschaft) often lump
together the various social sciences (including law, economics
and psychology); cf. infra, no. 53). Another distinction is the one
between ‘pure’ science (such as theoretical physics) and applied
disciplines (such as mechanical engineering and medicine).

In this context, there is much debate over the question of how

to categorize the legal discipline within the various branches
of scholarship. In my view, this is completely dependent on
the aim one pursues when studying law: this can make law

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 The Homo juridicus 37

not only part of the humanities, but can also mean it has to be
categorized as an empirical or normative discipline.

The legal discipline belongs to the humanities in so far as it empha-

sizes that the doctrinal system (‘dogmatics’) and the formulations
of norms are products of the human mind. The accompanying
research method is then in many cases the hermeneutical one.
Law is also an empirical discipline in so far as it deals with how
rules work in practice (see supra, no. 16). In an extreme variant
of this, we can only accept as law what ‘works’ (see also infra,
no. 35). One can even defend the proposition that legal norms
undergo a similar development to the laws of nature: it may
be that legal norms cannot be determined by way of induction
and generalization, but that they have to be accepted in society.
Looked at it in this way, norms are only hypotheses that become
valid by their application to the facts (see for example, Engisch
(1977) and infra, no. 52). Finally, law can also be a normative
discipline (see infra, Section 3).

Determining which of the three variants we are dealing with

is irrelevant when answering the question which requirements
the legal discipline should meet in order to qualify as an
academic discipline. The requirements we want an academic
discipline to meet are independent of the classification of these
variants.

21. Requirements of an Academic Discipline

The academic disciplines that were just distinguished, no

matter how diverse they are, have several things in common.
If a discipline is to be seen as an academic one, it must meet
certain requirements. First, all scholarly disciplines aim for
the systematization of knowledge: they are not satisfied with
a loose collection of data, but aim to describe, evaluate and
explain information within an existing framework. Secondly,
this knowledge must have been obtained by a method that
is recognized as valid by the academic community. Thirdly,
all disciplines aim for knowledge that supersedes the local:

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 38 The mind and method of the legal academic

academic work aims for universal knowledge and is therefore

necessarily international.

See for example Ruane (2005, 10ff.). It is not only (natural) science
that aims for the systematization of knowledge; this is true for
any academic discipline. The term ‘scientia’ refers to knowledge;
and knowledge seems impossible without reference to a number
of ordered elements. Hence, the Oxford English Dictionary
describes science as a branch of study that is concerned with ‘a
connected body of demonstrated truths or with observed facts
systematically classified (. . .)’.
The subsequent requirement is that knowledge is either
obtained through a recognized research method or is at least
recognized as part of an academic practice. This methodologi-
cal requirement finds its origins in the fact that the knowledge
obtained has to be reliable and not based only on an intuition
or a feeling: use of an accepted method can thus make the
knowledge more objective and minimize the chance of mistake.
This does not mean that the method is the same for every dis-
cipline. In the natural sciences, the method usually consists of
an empirical observation of reality, even though this may not be
a guarantee of finding ‘objective’ knowledge. The well known
criticism by authors such as Gadamer (1960[1981], Habermas
(1968[1987]) and MacIntyre (1981) is that an academic disci-
pline can never offer an objective truth, but is at best a practice:
a set of forms of argumentation recognized as valid by some
academic community (cf. Rubin 1988, 1841). Whereas a method
offers fixed rules to reach a certain (often replicable) result, a
practice is based on judgments and sometimes even on intuition.
The legal discipline has almost always been seen as such a prac-
tice, which also explains the relatively low importance that is
attached to using clear research methods in academic work. As
Rubin (1988, 1859) put it, law is a ‘practice based on judgment,
not on methodology based upon objectively determined rules’.
Also see infra, no. 54.
Finally, academic disciplines aim at generalization. Despite dif-
ferences between various fields – well known in this respect is the
distinction Rickert makes between generalizing sciences (such as
physics) and individualizing disciplines (such as history) – no field
can limit itself to describing the here and the now: facts always

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 The Homo juridicus 39

have to be placed in a broader context in which national borders

and language are not decisive.

Sometimes a fourth requirement is added to these three: the

results must be replicable. This means that by using the same
research method, a similar result must be reached. However,
this is not an absolute requirement in all disciplines.

Even in the natural sciences, the requirement of replicable results

is no longer as important as it used to be. In fields like quantum
mechanics and chaos theory, results are often unpredictable
anyway and it is generally recognized that even in the ‘hard’
fields, knowledge is the result of a discourse in which rhetorical
strategies play an important role. See, for example, Latour (1987).
Outside natural science, the requirement of replication has never
been that important. In his famous lecture, The Two Cultures of
1959 [1993], C.P. Snow was already arguing that important dif-
ferences exist between disciplines and that one should not try to
transplant the requirements of one discipline into another.

22. Requirements of (Descriptive) Legal Science

There is little doubt that the legal discipline can meet the
three requirements that were discussed above. How these
requirements work through is dependent on the type of legal
science that is at stake: the descriptive, empirical and theo-
retical approaches will all make their own interpretation of
the three universal academic requirements. It seems logical
that the empirical and theoretical approaches cadge from the
disciplines they originate from. But descriptive legal science
can also meet the requirements needed to be considered
academic.
This is beyond doubt, in so far as systematization and
generalization are concerned. Existing law is pre-eminently
described by way of the systematization of (usually) legislation
and case law. This systematization is aimed at distinguishing
the aspects of legislation and case law that have a more general
importance from the less important details.

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 40 The mind and method of the legal academic

This type of systematization is not only a matter of course in

private law, but also in other fields. See supra, no. 7. A methodo-
logical foundation of systematization is offered by for example
Bydlinski (2003) and Wilburg (1950); also see infra, no. 55.
However, the legal discipline differs from other fields in its empha-
sis on the systematization and generalization of local knowledge:
the information that is to be systematized is usually confined to
national borders. This is understandable in so far as one wants to
describe national law. As soon as one’s ambition reaches further,
this restriction is no longer justified (such as deciding about what
is desirable law, as is the case in normative legal scholarship: see
infra, no. 25 and 48.

Legal science can also meet the requirement that knowledge

is obtained through a method that the academic community
recognizes as valid. Rubin rightly describes the legal discipline
as ‘a practice whose discourse consists largely of prescrip-
tions that scholars address to public decision-makers for the
purpose of persuading those decision-makers to adopt speci-
fied courses of action’. This general description of the legal
discipline as a whole does not preclude the possibility that the
descriptive variant has its own methods.

See Rubin (1988, 1881) and infra, no. 54. Description of law
usually takes place by way of commonly accepted methods. In
the doctrinal approach this is the empirical-deductive method as
described earlier (no. 8). In the case of the alternative approaches
described in nos. 12–15, one ideally consults sociology, economics
or history to derive one’s methods.

There are various reasons why the requirement that results

should be replicable is not usually an issue in the legal field.
The most important reason is that, in law, the value judg-
ments of the researcher are often decisive for the result. In
other words, the objectivity of natural science is not available
because of the indeterminate nature of law.

Baldwin & Davis (2003, 891) rightly emphasize that ‘there is little
enthusiasm for re-testing a “finding” which everyone understands

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 The Homo juridicus 41

to be subjective to some degree’. See infra, nos. 50ff for a discus-

sion of what this means for the ‘innovativeness’ of legal science
and the extent to which legal knowledge is accumulated.

3. NORMATIVE LEGAL SCIENCE: IN SEARCH

OF THE HOMO JURIDICUS

23. The Legal Perspective

In Chapter I, various academic approaches to the law were

distinguished. As stated then, the core of legal science is
formed by the normative question of what the law ought to be.
The descriptive, empirical and theoretical approaches to law,
which were previously distinguished, are no doubt prominent
perspectives – and the latter two have rightly received a lot of
attention lately – but this should not lead us away from the
core of the legal discipline and how it differs from other fields.
In my view, the ultimate question of legal science is what the
law ought to be: the legal discipline reflects upon what it is that
individuals, firms, states and other organizations ought to do
or ought to refrain from doing. Whilst the other three ques-
tions one can ask about law make use of a method that is also
used in other disciplines (such as natural science, social science
and philosophy), the search for the answer to this question is
unique to the legal discipline. For example, should disinherit-
ing one’s children be permitted? Should a death penalty be
imposed for criminal offences? Under what circumstances
is it justified to go to war? Should constitutional review be
allowed? Is it legitimate to discriminate in the private sphere?
May shipwrecked sailors eat their weakest companion if they,
themselves, are likely, otherwise, to die of starvation? To
answer these and similar questions is the pre-eminently legal
approach.

Because of the focus on this question, legal science is not depend-

ent on the world of facts, or as Collier (1991, 271) rightly claims:

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 42 The mind and method of the legal academic

‘The true realm and metier of legal scholarship (. . .) is the world
of ideas’. It is not description (as in the natural and social sci-
ences), interpretation (as in literature studies) or explanations of
human behaviour (as in economics), but the normative question
about what ought to be in law. Rubin (1988, 1847) speaks of the
‘prescriptive voice’ and the subtitle of the book by Michael Sandel
(2009) on justice (What’s the Right Thing to Do?) is also telling; cf.
also Von Wright (1971). It is worth repeating in order to avoid
misunderstanding – description, interpretation and explanation
are most certainly part of legal science, but in my view they are
not part of its normative core.

It is noticeable that this core of the legal discipline is only

rarely made explicit. In every academic discipline, there are
one or two core questions that every student can easily name.
In physics, it is how to understand the physical reality, and in
biology it is how living organisms function, grow and develop.
Economists are also permanently aware of the fact that there is
such a thing as the ‘economic way of looking at life’ (as Nobel
Prize winner Gary Becker wrote) and of both the potential and
the limits of this perspective. Lawyers usually lack such a clear
vision of their field. This makes it necessary to re-evaluate
normative legal science. While economists primarily study the
behaviour of the Homo economicus (trying to explain human
conduct from the economic perspective), lawyers try to answer
a preceding question: what does it mean that a human being
is a Homo juridicus and what is it, therefore, that he ought to
do? This is as little related to what humans do in fact as it is in
economics.

See Becker (1992): economists study the behaviour of Homo eco-

nomicus, thus presuming that people and organizations behave
rationally. Also see Heyne (2002, 4). In law, the premise is
that actors ought to behave in the way required by law. Even
Jeremy Bentham (1789 [1970]), who clearly distinguishes between
descriptive and normative legal science, refrains from elaborating
on what normative activity exactly comes down to being. The
term ‘Homo juridicus’ was used before, but in a different context,

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 The Homo juridicus 43

by Supiot (2005). Hage (2011) explores whether a normative legal

science is even possible.

24. Away from the Normative Haze

Perhaps the lack of focus on what is the core question of

legal research can be explained by the phenomenon that, in
traditional legal research, the description of existing law and
the normative (and sometimes also the empirical) dimension
are usually not clearly distinguished from each other. Often,
academic work in law is geared to describing a piece of legisla-
tion or a judicial decision, followed by a discussion of whether
the legislature or the court ruled correctly or incorrectly. The
normative element is often camouflaged by interpreting the
statute or decision in a certain way. This is a legitimate way of
working in legal practice: it gives the impression that the law
is subject to gradual and continuous development. However,
this does not mean that both activities should not be separated
analytically: from an academic perspective, a legal judgment
by way of a ‘reasonable’ interpretation does not suffice. Any
normative choice should not stay in the haze, but should be
properly elucidated.

The type of questions practitioners are usually interested in is

what is the positive law (as it exists here and today) as apparent
from – usually – national legislation and case law. It may be that
this positive law is not completely clear, leading to the question
of how ‘the law’ should read. This question is then answered on
the basis of the existing legal system, often by way of interpreta-
tion of existing (national) sources. See also Fletcher (1981, 987).
There is nothing wrong with judges and practitioners answering
a question in this way, but if academics do so, they make use of
the internal approach towards law that is now under so much
pressure. Rubin (1988, 1881) rightly observes: ‘the process of
justification is often better served by leaving the awkward unsaid
and the incongruent unexplained, by generating a sort of nor-
mative haze in which implications drift about without coherent
moorings’.

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 44 The mind and method of the legal academic

25. The Need for an External Normative Perspective

It may not seem very revolutionary to emphasize that the

law is about the ‘ought’ and therefore deals with normative
questions. However, it was noted above (no. 10) that legal aca-
demics often adopt an internal perspective: they use the same
language and conceptions as their object of study and often
have close ties with legal practice. We can now better under-
stand why this is the case. The question of what the law ought
to be is a question legal practice also deals with. It is because
of the prescriptive nature of the legal discipline that academ-
ics make recommendations to those who decide what the law
is, including to legislatures, courts and administrations using
the same terms that the authorities use when formulating their
commands.
This does not mean that this internal perspective is the only
one that can be adopted in a normative approach to law. On
the contrary, as soon as a distinction is made between the posi-
tive law (the whole body of authoritative statements about law
at a certain place and time) and how the law ought to read, the
internal perspective must be abandoned. The challenge is to
develop such an external normative perspective. Legal science
today is usually directed towards either the positive law or
towards the non-normative (as in the empirical approach), so
the blind spot seems to be the question of what ought to be.

This approach distances itself from the view that the ‘ought’ is
primarily decided by the competent authorities (in particular, the
national legislatures and courts) or by what works empirically.
The question is not what the legislature or court says, whether
punishment achieves its goal, or whether awarding damages
keeps a party from wrong behaviour in the future. These are no
doubt relevant questions but how they are answered cannot be
decisive for how the law should read. Also, see infra, no. 35.

There is every reason to develop this external normative per-

spective further. One of the reasons for this, as mentioned
before (supra, no. 2), is that the critical approach to traditional

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 The Homo juridicus 45

legal scholarship threatens to create a situation where argu-

ably only empirical or theoretical work can meet the highest
standards of quality. This calls for a reorientation of the
normative approach so as to satisfy the requirements of an
academic discipline better.

This is because the criticism of the traditional (normative) way of

doing legal research is partly justified: in so far as it is only ori-
ented towards the products of the national legislature and courts,
it does not meet the requirement for generalization (cf. supra,
no. 22). This does not mean, however, that the entire normative
approach should be banned for this reason – as Richard Posner
(1990, 69) suggests: ‘What is missing from law are penetrating
and rigorous theories, counterintuitive hypotheses that are fal-
sifiable but not falsified (. . .), precise instrumentation, an exact
vocabulary, a clear separation of positive and normative inquiry,
quantification of data, credible controlled experiments, rigorous
statistical inference, useful technological byproducts, dramatic
interventions with measurable consequences, and above all and
subsuming most of the previous points, objectively testable – and
continually retested – hypotheses’.

Another reason why an external normative perspective is

required lies in the increasing Europeanization of law. Today’s
legal norms are no longer produced by national legislatures
and courts only, but also flow from other sources. This should
lead to a rethinking of the traditional relationship between
the law and the state: the idea that law is primarily produced
by democratically legitimized national institutions must be
traded in for a view that better reflects today’s reality. This
means that legal science must look for an approach that deter-
mines what the law ought to be without making itself depend-
ent on the authority of the official institutions, or of what
empirically ‘works’.

In the last 200 years, the standard view of law has been that law
is ‘made’ by the democratic national institutions. European law is
often only seen as a phenomenon that stands next to national law

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 46 The mind and method of the legal academic

and most efforts are directed towards underpinning non-national

law with conceptions of legitimacy that are derived from the state.
In my opinion, this view no longer does justice to the complex
reality of the law in a globalizing world. In the last few decades
alone, European and international law-givers have not only pro-
duced a large numbers of norms, but private regulation also has
become ubiquitous. All these different rules strongly influence the
behaviour of individuals and organizations without being based
in a national state.
There are countless examples of this ‘global norm-production’
(Teubner 1997, 157). Apart from organizations such as the IMF
and the World Bank, the activities of the WTO in particular
can have an important impact on the conduct of private parties,
more specifically on the issues of free trade, taxes, intellectual
property and protection of health. On the other hand, various
types of voluntary law, such as norms adopted by corporate
networks (the most important example being codes of conduct
for corporate social or environmental responsibility), technical
standards of standardization organizations (such as the ‘codex
alimentarius’) and other types of self-regulation also influence the
conduct of private parties. Of more recent origin are model rules
such as the Principles of European Contract Law (PECL) and the
Draft Common Frame of Reference for European Private Law
(DCFR), on which infra, no. 41. They are primarily supposed to
be a source of inspiration for (national and European) legislatures
and courts.
Many of these norms, derived from ‘sites of governance beyond
the nation-state’ (De Burca 2008, 104), would not be recognized
as binding to a traditional conception of the law because they do
not meet the formal criterion of being enacted by the relevant
authorities and backed by coercive power. But they often do set
the norms for specific groups of people and are therefore impor-
tant in predicting their behaviour: in this sense, they are often
more important as a source of private law than rules that are
formally binding.
The conclusion to be drawn from this section is that, as the
legitimacy of law was in the seventeenth and eighteenth century
found in the laws of nature, and in the nineteenth and twentieth
century it was founded on a democratic process of decision-
making within national states, it is now time to find a new source

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 The Homo juridicus 47

of legitimacy for the twenty-first century (cf. supra, no. 17). See
also Smits (2009a) and, for excellent overviews of the relationship
between private law and the state, Michaels & Jansen (2006) and
Jansen & Michaels (2007). As indicated, this book will primarily
focus on one consequence of this development – how this new
source of legitimacy will affect legal research. However, Section 4
of this chapter (nos. 27–28) attempts to find a theoretical under-
pinning of law that is not dependent for its validity on the official
institutions.

26. Other Normative Disciplines

It should be pointed out that the legal discipline does not

have the exclusive right of asking normative questions. Ethics
(the discipline of formulating guidelines for the ‘good life’) is
another field in which questions about the ‘ought’ are asked.
Ethics, however, is not concerned with legal norms, but with
norms of a moral nature (in which the sanction is not imposed
by the state but by one’s own conscience). These moral norms
are usually formulated as commands of a general nature:
‘Do not lie’, ‘Do good’, ‘Keep your promise’, but – as is also
the case in law – what these principles are worth can only
be decided in an actual situation. Ethics also distinguishes
between normative ethics (‘What is the morally right thing
to do?’) and meta-ethics (in which this normative debate is
analysed and the question can be asked, ‘What are the origins
of ethics?’). The least binding norms are social conventions:
one does not text in the company of others, only runners are
allowed to spit in public, and so on.

Cf. Tamanaha (2006, 63): as is also the case in law, it often only
becomes clear how to apply moral norms in an actual situa-
tion.  See also, infra, no. 33. Comparisons of law and ethics are
just as rare as studies that investigate a problem from both a
legal and an ethical perspective. The lawyer interested in a playful
introduction to how ethics deals with dilemmas is referred to the
Isabel Dalhousie series of the Scots author and jurist Alexander
McCall Smith. Although some may doubt whether norms that are

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 48 The mind and method of the legal academic

not enforced by the state are followed, these norms can be legally
relevant as ‘social norms’. See Posner (2000).
Law and ethics are not the only normative disciplines.
Economics is also regarded as such, in so far as it aims to say some-
thing about how welfare in society is best distributed and about
what to do in specific situations. In the last decades, however, this
approach (particularly by Rosenberg (1992)) has had to give way
to a more empirical perspective from which economic phenomena
are only explained (usually by way of mathematical models). See
Backhouse (1997, 108) and infra, no. 57. The normative version of
economics has this in common with legal science: there is no one
right answer but one can always debate what ought to be. This
leads Dow (2002, 3) to ask: ‘Is disagreement the sign of an imma-
ture science; given time will we all converge on the same answers?
Or is there something particular about economics which makes
this impossible?’ As will become clear in Chapter III, the latter is
the only right answer for the legal discipline.

4. LAW AS SPONTANEOUS ORDER

27. Theoretical Background

An approach focusing on what the law ought to be without

making itself dependent either on the authoritative institu-
tions (in particular national legislatures and courts), or on
what works empirically requires more explanation than has
been offered up to this point. This explanation, which pays
attention to the method of establishing what the law ought to
be is offered in Chapter III. In the remainder of this section, I
will consider the theoretical framework in which the develop-
ment of private law is seen as an evolutionary process that has
led to a largely spontaneous order (as opposed to a legal order
created by the official authorities).

The idea that law can be seen as the product of an evolution-

ary process is not new in itself: Von Savigny (1831) and Maine
(1861) are the best-known proponents of this idea. Remarkably

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 The Homo juridicus 49

enough, however, this view has disappeared in the last century

and has been generally replaced by legal theories that see law as
a creation of competent authorities (in brief – legal positivism)
or as part of some transcendental nature or culture (in brief –
natural law). Particularly in the field of private law, the validity
of a rule is often made dependent on the choice of a legislature
or court. To look at law as a set of rules that has spontaneously
grown under the influence of both external and internal factors
largely disappeared as a valid perspective. This is a pity because
evolutionary insights sometimes match the law surprisingly well.
Furthermore, applying these insights can lead to a restoration
of the ties between law and other academic disciplines. See, with
many details, Smits (2002b) and Zumbansen & Calliess (2011).
Daniel Dennett (1995, 21) was right to identify Darwin’s evolu-
tionary theory as ‘the single best idea anyone has ever had’ and
Wilson (1998) even claims that evolutionary theory offers the
only explanation for structural change, regardless of the discipline
involved (Wilson 1998).
It should be emphasized that an evolutionary explanation is
not the only possible way to fill the gap between focusing on the
positive law and a non-normative approach. Alternative views are
possible, provided they leave space for other sources of law than
those that fit in with a positivist approach. To think in terms of
Kelsen’s ‘Grundnorm’ or Hart’s ‘Rule of Recognition’ does not
meet this requirement: the rise of European norms and of private
regulation makes it increasingly difficult to use these criteria to
decide upon what is law and what is not. See also Hesselink (2009,
42) and Calliess & Zumbansen (2010).

Despite the many variations in evolutionary thinking, the core

of the theory of evolution as developed by Charles Darwin
in On the Origin of Species (1859) is clear enough. It is that
change in organisms takes place through natural selection.
The individual members of a species organize their lives so as
to produce the most adaptive offspring and in doing so, they
necessarily adapt themselves to changing circumstances. The
species best able to adapt itself will eventually survive and
species failing to adapt will become extinct.
The idea that development is the result of a process of

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 50 The mind and method of the legal academic

natural (spontaneous) selection has been applied to many

other disciplines outside biology, including the history of
science (Popper), political theory (Hayek), ethics (socio-
biology), economics and psychology. These last two fields
have developed real sub-disciplines of evolutionary economics
and psychology with their own extensive literature and profes-
sorial chairs. In all of these fields, the thought of an unalter-
able human nature or a conscious design is abandoned in
favour of the idea of natural selection. Thus, the spontaneous
development of social and political systems of morality and
economics is studied.

In classic Darwinism, this ‘struggle for life’ can only occur if

certain requirements are met. First, there must be variation in
species (otherwise some species could not survive better than
others). Secondly, the variation must concern variation in fitness
(understood as the ability to survive and reproduce, some species
being more able to adapt themselves to changing circumstances
than others). Thirdly, the characteristics constituting the fitness
of the species must be inherited, meaning that they must be able
to be transferred from one generation to the next.

The law can also be seen as the product of a process of natural

selection.

This means that the three Darwinian requirements for natural

selection need to be applied to the law. The variation in species
then consists of the existence of diverse national (and sometimes
European) legal rules to solve identical problems. These rules
mainly evolved in national (socio-economic and cultural) envi-
ronments. They relate to essential differences between jurisdic-
tions that reflect differing views of society (such as in levels of
solidarity, of duties to help others, levels of social security, and
so on).
Secondly, these rules are also likely to vary in fitness. Many
of the present day rules in the various European countries are
the result of a long evolution during which they were adapted to
the environment they had to operate in. According to evolution-
ary theory, other rules that once existed in these countries must

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 The Homo juridicus 51

have been eliminated in this process of natural selection and any

change in the environment in the future would – again – lead to
the adaptation of present rules. Some rules may become extinct
while others become more dominant. Legal history has telling
examples of this process. Thus, the rule on laesio enormis and the
numerus clausus of contracts in Roman law had to go because
they were no longer fit for the economic environment after the
Middle Ages. Rules on animal trials were abolished because of
new societal insights and the rule that only men could vote for
Parliament had to be replaced because of a changing societal and
political environment.
The third requirement for natural selection – that the charac-
teristics constituent of the fitness of the species must be inherited
– is more problematic in the context of law. This is due to the
simple fact that descendants taking over the genes of their pred-
ecessors do not exist. Rules do not procreate in the literal sense of
the word. But one can think of an analogy with genes. In evolu-
tionary economics, it was suggested that accepted routines played
the same role in firms as genes in organisms: routines provide the
firm with a stable identity that endures over time and – just like
genes – programme its behaviour. The same analogy can be used
in law. Rules are not just rules: they are learnt by students and
applied in practice. Normally, agents (in our case, the legal actors)
will not deviate from these rules because of their deference to legal
certainty and equality. In this sense, the practice of application is
being transferred from one generation to another. And just like
genes in biological organisms, these rules may gradually change
under the influence of a changing environment (society).
The possibility of applying these general requirements for
evolution to the law allows us to see legal change as a process
dependent on both nature (the inherent characteristics) and
nurture (the environment) in the law. See on all this Smits (2002b).

28. Some Consequences

Several insights follow from this view of law as a spontaneously

growing order, in which the various surviving jurisdictions are
to be seen as the product of natural selection.
In the first place, law is no longer seen as the product of

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 52 The mind and method of the legal academic

conscious design, but as the result of a long process of trial and

error. This makes the law less suited for conscious decision-
making than some would assume. Many rules have acquired a
place in the legal system because they have survived the test of
time. As David Friedman puts it: ‘A system of legal rules is not
entirely, perhaps not chiefly, the product of deliberate human
design; to a considerable extent it represents the unplanned
outcome of a large number of separate decisions, by legislators
(. . .) or judges (. . .). It is therefore possible that such a system
may have no objective for us to find.’

Friedman (2000, 4). This is of immediate relevance to the debate

about European private law: cf. Von Bar & Clive (2009a). The
Study Group on Social Justice in European Private Law (2004)
made an ardent plea for a debate about the desired level of social
justice in the European Union before provisions to be included
in a European instrument of private law were drafted. The group
claimed that because of the one-sided focus that the European
Union has on the promotion of the internal market, a ‘European’
view of justice in contract law would be lacking, unlike the case
in national law. This is why a ‘social justice agenda’ should be
developed: ‘At the heart of the social justice agenda beats the
concern about the distributive effects of the market order. The
rules of contract law shape the distribution of wealth and power
in modern societies. (. . .) A modern statement of the principles
of the private law of contract needs to recognise its increasingly
pivotal role in establishing distributive fairness in society’ (Study
Group 2004, 665). This view connects to Kronman (1980).
In my opinion, this overly emphasizes a vision of Europe as a
makeable society. The best rules for Europe in my view are not
determined by some omnipotent legislature that can change the
existing distribution of power and wealth – if this is what one
wants to do. Of course the legislature sometimes has to intervene
to look after the interests of the weak but this does not mean that
this should disrupt the entire relationship between freedom of
contract and protection. To me, the law is not primarily the result
of conscious choice but rather of spontaneous development. I
referred to Hayek (1973–1979 and 1988) in previous work. See,
for criticism, Hesselink (2010).

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 The Homo juridicus 53

As will be shown below (no. 35), this means that it would be

contrary to the nature of private law to consider it as completely
subordinate to some political goal: such a view would mean that
if the goal were not achieved, private law would have failed. In
my view, it is not the state that can decide ex ante which pur-
poses private law should serve; at best, the state can correct the
result ex post (Weinrib 1995, 212). Moreover, a redistribution
of wealth through contract law would not work: its most likely
effect would be that a party would no longer enter into a contract
with a ‘weaker’ party because it would then run the risk that the
contract would not be valid. Fried (1981, 106) framed this point
in the following manner: ‘Redistribution is not a burden to be
borne in a random, ad hoc way by those who happen to cross
paths with persons poorer than themselves. Such a conception,
heart-warmingly spontaneous though it may be, would in the end
undermine our ability to plan and to live our lives as we choose.’

A second consequence of viewing private law from an evolu-

tionary perspective is that it is less subordinate to a process of
political and democratic decision-making than is sometimes
asserted.

The work on the Draft Common Frame of Reference (DCFR)

for European Private Law (Von Bar & Clive 2009a) has brought
this matter to the foreground. For many authors, the creation of
a European private law is primarily a political process: the right
balance between the market and social justice (or autonomy
and protection) should be established in a democratic way and
should not be left to academics only. To consult practitioners and
stakeholders in drafting the DCFR is not enough: the European
Parliament and national legislatures should also be involved in
order to prevent the DCFR from being Professorenrecht. Van
Zelst (2008, 244–245) formulates this as follows: ‘First of all,
the scholars that are involved in the drafting of the DCFR lack
democratic legitimacy. The group represents neither all of the
populations of the member states, nor their political convictions.
Secondly, it is questionable whether professors should be vested
with the translation of social-political reality into legislation. In a
democratic society, this would seem to principally be the task of
the (democratically legitimised) legislature (. . .).’

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 54 The mind and method of the legal academic

This view, clearly inspired by the claim of the Critical Legal

Studies movement that all law is politics (Kennedy 1976), cannot
be accepted. In my view, private law is not just another policy
area with which instrumental goals are achieved. It only has to be
submitted to democratic decision-making if it is seen as an instru-
ment to achieve a political goal (cf. Tamanaha 2006). This is in
conformity with our understanding of private law: it is usually
seen as independent of the state and as having its own ‘rationality’
(Weinrib 1995). Private law developed gradually throughout the
ages and reflects the norms desired by the community where these
rules evolved. This does not mean that private law is ‘neutral’ or
would not be full of choices made by citizens, legislatures and
courts, but it does mean that democratic decision-making is less
important than in many other fields. See, with many details, Smits
(2009a) and Jansen (2010) for an historical account of how so-
called ‘non-legislative codifications’ (including the Corpus Iuris
Civilis) have often derived their legitimacy from the fact that they
were simply applied in practice.

The view that private law can be seen as a spontaneous (self-

developing) order has still a third consequence: it also means
that this order provides us with knowledge about what our
view of the law ought to be. In the prevailing (positivist) view
of the law, legal rules can be changed at any moment depend-
ing on what the competent legislature decides to do. However,
this view is less suited to a private law that primarily aims to
facilitate parties for whom the mere fact that some rule exists is
more important than the actual contents of this rule.

In a Darwinian view of law, society is not regulated by norms

that are imposed from the outside but, instead, all law is the
provisional end result of an everlasting development. It is there-
fore an historically grown (and still growing) organism. Holmes
(1881 [2004]) also saw law as an historically developed collective
experience. Cf. MacIntyre (1981, 121ff.) and Jansen (2005, 759).

The final consequence of considering law as an evolutionary

system is that it facilitates the explanation of how law is depend-
ent on its internal structure, shaped by past transformations

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 The Homo juridicus 55

that are now irreversible. This nature of the organism is now

often considered to be a constraint on change. The path law
has taken in the past thus affects its future development. The
problem with laws based on this ‘path dependent’ view is
that the result from this evolutionary process often does not
produce the best possible solution. In economics, the result
may not be the most efficient organizations and in law it may
not be the ‘best’ rules. Thus, alternative categorizations of the
sources of obligations are certainly possible, but the persist-
ent use of the distinctions made by Gaius and his successors
throughout the ages have set the agenda.

The question whether an old rule will make way for a new one is
dependent on the extent to which the legal actors are prepared to
deviate from existing practices – that is governed by maximizing
principles such as legal certainty, equality and efficiency. If the
costs of this change are too high compared to what the changed
environment requires, it is not likely that any change will occur.
Put differently, the external pressure for a change of law needs
to be so high that it exceeds the costs of change. However, under
such circumstances, the best solution will not always evolve.
Francis Bacon once wrote in The New Organon (1620 [1960, 89]):
‘In matters of state a change even for the better is distrusted,
because it unsettles what is established; these things resting on
authority, consent, fame and opinion, not on demonstration.’
See, on Gaius and the use of his summa divisio throughout
history, Watson (1994). The distinction between obligations
arising from contract, delict, or in another manner (and subse-
quent categorizations based on this) still determines our mode
of thinking. Attempts to trade this in for a system that does
more justice to reality (such as P.S. Atiyah’s proposal to rewrite
the law of obligations in terms of benefit and reliance) have had
little success. It is inherent in law that it will only slowly move
away from well established conceptions, or as Gordon (2007,
366) states: ‘Following existing practices may be more likely to
gain the necessary approval.’ Gordon (2007, 372) refers to Stair’s
Institutions of the Law of Scotland (I.1.15): ‘The nations are more
happy, whose laws have entered by long custom, wrung out
from their debates upon particular cases (. . .). But in statutes the

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 56 The mind and method of the legal academic

lawgiver must at once balance the conveniences and inconven-

iences, wherein he may and often doth fall short.’ Vranken (2006,
16) is critical of this tethering to the past, stating that in essence
it is forcing legal actors only to jump ‘with feet of clay’. This is,
of course, no hindrance to legal academics in being as creative as
possible (cf. infra, no. 50).

The extent to which these consequences will in fact occur

depends on the field in question. They will be more apparent in
private law than in administrative law or tax law. New fields of
law often emerge to realize certain policy goals, meaning that a
sufficiently developed normative framework does not exist. It
makes more sense then to test the rule on the extent to which
it achieves this goal than on how it fits in with the system. In
other words, if the legal system is more advanced (has its own
‘rationality’), it can fulfil the role of an objective and autono-
mous whole more adequately. This is presumably also why the
discipline of private law is often seen as the field best suited to
learn ‘how to think like a lawyer.’

As will become apparent in Chapter III, law often needs to rec-

oncile contradictory ‘goals’. While this goal is clear in medicine
(to ensure the health of people), the aim to be achieved in law is
much less clear and this means that the arguments are inevitably
normative: one can always dispute what one should do or refrain
from doing in law. The normative authority that remains is then
how a legal rule or decision fits into ‘the system’: the conflicting
interests (for example, deterrence and protection) have already
been weighed. Cf. Weinrib (1995) and Friedman (2000, 4).
The more law is treated as an instrument to achieve a certain
goal, the less useful it is to regard it as the product of a spontane-
ous order. It is well known that Von Jhering was one of the first to
see the law’s aim – contrary to the Historical School – as achiev-
ing a goal (Law as a Means to an End, (1877)). Since that time, law
has no longer been seen as an autonomous and coherent system
that can reflect immutable principles. The non-instrumental view
of law in the eighteenth and nineteenth century changed into a
more instrumental view in the twentieth century. The present
emphasis on an economic and empirical analysis of law – and the

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 The Homo juridicus 57

threat that a normative approach is no longer seen as useful – is

the culmination of this. See, with many details, Tamanaha (2006).

29. What is Next? What is Legally Required?

In this chapter, the question of how the law ought to read

has been elevated to the core question of legal scholarship.
The next step is to ask how this is to be ascertained. In other
words, which method should be used to determine what one is
legally obliged to do if one cannot have recourse to the author-
ity of democratically legitimated institutions? This question is
addressed in the next chapter.

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 III. Methodology of normative
legal science
1. LAW AS THE DISCIPLINE OF CONFLICTING
ARGUMENTS

30. Introduction

How does one determine what one is legally obliged to do? It is

clear that, in the view of legal scholarship that has been defended
above, this question cannot be answered by simply relying on
the authority of legislatures and the courts. What then, are the
factors relevant to answering this question? This chapter argues
that the core of the normative approach is that there is not one
answer to what legally ought to be. If the law provides rules for
a society and the views on how to regulate this society differ –
which is necessarily the case – there must also be different views
of what ought to be. The academic-legal method must therefore
reflect this important insight. It means that legal science is not
about physical reality but about the world of ideas. It is a disci-
pline in which arguments for and against various possible solu-
tions to legal problems are identified and thought through. This
makes the legal discipline pre-eminently argumentative.
See, apart from Collier (1991) (mentioned supra, no. 23) and
Singer (2009), what Rubin (1988, 1893) says about the activity of
legal academics: ‘The conflict of norms is the essence of norma-
tively-based scholarship (. . .). The entire point of standard legal
scholarship is to explore and contrast the pragmatic implications
of conflicting normative positions.’

This approach to law has the distinct advantage that the legal
discipline is more closely connected to other academic fields

58

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 Methodology of normative legal science 59

in which so-called self-evident knowledge must always be

disputed anew. Even if there is consensus about the appropri-
ateness of a legal rule, it must be continuously debated by ana-
lysing the arguments for and against it. Law as an academic
discipline would have perished long ago if a general consensus
on how the law should read ended the debate.

It seems appropriate to cite the English essayist, Matthew Arnold

(see Collier 1991, 152): ‘That is what I call living by ideas: when
one side of a question has long had your earnest support, when all
your feelings are engaged, when you hear all round you no lan-
guage but one, when your party talks this language like a steam-
engine and can imagine no other, – still to be able to think, still to
be irresistibly carried, if so it be, by the current of thought to the
opposite side of the question (. . .).’

The mere fact that one can dispute the desirability of constitu-
tional review or positive discrimination, or even the admissibility
of the death penalty, does not make the law less of an academic
discipline. This is because the task of legal science does not
consist of finding ‘the’ right rule or outcome to a case, but instead
consists of identifying the relevant arguments for and against
such rules and outcomes. As the main activity of the practicing
lawyer may be to exclude all uncertainty, the mission of the legal
academic is to question all seemingly certain outcomes.

Long ago, Hugo Grotius emphasized in De Jure Belli ac Pacis (II,

23, 1) that doubt about how the law ought to read is at the core of
the legal discipline: ‘between what we ought and what we ought
not to do, there is a medium but it approaches sometimes nearer
to one and sometimes to the other extreme’. And in his In Praise
of Folly of 1511, Erasmus famously qualified law as the most
learned of all disciplines because with each different topic it will
‘heap glosses upon glosses, and opinions on the neck of opinions’.

31. Structure of this Chapter

This chapter elaborates on the idea of legal science being the

discipline of conflicting arguments. The remainder of this

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 60 The mind and method of the legal academic

section (nos. 32–37) will address why, in law, discussion about

the desired outcome is always possible and why non-legal
methods, in particular, that attempt to dismiss uncertainty
are doomed. Consensus about the normative is often difficult
to reach and therefore should not be endlessly pursued. The
second section of this chapter (nos. 38–46) will be devoted
to the various views on the role of legal science, and the
promotion of one view that should preferably be adopted.

32. Searching for the Stone of Wisdom

Legal science’s persistent inclination is to exclude uncertainty

over what is the right rule or what is the right outcome of a
case. Given this inclination, legal academics often follow the
rhetorical strategy of the practising lawyer who has every
interest in making it appear as if his decision is the only right
one, and thus to bar all normative debate about whether this
is really the case. This causes legal science often to be directed
to finding only one possible answer to the question about what
is the right course of action. However, it is justifiable to ques-
tion this perception that there is only one possible view about
what ought to be. This will be investigated on the basis of the
methods that lawyers tend to use to base their decisions on:
the doctrinal (no. 33); the economic (no. 34); and the empirical
(no. 35). Attention is also paid to fundamental rights as these
are frequently seen as anchors providing certainty about the
right outcome (no. 36).

For what follows I was inspired by, and derive arguments from,
the work of Joseph William Singer (2009) and Edward L. Rubin
(1988). The law is usually expected to be able to decide disputes
in an objective and rational way. And yet – as Singer (2009, 903)
clearly points out – the question of ‘why’ a certain rule has been
accepted or an outcome has been reached is often not answered in
a satisfactory manner. Why is it that one is allowed to use prop-
erty in the way one wishes and why is it that parties are bound to
their contract? Lawyers not satisfied with a mere reference to the
authority of legislature or court, and who are aware that their

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 Methodology of normative legal science 61

personal opinion is not enough, tend to find refuge in approaches

such as the economic analysis of law. However, lawyers should be
able to reason why these two (and other) principles are valid on
legal grounds: this is where the gap observed above arises between
positive law and a non-legal approach (see supra, no. 25).

33. What Ought to Be? The Doctrinal Approach

Is it possible to say what, legally, ought to be only by consult-

ing legal doctrines? Students usually learn the law by studying
doctrine as laid down in textbooks, whilst practitioners use
these same textbooks to establish how legislatures, courts and
academic authors judge the questions that they have to deal
with on a daily basis. However, it needs little explanation to
show that the doctrinal system itself will never lead to one given
outcome in a dispute of substance. A jurist’s real activity con-
sists of making a choice from among the often contradictory
views of what legally ought to be. The doctrinal system fulfils an
important role in this regard because it offers insight into exist-
ing rules and previously decided cases. The doctrinal system,
however, will never provide certainty about how to decide.
This meaning of legal doctrine is well captured by the Dutch law
professor, Herman Schoordijk (1972, 15), who claims that the
system forces the legal actor to ‘bring his value judgments, that
can never be based completely on the existing legal system, into
harmony with judgments previously given in practice or theory.’
It is a well-known fact that a decision in a new case can never
follow from a rule or a previously decided case because the latter
can never determine its own field of application (the cases to which
it will be applied in the future). This makes it often unclear which
rule is to be applied, or whether there is a previously formulated
rule at all. And even if there is no doubt about which rule should
be applicable, it will almost always leave space for more than one
interpretation. See also Singer (2009, 908), who shows that even
if normative consensus can be reached about a certain principle,
this will be at such an abstract level that it does not create clarity
on how to decide a dispute. If the rule on the other hand does offer
sufficient guidance, its contents will necessarily be disputed.

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 62 The mind and method of the legal academic

Hence, the core of legal activity does not lie in the drafting or
application of norms, but in giving a judgment in a normative
dispute and therefore in a way of reasoning. It can be questioned
whether this comes sufficiently to the fore in legal education as
most teaching materials often fail to offer alternative ways of
reasoning. Rather, the law is usually presented as having only one
possible solution. This rather narrow-minded approach could
be altered if textbooks, as a start, abandoned their approach of
using only one national jurisdiction and adopt a broader focus.
For example, rather than limiting their scope to German, or some
other, national contract law, students could start with European
contract law instead. See also infra, nos. 40 and 62.

This confirms that the doctrinal method does not offer any
normative certainty since it cannot answer the pertinent ques-
tion of how the law ought to read (so looking at which rule to
apply or how to decide a case of substance) as the arguments
behind the rule or the case are, in the end, decisive.

The temptation of law has long been to build a coherent and

self-referential system that can exist, independent of reality, by
making use of the mos geometricus. However, this will not lead to
certainty in applying the law (a re-definition of the value of a legal
system is given, infra, no. 45.

34. What Ought to Be? The Role of Law and Economics

Now that the doctrinal approach has been shown not to

offer sufficient certainty, the question still remains where one
might find more certainty in answering the lingering question
of what people and organizations legally ought to do. The
present approach, which seems to have gained some popular-
ity, is to consult other disciplines outside the legal arena. This
explains the rise of an economic analysis of the law, which
aims to offer a more rational perspective. Economic analysis
takes a utilitarian view and argues for the implementation of
legal rules that generate the most social welfare or benefits. In
the clear words of Kaplow and Shavell: ‘Legal rules should be

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 Methodology of normative legal science 63

selected entirely with respect to their effect on the well being

of individuals in society. This position implies that notions of
fairness like corrective justice should receive no independent
weight in the assessment of legal rules.’

See Kaplow & Shavell (2002, 3) and, for the many applications
of economic analysis to different fields of law, Posner (2011). The
descriptive variant of the field of Law and Economics was briefly
mentioned supra (no. 13). In the view of Kaplow & Shavell, the
social welfare of society as a whole consists of the aggregate of
all individual preferences of citizens. The many variations in the
definition of social welfare are not discussed here.

At first glance, the application of this utilitarian criterion

seems to offer the guidance needed to ban all uncertainty
about what societal actors are legally obliged to do. Each
rule is then judged on its impact on the welfare of individu-
als, taking into consideration the incentives provided for the
particular action and its costs and benefits. This has the dis-
tinct advantage that all the benefits and disadvantages of the
rule are brought back to one common denominator, which is
social welfare. This means that one value (such as justice) no
longer needs to be balanced against another value (such as
efficiency). More importantly, with such an objective measure,
one can forgo the difficulty of making a normative decision.
Put differently, the question of what people ought to do is then
answered by way of one general and non-legal criterion: ‘What
is it that we as individuals value most?’
Although it seems promising, does economic analysis really
live up to its promises and, if so, can it replace the normative
approach? There are three reasons why this question must be
answered in the negative. In the first place, there is the practi-
cal difficulty that tying the preferences of people to a single
(quantitative) denominator is not only difficult, but it will still
require a normative choice since individual preferences about
what monetary value to attach to a particular interest differ
greatly.

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 64 The mind and method of the legal academic

See Singer (2009, 920) for this ‘morally constrained utilitarian-

ism’: we cannot escape normative argument. Next to this practi-
cal difficulty, there is the more fundamental objection that many
values (such as the principle of equality or freedom of contract)
are simply unfit to be quantified or, at least, it is very difficult to
do so. Ultimately, figures alone cannot replace arguments.
The debate about the meaning of economic analysis for the law
is not as recent as it may seem. Economics as an ancillary tool for
(in particular) private law emerged around 1850 in Germany under
the influence of authors such as H. Dankwardt. The approach
even became fashionable in the 1880s thanks to the work of Victor
Mataja (1888) and Friedrich Kleinwächter (1883). Their general
stance was that the economic approach may be useful in so far
as one is dealing with the question of how the law should read
rather than what the law is, but that one should be careful about
replacing traditional legal analysis with economic analysis.

Secondly, economic analysis of the law is only interested in

people’s preferences and not in why these preferences exist in
the first place. Therefore, it does not sufficiently distinguish
between relevant and irrelevant reasons for a certain outcome.
In law, it is not only (or even primarily) the result that counts,
but it is the reason why this result was chosen that matters. To
quote an example from Singer, slavery is not wrong because the
preferences of those who oppose it outweigh the preferences of
those who favour it. If this argument were accepted, the dignity
of a few could be subordinated to the power of the majority.

Singer (2009, 918). In the legal field, arguing in terms of costs and
benefits alone will be ineffective. Otherwise, a party could claim
victory simply because its interest or welfare outweighed the inter-
ests of the other party or the community’s welfare. This cannot be
the basis of a convincing legal analysis.
The theory of ‘efficient breach’ clearly shows the limited value of
economic analysis for the normative question about the ‘ought’.
According to the doctrine of efficient breach, a contracting party
may refuse to perform a contract and pay damages instead if
this is economically more efficient. A party can thus decide not
to perform, if it will be better off without the other party being

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 Methodology of normative legal science 65

worse off as a result (because the latter will receive the expectation
interest). The premise is that the performances of both parties
can be expressed in monetary terms. However, Singer (2009, 945)
convincingly shows that this is often not the case. If the party
in breach of contract is, for example, a tenant who, before the
end of the lease of an apartment for one year, wanted to move
somewhere else because he had found a job in another town, it
would be efficient if the landlord allowed the tenant to sublet the
apartment to a third party – even if this were not allowed in the
contract. This seems to lead to an increase in the total amount of
welfare: the landlord will still receive the rent, the tenant can take
the job without extra costs, and his new employer is also happy
because his prospective employee can start on time. However, it is
entirely feasible that the landlord may have a non-economic inter-
est in not allowing the subtenant to move. It may be that he has
an interest in being paid by this specific tenant. It may also be that
he does not want the hassle of looking for a new tenant within
the agreed period. Perhaps these interests of the landlord are not
relevant but the point is that one needs a legal approach to decide
upon this. Singer’s example shows that the true (normative) ques-
tion is whether these are legally justified interests of the landlord.
This is a question that economic analysis is unable to answer.

The final reason why an economic analysis of the law cannot

replace a normative approach is that it assumes from the very
beginning a premise that is not universally accepted. It pre-
sumes not only that more social welfare is a good thing, but
also that each individual is free to determine his or her own
preferences. This is a liberal view that will not be shared by
everyone: many will say that part of this individual autonomy
must a priori be given up in order to achieve some degree of
social justice for everyone in society.

See Singer (2009, 916). In addition, it should be mentioned that

economics also derives its foundations from elsewhere and is at
times even dependent on the law itself. Economics presupposes
an institutional framework within which, for example, property
rights exist that can be freely transferred by way of a contract:
the legal status quo is as much the starting point in describing and

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 66 The mind and method of the legal academic

explaining reality as it is in judging why it should change (in the

variant of the field of normative Law and Economics).

These limitations do not mean that economic analysis is not

useful. As a matter of fact, legal rules are often deliberately
designed to achieve pre-set economic goals. Even if this is not
the case, it is useful to know about the costs and benefits of
implementing a certain rule or reaching a certain judicial deci-
sion. However, it is important to distinguish the usefulness of
economic analysis in those specific circumstances from its use-
fulness in answering the question about the ‘ought’. Although
economic analysis of the law can be a useful tool in answering
some legal questions, in the end it is an inadequate tool in
answering the question of what laws we ought to follow.

An example of how economic knowledge can feed legal judgments

concerns the scope of art. 114 of the Treaty on the Functioning
of the European Union (TFEU). This provision provides that
the European legislator can adopt measures for the approxima-
tion of national provisions tasked with the establishment and
functioning of the internal market. However, this is not a general
competence to regulate anything related to the internal market of
the EU. The European Court of Justice made it clear that a direc-
tive or a regulation based on art. 114 must genuinely have as its
objective the improvement of the conditions for the establishment
and functioning of the internal market. A mere finding of dispari-
ties between national rules and of the abstract risk of obstacles to
this market is not sufficient to justify a harmonizing measure (CoJ
EU 5 October 2000, C-376/98 (concerning tobacco advertising)).
This implies that economic research is needed in order to create a
legal basis for a new European measure aiming to better facilitate
the internal market. See Low (2010) for an extensive discussion of
what this may lead to.

35. What Ought to Be? The Empirical Approach

The use of empirical research is yet another approach often

offered as a helpful tool in determining how the law should

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 Methodology of normative legal science 67

read. Particularly in the United States, this has led to an influ-

ential view of the law that is usually referred to as ‘Pragmatism’.
According to Richard Posner, this is an approach that is ‘more
empirical, more realistic, more attuned to the real needs of real
people’.

Posner (1995, 19). A similar concern was voiced by the Dutch

author Maurits Barendrecht (2003), who argued that private law
may not sufficiently reflect the ‘interests, the real preferences of
people’. Naturally, one can always debate what the real interests
of people are.

If law is seen as an instrument to achieve a previously set aim,

empirical research is inevitable in determining whether this
goal has really been achieved and whether the chosen approach
has worked. However, one should not overestimate the impor-
tance of empirical research (see also supra, no. 16). There are
three reasons why this approach cannot be the decisive factor.
First, not all law is instrumental. In the prevailing view, the
law still has its own rationality and its success is not dependent
on the extent to which it can realize a political goal or serve as
an instrument. A different view would not be very democratic
since one of the main functions of law is to offer a counter-
weight to the majority that is setting the goal to be achieved.
To claim that the law serves an external goal makes the law
itself completely dependent on the desires of the majority. This
would characterize the law as a non-normative discipline.

An illustration of how ‘law as a means to an end’ can form a

threat to the rule of law see Tamanaha (2006) and cf. Watson
(2006, 212–213). In particular, Weinrib (1995, 6) explains why
it would be wrong to see law only as an instrument: ‘Because
the functionalist goals are justifiable independently and the
law’s purpose is to reflect them, the study of the law becomes
parasitic on the study of the non-legal disciplines (economics,
political theory, and moral philosophy) (. . .) that might validate
these goals. (. . .) Law provides only the authoritative form into
which the conclusions of non-legal thinking are translated. The

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 68 The mind and method of the legal academic

governing presupposition is that the content of law cannot be

comprehended in and of itself, simply as law.’ The functionalist is
trapped in his view that the law only serves, while in reality it also
determines reality as the conceptual apparatus of the law creates
its own reality. See also Feinman (1989, 663), quoted supra, no. 9.

Once again, this does not mean that empirical work is not
useful. On the contrary, if a rule aims to achieve a certain
aim (promote road safety, protect the weaker party, or avoid
crime), there is every reason to establish the extent to which
this rule is able to succeed in its task. However, one should not
make this the only decisive criterion with which to measure
success: empirical evidence cannot be decisive in a normative
approach. This leads me to two other objections.
First, the results of empirical research only rarely point in
one direction. Even if a theme is very well researched, such
as the famous question about the deterrent effect of capital
punishment, views remain divided about what the empirical
evidence actually proves.

This debate received new impetus after Cass Sunstein and Adrian
Vermeule showed, on the basis of recent empirical materials,
that carrying out the death penalty can have a significant deter-
rent effect on prospective criminals. In their view, each execution
would deter some eighteen murders. On the basis of this ‘life-life
trade-off’ there would no longer be a moral argument against the
death penalty: banning execution is equivalent to condemning as
yet unidentified innocent people to a premature and violent death.
The government, as a moral agent, must then look after the inter-
ests of these innocent people. The arguments that errors can be
made in convicting people and that an execution is irreversible are
not convincing enough: ‘a legal regime with capital punishment
predictably produces far fewer arbitrary and irreversible deaths
than a regime without capital punishment’ (Sunstein & Vermeule
2006, 731). The reliability of the empirical materials was subse-
quently disputed by, among others, Donohue and Wolfers (2006).
After the US Supreme Court had extensively cited Sunstein &
Vermeule in Baze v. Rees (553 U.S. 35 (2008)) – in which carrying
out the death penalty by injection was not held to be a violation

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 Methodology of normative legal science 69

of the Constitution – even Sunstein retreated from the evidence

he had previously characterized as ‘powerful’ and ‘impressive’.
Sunstein and Wolfers (2008) subsequently claimed that ‘the best
reading of the accumulated data is that they do not establish a
deterrent effect of the death penalty’.
Another well-researched topic concerns the question of whether
a ban on tobacco advertising leads to a fall in the number of
smokers. Here too, the answer is not clear. Schneider et al. (1981)
show that an advertising ban may help reduce tobacco consump-
tion among young people, but also conclude that adult smokers
are not significantly affected by it. Others dispute this seemingly
clear conclusion: see the overview by Saffer & Chaloupka (2000).
Also, the claim that common law jurisdictions are more conducive
to economic development than civil law jurisdictions will prob-
ably remain disputed in perpetuity. The latest development in this
subject is the conflict between the empirical materials provided by
Shleifer & Glaeser (2002) and the data of others that points in a
different direction (cf. Faure & Smits 2011).

The final point is that, although empiricists often claim that

they can provide lawyers with objective (non-normative)
knowledge, a closer inspection of their claims reveals that this
is not really the case. Both the question of what is actually the
problem and what is its solution require a normative evalu-
ation. In the end, even the empirical method cannot avoid
entanglement with the normative.

This is apparent from the view often held by pragmatists that the
law does not primarily reflect the intention of the legislature nor
should it be seen as a doctrinal system, but instead it serves to
solve a ‘real’ problem. However, this is not the traditional task
of the lawyer: it is not social reality that is the object of his study,
but – in the wording of Geoffrey Samuel (2009, 26) – the virtual
reality of the legal system, in which the objects derive their value
only from their place within this system. This does not mean that
lawyers cannot tackle this problem-solving task, but one must
be cognizant that, under that scenario, the distinction between
a lawyer and a social worker starts to blur. Under the pragmatic
(‘what works?’) approach to law, differences of opinion about the

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 70 The mind and method of the legal academic

nature of the problem, its importance, and possible solutions will

persist. Regarding this last aspect (the solution to the problem),
the stone of wisdom is sometimes sought in a procedure instead
of in a particular substantive rule. This can be at an abstract level
(as in John Rawls’ A Theory of Justice (1999), which attempts to
avoid normative conflicts of opinion by starting from a hypotheti-
cal process of decision-making), but also at the level of an actual
dispute by creating a ‘neutral’ procedure of conflict resolution. In
both cases a problem remains: the abstract level leaves open what
should be the outcome in a dispute while, at the substantive level,
the adequacy of the procedure can be questioned. Singer (2009,
907) states: ‘The unavoidable fact is that no matter how hard
we try to define impartial decision procedures, we face persistent
disagreement both about basic notions of what is good and right
and just and about which procedures are suitably impartial.’

36. What Ought to Be? Fundamental Rights as Cornerstones

The final method of establishing what ought to be in law that

is discussed here consists of references to fundamental rights.
It is often asserted that it may be true that one can doubt
the appropriateness of ‘normal’ rules or their application
but fundamental rights are cornerstones for deciding what
people ought to do. For example, one could argue that there
is no need to debate the value of the principle of equality and
freedom of speech. This argument, however, is not entirely
true. First, one only needs to skim any newspaper to see
how much debate there is over what freedom of speech actu-
ally means. The conflagration spreading across Europe over
what it means to ‘insult’ Muslims is a clear example of this.
Secondly, even if consensus exists about the exact contents of a
fundamental right, this right will, in an actual dispute, almost
always conflict with another fundamental right. Finally, even
the basic acceptance of some fundamental rights is debated, in
particular with regard to religious orthodoxies.

Cf. Singer (2009, 922): in so far as fundamental rights are undis-

puted, they are not sufficiently well defined to decide specific

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 Methodology of normative legal science 71

cases. Singer’s point is confirmed by the debate in Europe about

the extent to which fundamental rights can offer guidance in
deciding cases between private parties. Although it was claimed
that they can have a harmonizing effect (Mak 2007), this is in
practice not so evident. In particular, human dignity is a prob-
lematic ‘universal’ right: case law shows that there is much doubt
about what it actually requires. In the ‘wrongful birth’ cases, as
decided by different national courts, references are often made to
human dignity or some similar concepts but only to support con-
flicting views. Some of the highest courts in Europe have referred
to the general personality right of the child (and the child’s
dignity) in addressing the question of whether the parents can
claim damages from a doctor for the rearing of the child in cases
where a doctor’s malpractice (a failed vasectomy or other contra-
ceptive treatment) led to an unwanted pregnancy. However, this
did not lead to a single uniform outcome: different senates of the
German Bundesverfassungsgericht (BVerfGE 96, 375 and 88, 203)
are divided and the Dutch Hoge Raad allows compensation (NJ
1999, 145). the British House of Lords held in MacFarlane and
Another v. Tayside Health Board ([1999] 4 All ER 963) through
Lord Steyn: ‘Relying on principles of distributive justice I am
persuaded that our tort law does not permit parents of a healthy
unwanted child to claim the cost of bringing up the child from a
health authority or a doctor’. Whether the personality right of the
child or the autonomy of the parents should prevail is therefore
disputed (see also Lord Millet in Darlington Memorial Hospital
v. Rees, [2004] 1 AC 309 for an emphasis on the autonomy of the
parents).
European and international case law also shows how a concept
like human dignity lends itself to many different interpretations.
In the Omega-case (C-36/02, [2004] ECR I-09609), the European
Court of Justice explicitly refused to give one European interpre-
tation of what human dignity entails. In the famous Wackenheim
case, the United Nations Human Rights Committee concluded
that the French authorities were allowed to ban ‘dwarf tossing’
on the grounds of protecting the human dignity of someone who,
being 1.14 m. tall, made it his profession to be thrown onto an
airbed by clients of a discotheque (Wackenheim/France, U.N.
Doc. CCPR/C/75/D /854/1999). However, one can also argue
for the opposite result by claiming that human dignity does not

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 72 The mind and method of the legal academic

mean protection of the supposedly weaker party but should be

recognized through the autonomy of a contracting party who
wants to earn a living by freely choosing this line of work. See
Kant (1785[2002, 436]): ‘Autonomy is therefore the ground of the
dignity of human nature and of every rational nature’. See also,
with more details, Smits (2008a).

This also means that reasoning in terms of fundamental rights

is an inherently normative activity: undisputed rights do not
exist and, in so far as they are generally recognized, they are so
indeterminate that they offer only little guidance in deciding a
dispute.

The discussion about fundamental rights often takes place in

terms of conflicts between rights: if one party invokes a funda-
mental right, the other party is often able to invoke another one,
prompting the need to balance them both. In the famous German
suretyship case (BVerfG 19 October 1993, NJW 1994, 36), the
21-year-old daughter of a businessman agreed to stand surety for
an amount of more than 100 000 DM (approximately €51 000) for
her father’s debt to a bank. She did so by signing a pre-printed
form at the request of a bank employee, who told her: ‘Would you
just sign here, please? You are not entering into any important
obligation: I need this for my files’. The daughter was not very
well-educated, was unemployed most of the time, and when she
did work (usually in a Hamburg fish factory) she earned an income
of only 1150 DM (approximately €590) per month. When her
father was no longer able to pay his debts, the bank turned to his
daughter. The German Federal Supreme Court held her bound to
the contract, reasoning that any adult person knows that signing
a contract of suretyship entails a certain risk. The consequence
of its judgment was that she not only had to pay 100 000 DM,
but also a high monthly interest of 708 DM. In order to meet the
monthly subsistence level, she had to earn at least 1800 DM, an
income she had never had in her life and was unlikely to receive
in the future. This would have been the end of the matter if the
daughter had not appealed to the German Constitutional Court,
claiming that her fundamental right to private autonomy (art.
2 of the German Constitution), in conjunction with her human

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 Methodology of normative legal science 73

dignity, was violated by the civil court. Against this claim based
on her dignity, the bank (unsuccessfully) invoked another funda-
mental right: the freedom of contract that it had exercised that
compelled the daughter to honour her contract. This illustrates
very well that, in a conflict among private parties, both sides can
often invoke a right that is seen as fundamental. The question of
which right ought to prevail requires a normative decision.

37. Intermediate Conclusion: Normative Uncertainty is Both

Inevitable and Desirable

The clear conclusion to be drawn from the sections above is

that it seems impossible to give one uniform answer to what
one legally ought to do. Not only does the traditional doctri-
nal approach fail to give any definitive answers in the abstract
or in deciding an actual case, but neither does reasoning on
the basis of fundamental rights or making use of non-legal
methods lead to any definitive answers.

This does not mean that these approaches are not useful (and
this is not disputed at all for the other types of legal science dis-
tinguished supra, no. 5): they can even be of great service to the
normative approach. But it does mean that we need to re-think,
for each case, how precisely these insights can be beneficial in the
field of law. See also Samuel (2008, 314).

If this conclusion is accepted, we can identify two different

courses that are open. One way would consist of a continued
search for a method that could put an end to normative uncer-
tainty. However, I propose a different way. I am convinced
that the core of the legal approach is to recognize existing
uncertainty: the law can be reduced to disputes about what
legally ought to be. This means that we should not try to elimi-
nate normative uncertainty, but should take it as the starting
point of legal scholarship: if consensus about the normative
cannot be reached, we should not strive for it. This means that
it is not only inevitable that one can dispute the right outcome,
it is also desirable. Contrary to what is advertised in the

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 74 The mind and method of the legal academic

American Declaration of Independence, ‘self-evident’ truths

do not exist in reality.

Put more bluntly, a claim that suggests any of the methods

reviewed here is capable of delivering definitive results is a ruse
at best. This view fits in with a longstanding tradition. Aristotle
(340 BC [1934, 7]), Grotius and Erasmus (both referred to supra,
no. 30) all agreed that morality and law cannot offer mathemati-
cal certainty and therefore the nature of the law as an academic
discipline stands in the way of reaching consensus. Cf. Singer
(2009, 911): ‘normative argument is inescapable’ and Rubin
(1988, 1853), who makes references to the ‘irreducible normativ-
ity’ of law. This need for permanent debate is therefore the only
right point of departure.

Now that (normative) legal scholarship has been defined

as a discipline of conflicting arguments, we will explore the
consequences of this view in the next section.

2. TOWARDS AN EMPIRICAL-NORMATIVE
APPROACH

38. Are Personal Preferences Decisive?

The argument up to this point can easily be summarized. It

consists of two consecutive steps. In step one, the question
of what people and organizations are legally obliged to do
was identified as the core question of legal science. It was also
made clear why this question cannot be answered by relying
on the authority of institutions, such as legislatures and courts.
In step two, the lack of uniformity in answering the question
of what one legally ought to do was explained: law is a pre-
eminently argumentative discipline. It is now time to take a
third step: what does this view mean for the methodology of
normative legal science?
It should be noted, first, that within normative legal science,
law has not become a matter of personal (political) views,

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 Methodology of normative legal science 75

although some would disagree with this assertion. Both Ed

Rubin and Martijn Hesselink state that this should be the
case, based on the presumption that individuals have different
views about the right values in society and that, accordingly,
the academic method must also consist in making explicit
one’s own (for example liberal or social-democrat) normative
presuppositions. Or, in other words, whether a certain legal
argument can be accepted depends on one’s view of what is an
ideal society.

See Rubin (1988, 1893) and Hesselink (2009, 35). The latter
argues that each legal academic should therefore indicate on his
website, or in the publication itself, his political preferences. Only
after a transparent disclosure of these preferences can one truly
determine whether someone’s views about the law are consistent.
Another reaction to the idea that what one legally ought to do
is inherently uncertain, is to emphasize the importance of rhetoric
in legal discourse. Law does not then find its foundation in some
objective criterion, but in convincing others of the rightness of
one’s own arguments. Thus, Chaïm Perelman (1980, 129) claims
that legal reasoning is nothing more than ‘an argumentation
aiming to persuade and convince those whom it addresses, that
such a choice, decision or attitude is preferable to concurrent
choices, decisions and attitudes’. However, a problem with this
view is that the question whether an argument is convincing for
the other party, or for the forum or public at large, cannot be
answered without consulting existing law: the successful orator
will always have to give substantive reasons that matter to the
law. This being the case, rhetoric will have to rest on a firmer
foundation than just the power of persuasion.

In my view, this approach to what people ought to do in law

is too dependent on the political views of an individual. The
consequence of this would be that any sensible debate about
what is the right view is, in the end, no longer possible. A
proponent, for example, of more social justice in the law can
simply tell others that their view is just an opinion, as much as
his, without any need to persuade the other. This would end
all discussion.

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 76 The mind and method of the legal academic

See also Singer (2009, 902): the choice for a particular solution is
then no longer determined by a rational balancing of arguments,
but has become a matter of faith. Moreover, an overall politi-
cal view will – again – only seldom lead to guidelines on how to
decide actual cases.

39. The Empirical-Normative Method

My point of departure is therefore elsewhere. Even though one

can always debate what people legally ought to do, guidance
can be derived from existing normative frameworks. The type
of guidance that I am advocating, however, is different from
the usual kind. Existing law is mostly studied as a whole body
of authoritative statements made by institutions. This system
is usually consulted in order to establish how the positive law
reads – a method that was set aside before and labelled as insuf-
ficiently academic. What is therefore needed is a shift in perspec-
tive: existing jurisdictions should be considered as providing
empirical material on how to deal with conflicting arguments.
The academic method then consists of bringing these arguments
into the open and discussing the consequences of choosing one
argument over others. In this new perspective, case law and leg-
islation are no longer authoritative statements about what is law
within a certain jurisdiction but, rather, a source of information
about the power of a particular normative argument.

This means that the law is no longer studied as a system of binding

decisions (flowing from the formal sources of law) or as a functional
system (emphasising the extent to which law realizes an external
goal), but as a normative system where arguments can be put
forward in favour of and against certain outcomes. This is a way to
act upon the call made by Singer (2009, 931) to develop ‘structures
of normative reasoning that recognize the inevitability both of con-
troversial normative premises and procedures (. . .)’ with the added
benefit of allowing us to learn from experiences elsewhere.

This method can be defined as the empirical-normative

method. Under this approach, existing jurisdictions are

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 Methodology of normative legal science 77

treated as laboratories for dealing with conflicting normative

positions. They show which arguments exist in favour of, and
against, any particular solution, which arguments have pre-
vailed elsewhere and how the result has been received in that
jurisdiction. These insights can be made accessible for one’s
own jurisdiction through comparison.

This method combines the benefits of the normative approach

(that is, what ought to be is a matter of which argument carries
most weight) with those of an empirical approach (that is, by con-
sidering how this argument functions elsewhere and how it could
function in one’s own jurisdiction). Other than for the strictly
empirical approach discussed earlier (no. 16), this has the advan-
tage that empirical insights will already have been translated into
the legal context. The insight into how arguments function may
also be derived from one’s own jurisdiction but in my view this
is an approach that is too thin (see infra). The ultimate goal of
legal scholarship is to explore conflicting normative positions
and the best way to do this is by comparing situations in different
jurisdictions. See also Rubin (1988, 1893) and Schoordijk (1972),
who emphasizes that the task of the jurist is to explore all possible
cases.
The metaphor of jurisdictions as laboratories can be traced
back to the famous statement of Louis Brandeis in New State
Ice Co. v. Liebmann (285 U.S. 262 (1932)): ‘To stay experimen-
tation in things social and economic is a grave responsibility.
Denial of the right to experiment may be fraught with serious
consequences to the Nation. It is one of the happy incidents of the
federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.’

The empirical-normative method needs to make use of materi-

als from different jurisdictions: to consider only one’s own law
is too meagre an academic approach to law. Comparison with
other jurisdictions, and even with other normative systems
(such as ethics and social norms), shows how solutions adopted
elsewhere function. This may mean that the factual situation
elsewhere – the realization that some rule fulfils a useful

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 78 The mind and method of the legal academic

function – can lead to the normative judgment that this should

also be accepted as the right one for one’s own jurisdiction.

Present-day comparative law is primarily aimed at a comparison

of national jurisdictions. Glenn (2003, 844) rightly points out
that normative judgements should not exclusively be found in the
law of states. Instead, a ‘method of normative reasoning, within
and across state law’ must be developed. In the famous English
case of McFarlane v. Tayside Health Board (2000 SC (HL) 15),
Lord Steyn held: ‘The discipline of comparative law does not aim
at a poll of solutions adopted in different countries. It has the
different and inestimable value of sharpening our focus on the
weight of competing considerations’. This well reflects what legal
comparison is about: it is by comparing that one realizes that an
acceptance of a different argument can lead to better outcomes.
One does not need a tertium comparationis (see supra, no. 15) for
this: the mere fact that cases are not completely comparable is not
a barrier to learning from elsewhere. See on incommensurability
also infra, no. 46.

In an increasing number of cases, courts refer to foreign laws

to establish the value of particular arguments. A well-known
American example concerns the constitutionality of the death
penalty for crimes committed by 16- and 17-year olds. The
United States Supreme Court found support for its view that
execution is not permitted in these cases, basing its argument
in part on the fact that ‘the overwhelming weight of interna-
tional opinion’ is against the death penalty for juveniles. An
argument cannot be derived only from how a rule is perceived
elsewhere, but it is possible to look at other jurisdictions to
consider the effect of a rule. When debating the question of
the legal drinking age, inspiration can be drawn from jurisdic-
tions where this age is 16 (Italy), 18 (Spain), 20 (Japan) or 21
(United States) years, or completely absent (Albania), and the
effects of these differences can be established.

See Roper v. Simmons (543 U.S. 551 (2005)). See also Justice
Breyer’s dissent in Printz v. United States (521 U.S. 898, at 977
(1997)): ‘we are interpreting our own Constitution, not those of

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 Methodology of normative legal science 79

other nations, and there may be relevant political and structural

differences between their systems and our own. But their experi-
ence may nonetheless cast an empirical light on the consequences
of different solutions to a common legal problem.’ Markesinis
& Fedtke (2005, 97–98) and Dannemann (2006, 396) also point
to this empirical use of foreign law: comparison can show the
consequences of rules and how they should be evaluated. As an
example, Dannemann (2006, 398) mentions the newly established
rule in Germany that no longer requires all family members
(husband, wife and their common children) to have the same
surname. Before this change, it was feared that it could lead to
tensions within the family. But, in Latin America there is no uni-
formity of surnames within the family and this does not mean that
family ties are any weaker. Another example concerns the right to
cure malperformance of a contract as it exists under German law
(see infra, no. 42). Acceptance of such a right does not necessarily
make the law of contractual remedies more difficult to deal with,
as the Dutch legislature once feared.

There is, however, an important difference between a court’s

reasoning and legal scholarship. While the court (or legisla-
tor) will eventually have to make a choice and one argument
will prevail over the others, legal scholarship can confine itself
to sketching alternative approaches and thinking through
the relevant arguments. Legal academics can thus greatly
contribute to the making of a better decision but they cannot
control whether practice will make use of the insights they
provide: this is a matter for the institutions. In other words,
while legal science casts doubt, legal practice aims to end all
uncertainty.

Legislators and courts have themselves been inspired by foreign

laws because they are interested in the arguments used by their
counterparts elsewhere. Whether liability for pure economic loss
should exist is not dependent on the question of whether English
or French law allow this, but on the substantive arguments that
plead in favour of or against this solution and that may have been
discussed in an illuminating way in a foreign decision, a legisla-
tive memorandum, or even a textbook. Eventually, however,

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 80 The mind and method of the legal academic

the national legislator or court will need to decide for itself what
it considers to be the best outcome for its own jurisdiction. The
legitimacy of such a comparative inspiration is almost undisputed
in Europe. It is even seen as counterproductive not to profit from
insights obtained elsewhere (even though this may not happen as
frequently as one would wish). The basis of this view is that no
one jurisdiction is unique.
As popular as this view is in Europe, its value is heavily debated
(at least so far as the judiciary is concerned) in the United States.
The reason for this is best explained by US Supreme Court Justice
Antonin Scalia (1996), who wrote: ‘We judges of the American
democracies are servants of our peoples, sworn to apply (.  .  .)
the laws that those peoples deem appropriate. We are not some
international priesthood empowered to impose upon our free
and independent citizens supra-national values that contradict
their own.’ The American Constitution, in particular, is a unique
expression of the nation and the task of the judge is to help form
this nation by respecting the Constitution. When the United
States Supreme Court in Roper v. Simmons (see supra) referred
to the international consensus, Scalia heavily criticized this: ‘I do
not believe that the meaning of (. . .) our Constitution should be
determined by the subjective views of five Members of this Court
and like-minded foreigners (. . .).’

As well as adopting ideas from foreign arguments, legal schol-

ars can also investigate the adaptability of these arguments
within their own jurisdiction: one argument may be better
than another because it fits better with the existing normative
framework. The question of whether the doctrine of leasio
enormis should be accepted, or to what extent the consumer
needs to be protected against a professional party, can thus
also be answered within a certain jurisdiction.
The remainder of this chapter will elaborate on this particu-
lar method. Attention will first (no. 40) be paid to the need for
a new type of (normative) scholarship that is devoted to the
identification of arguments. This is not only important to the
study of national law, but also for newly established interna-
tional fields such as European private law or European crimi-
nal law. The age-old method of formulating and applying

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 Methodology of normative legal science 81

rules no longer seems fit for this field (no. 41). Next, the extent
to which legal scholarship must search for universal principles
is considered (no. 42), a question also relevant to deciding
when we can speak of legal uniformity (no. 43). Finally, the
proposed approach calls into question how to decide a dispute
and what is the role of doctrine in doing so (nos. 44–46).

40. An Argumentative Discipline

In the last two centuries, legal science has largely focused on

formulating rules and creating doctrinal systems. Not only did
the legislature draft rules through, for example, comprehensive
codifications of private and criminal law, legal science played
the role of a critical follower of the authoritative institutions.
This emphasis on the importance of rules and of the legal
system is understandable from the internal perspective of legal
scholarship, which has been noted previously. From this per-
spective, there is little need to criticize the importance of the
system of rules for reaching a decision in an actual case. Even
if the outcome in a case does not automatically follow from
the legal system, this is not a problem in a relatively homo-
geneous national society: if there is one prevailing legal culture
(‘morality’), the main actors in the legal community will know
how to reach a reasonable outcome.

Put differently, even if a rule does not determine its own field of
application (see supra, no. 33), one does not have to reflect funda-
mentally upon how a decision is to be taken: what the legal system
means in an actual case is determined by its ‘internal morality’
(Fuller, 1969, 33). This reflects the prevailing opinion of what is
right. Even without relevant rules, one would probably come to a
result that is generally accepted.

There are two reasons why this view no longer reflects the
present situation adequately. First, there is no longer one
prevailing morality at the national level. Views on the right
thing to do differ between groups on many issues. This calls
for a greater emphasis on the process of argumentation and on

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 82 The mind and method of the legal academic

the question of why a certain outcome is reached. Reference

to the existing legal system becomes less and less adequate.
This means that legal science should be less focused on rules,
the construction of the legal system, or finding the ‘right’
outcome, and more on the relevant arguments, and the way in
which a conflict between these arguments must be solved.

The less uniform the set of values a society has, the more substan-
tive reasoning it needs. The text and its interpretation are then less
important and one continuously needs to give reasons in favour
of, or against, a particular outcome. Atiyah (1980, 1255) describes
this development away from rules towards doing justice in the cir-
cumstances of the case as ‘a profound shift away from principles
to pragmatism’.

Secondly, increasing Europeanization also leads to a legal

science that is less focused on rules and systems and more on
substantive reasoning. Except in so far as some very general
principles, such as freedom of contract and protection of
property, are concerned, a uniform European morality does
not exist: even if uniform rules can be identified, they will be
interpreted differently in various jurisdictions. This means
that the emphasis should no longer be on the formulation and
application of rules, but on the substantive arguments behind
them. The German sociologist Ulrich Beck rightly claims that
law, and the way in which we describe it, must be re-thought
in the light of an increasing internationalization.

In the grandiloquent jargon of Beck (2003, 458), increasing

‘denationalisation’ and ‘transnationalisation’ should lead us to
a ‘reconceptualisation’ of law within a new cosmopolitan frame-
work in order to avoid the legal discipline becoming ‘a museum
of antiquated ideas’. In the nation-state, law consists of rules that
have come into being on the authority of the relevant institu-
tions and which – if need be with the help of state power – can
be enforced by a democratically elected government (Morgan &
Yeung 2007, 303–304). The way in which law is usually described
is in conformity with this: to describe law by way of rules suggests

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 Methodology of normative legal science 83

that these rules can be relatively easily applied, thus offering the
necessary legal certainty and equality. Our understanding of the
law is in this respect, largely determined by what rules can do at
the national level (Twining & Miers 2010). A law that is not based
on this process of national democratic decision-making should
therefore preferably be described in another way, rather than
through clear-cut rules.

41. Example: the Draft Common Frame of Reference for

European Private Law

This plea that legal science should be turned into an argu-

mentative discipline can be substantiated by reference to the
recently published Draft Common Frame of Reference for
European Private Law (DCFR). This document gives too
little account of the function it has.

The DCFR (Von Bar & Clive 2009a) aims to define principles,
definitions and model rules for a European private law. It consists
of detailed rules divided over ten ‘books’ and covers both the law
of obligations and parts of property law. The DCFR is presented
as an ‘academic’ text: it may be that the European legislature
can make use of it in revising the existing acquis, but it has an
autonomous role in teaching and research and in being a source
of inspiration for national legislatures and courts.
I am of the opinion that the DCFR suffers from so-called
‘methodological nationalism’ (a term coined by the sociologist
Herminio Martins; see Smits 2010): in drafting rules aimed to be
used primarily as a non-binding source of inspiration, the draft-
ers’ underlying presuppositions were based on the role of law in
the nation-state. Our traditional way of thinking, as developed
for law within a national society, is then transplanted to the
European level. The DCFR is an example of drafting and struc-
turing rules similar to a national code. There are three reasons
why this can be qualified as methodological nationalism.
First, we should recognize that private law at the European
level will continue to flow from various sources: there will be
a continuous infusion of private law emanating not only from
national and European sources, but also from private regulation.

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 84 The mind and method of the legal academic

This multi-layered structure of European private law prompts the

question, at which regulatory level are these issues best regulated?
The entire private law system can, in any event, no longer be gov-
erned by only one piece of legislation as this would be contrary
to the allocation of normative powers between the member states
and the European Union. The DCFR, however, seems to shows
little evidence of this insight that private law is a multi-layered
system (cf. supra, no. 17) since it aims to cover the whole of the
law of obligations and other parts of private law as if it were a
national code.
A second feature of national codifications is that there is
usually little doubt about what the relevant rules should be and
who should choose them. This is because, at the national level,
there usually is a generally accepted criterion to decide which
rules are to be incorporated in the code and because there is a
generally accepted procedure to adopt such rules (in most cases
a national democratic decision process). At the European level,
such consensus is lacking. This makes it all the more impor-
tant to make use of a clear method when deciding which rules
should be part of the DCFR and who should adopt the final text.
According to the drafters of the DCFR, its provisions are based
on a comparative analysis of the law of the member states and the
applicable European law. But this method is not very convincing
if one does not know how this comparative method was applied:
did the drafters look for the common denominator of the relevant
jurisdictions, or for the solution considered to be the ‘better’ one
and, if so, for what reason? Discussion about the contents of the
provisions is difficult if the drafters do not explain the motivations
behind their choice.
The final issue is whether the function of the DCFR has any-
thing to say about the way in which rules should be formulated.
In the nation-state, laws usually appear to consist of authoritative
rules backed by a coercive force that is exercised by legitimately
constituted democratic institutions. The way in which laws are
often represented matches these characteristics: describing the
law by way of rules implies that these rules can create the legal
certainty and equality needed to guide those affected by them. In
this sense, our understanding of rules is closely related to what
these rules can do at the national level: they organize society, pre-
suming that the rules came into being in a democratic process and

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 Methodology of normative legal science 85

can therefore be enforced by the state institutions. It is thus the

national democratic process that enables policy trade-offs to be
made transparently and authoritatively. The question is whether
law beyond the national state should be represented in the same
way, in particular when – as is the case with the DCFR – the
aim of the provisions is not to influence the conduct of private
parties directly and be enforced, but to be primarily a source of
inspiration. The answer must be in the negative: in my view, the
functions of legal texts are largely dependent on how they are
presented. Thus, a national civil code needs to be presented in
a different way from a set of rules that should help to improve
the existing acquis, should inspire legislators and courts across
Europe or play a role in legal science and teaching. The rules are
presently drafted as if they could be applied in the real world, but
this is not the case (see supra, no. 40). My view is that they should
reflect the competing principles that exist and how, despite differ-
ences in outcome in actual disputes, similar arguments play a role
in making choices among these principles. With this in mind, a
more discursive text, sketching alternatives, is to be preferred. See
also, with more details, Smits (2010).

42. Legal Science Not About Finding Universal Principles

The view expressed above also has implications for whether

legal science should search for universal principles. In the
course of history, there has been a constant desire to find
principles that are as certain as those in the natural sciences
amongst the amorphous mass of rules and cases that inundate
the legal field. However, as soon as the central question of legal
scholarship is about what people should do as a matter of law,
the value of drafting principles is limited: any lawyer knows
that, when a case has to be decided, legitimate principles will
always contradict each other in the end.

See, on the universal pretentions of legal science, also infra, no. 8.

The recent phenomenon of academics looking for the principles
of European private law (such as the PECL, the Principles of
European Tort Law and the DCFR) is a distant echo of the uni-
versalism practised by comparative lawyers in the early twentieth

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 86 The mind and method of the legal academic

century. Around that time, Raymond Saleilles, Edouard Lambert

and others aimed to uncover the common institutions and prin-
ciples to end what they considered to be only coincidental
differences among jurisdictions.

Instead of drafting uniform rules or principles, the empha-

sis should be on exposing the various arguments for and
against particular solutions, and on exposing how these argu-
ments work in different jurisdictions. Competition between
arguments leads to progress because one can learn from
experiences elsewhere.

See, on the importance of competition over legal rules (or argu-

ments or ideas) and the learning processes this generates, for
example, Wilhelmsson (2002) and Smits (2002b). This is also the
reason why I do not believe that the Draft Common Frame of
Reference for European Private Law shows ‘how much national
private laws resemble one another and have provided mutual
stimulus for development and indeed how much those laws may
be regarded as regional manifestations of an overall common
European legacy’ (Von Bar 2009b, 6). I am also convinced that,
in the field of private law, the European member states have a
lot in common (see infra, no. 43). But it seems wrong to conclude
this from merely being able to draft common principles. Whether
jurisdictions resemble one another only becomes clear if all the
relevant factors are taken into consideration. In doing so, it
may be more important to find uniformity in the use of similar
arguments than in common rules or case decisions: a common
text will necessarily be interpreted in different ways in different
countries.
An example of how identical arguments are weighed in different
ways concerns the question of whether a non-performing con-
tracting party has the right to a second chance, that is, to cure
its performance. This is the case in German law: where there is
late or deficient performance, the creditor is, in principle, only
allowed to terminate the contract (§ 323 BGB) or claim damages
in lieu of performance (§ 281 BGB) if he gave the debtor a period
of notice to repair his previous non-performance. This means that
the debtor has a Recht zur zweiten Andienung: he did something

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 Methodology of normative legal science 87

wrong (delivered too late or performed defectively), but still has a

second chance to repair his wrongdoing. With the revision of the
German law of obligations in 2002, the German legislator thus
explicitly strengthened the rights of the seller against the buyer,
who already receives ample protection by way of European
directives.
Dutch law does not recognize this right to a second chance to
perform. Where there is non-performance, it is enough to show
the default of the debtor. This means, for example, that if a time
was set for performance, and this time has passed, the creditor
can immediately claim damages. The only thing the creditor
needs to do is to send an omzettingsverklaring (art. 6:87 BW):
the written announcement that he now claims damages in lieu
of performance. In the case of termination, a written statement
that the contract is terminated suffices (art. 6:267 BW). This
does of course not mean that it is impossible in Dutch law to
set extra time for performance: the creditor has the option to
do so, but the debtor has no right to it. In this respect, Dutch
law is like the PECL, which holds in art. 8:106 that the creditor
may fix an additional period for performance. This is a case of
Selbstbindung by the creditor: the creditor binds himself and can
therefore not claim performance or termination during the set
period.
All in all, it can be concluded that German law goes further in
protecting the debtor against the enforcement of remedies by the
creditor than Dutch law. This leads me to the question, ‘Which
system can be considered the better one?’ ‘What are the policy
reasons behind allowing the debtor a second chance to perform?’
I think there are two. First, there is the binding force of contract:
if a party is allowed a second chance to perform, the contract will
remain binding for a longer period of time. This is in line with the
idea that once a contract is made, it should be upheld as long as
possible and there have to be very good reasons to terminate or
to claim damages instead of the specified performance. The mere
passing of a fatal date may not then be enough. Secondly – and
related to the first argument – the possibility of a rather quick
termination, or allowing a damages claim, may lead to all kinds
of complications. The amount of damages has to be assessed
and, if the contract was already partly executed, the performance
needs to be redressed, which can be difficult. This means there is

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 88 The mind and method of the legal academic

an important incentive for the parties to simply perform instead

of entering into these difficult questions.
The next logical question is whether there are any arguments
against a right to cure the malperformance. One is the moral
argument that the debtor did something wrong when he failed to
perform in a timely manner and that this in itself should allow the
creditor to claim damages or (under certain circumstances) termi-
nation of the contract. The Dutch legislator considered the adop-
tion of the second chance to perform, but rejected it for exactly
this reason. He also stated that Dutch legal practice would favour
the possibility of the creditor immediately suing the debtor.
However, it can be doubted whether this is really true. According
to the case law of the Dutch Supreme Court (e.g. Hoge Raad 4
February 2000, NJ 2000, 258 (Kinheim/Penders)), the right of the
debtor ‘to try again’ is seen as important. Also, the European
directive 1999/44 on the sale of consumer goods gives the seller
the right to repair or replace them. This seems to be evidence of
a tendency to allow a contracting party to correct his or her mis-
takes. Another reason why the Dutch legislator refused to allow
the debtor a second chance to perform was that the alternative
was ‘simpler’. However, this is difficult to see: a system in which
the creditor first needs to set extra time for performance before
he can claim damages or termination is not necessarily more
complicated. See Smits (2008b).
Weighing identical arguments thus leads to different outcomes.
However, the temptation must be resisted to distil an abstract
principle from this, which can only lead to what Clifford Geertz
once called a ‘skeletonization of fact’: a dilemma is then reduced
to an abstraction for the sake of finding consensus. This is – in the
vivid language of Lawrence Friedman (Legrand 1997, 59) – as if
one ‘took fields of living law, scalded off their flesh, drained off
their blood, and reduced them to bones’.

43. When Should There Be Uniformity of Law?

The mere fact that the application of rules or principles will

lead to different outcomes in different jurisdictions should
indeed be a reason to speak about uniformity. Rather, the use
of similar arguments is the criterion to judge legal uniformity.

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 Methodology of normative legal science 89

The question of when exactly legal uniformity comes into existence

can be answered in different ways. Thus, one can find uniformity in
rules and in how these are applied by the courts. This means that,
in order to be able to speak of uniformity, the law must consist
of similar rules being applied in a uniform way throughout the
European Union. However, this is a problematic criterion because
such convergence does not even exist at the national level: differ-
ent judges within one country can decide a similar case in different
ways. And yet, this type of convergence is often meant when legal
unification is being discussed in the European context. The provi-
sions of the PECL and DCFR are written to help in achieving this
type of convergence by way of rules. A lower level of unification is
aimed at if commonalities are sought in principles or fundamen-
tal rights. A third possible criterion is whether the applied rules
or achieved outcomes are functionally similar. Uniform law then
exists if an identical goal (for example protection of the consumer
or prevention of unfair competition) is achieved.
I believe that there ought to be another criterion in this discus-
sion, which is whether different jurisdictions use similar argu-
ments. In this respect, it is not relevant whether these arguments
are given different weights (see also supra, no. 42). For example, it
does not matter if German law regards a given prescription period
as absolute while Dutch law does not if there is evidence of excep-
tional circumstances. It also does not matter that views of the
legality of ‘dwarf tossing’ differ amongst jurisdictions (see supra,
respectively, no. 33 and no. 36) so long as, in giving a judgment, all
relevant arguments were weighed.
This view fits in well with the experience of the only real
common law system that exists at present: that of England and
its former colonies. Within common law countries, there is
already a strong sense that the type of reasoning defended above
is conducive to legal development. In particular, courts within
the British Commonwealth tend to be inspired by arguments
used by their foreign colleagues (see Smits 2006), even though
this does not imply that the common law is identical everywhere.
In the New-Zealand case of Invercargill City Council v. Hamlin
([1996] 2 WLR 367), the Privy Council noted that the common
law can differ, dependent on ‘general patterns of socio-economic
behaviour’. Lord Lloyd of Berwick claimed that ‘the ability of
the common law to adapt itself to the differing circumstances of

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 90 The mind and method of the legal academic

the countries in which it has taken root, is not a weakness, but

one of its great strengths’. This led the court to conclude that the
concept of negligence received a different meaning in the law of
New Zealand than in English law.

This emphasis on arguments is also the core of the common

European legal tradition of the ius commune as it existed before
the national codifications of the nineteenth century. This ius
commune never sought uniformity of rules, but was character-
ized by a method focused on finding the best outcome, using a
not so clearly defined pool of rules, principles and arguments.
Based on these predispositions, Roman law was used as a
source, not because there was any compelling duty to do so,
but because the solutions offered were seen as having informa-
tive value in arriving at the right decision. This is also why, if
contemporary sources could contribute better to the goal of
reaching the best outcome, they were given precedence over
the received Roman law. This made the method pre-eminently
an international one: there is no reason whatsoever to assume
that arguments brought forward elsewhere would be of less
importance than those accepted in one’s own country.

It was rare in the ius commune tradition for there to be a strict

duty to apply a certain rule to a case: how could it be otherwise
when the available materials were partly contradictory? In other
words, people drew inspiration from the rules that were seen to be
best for dealing with the case before the court. Roman law offered
an extensive inventory of solutions to legal problems but the
insights of contemporary authors were also used if this was found
to be useful. The way in which Derek van der Merwe (1996, 356)
defines the jurist in a mixed jurisdiction was also true for the ius
commune. He states that as an ‘instinctive eclectic: [the jurist] will
seek authority in the grand manner, the process of distilling legal
wisdom largely uninhibited by rigid doctrinal boundaries. Such a
state of mind is conducive to an unfussy flexibility in the applica-
tion of the law.’ See, with many details, Smits (2002a, 158 ff.).
Having said this, we can only concur with Zimmermann (1997,
293): ‘The essential prerequisite for a truly European private law

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 Methodology of normative legal science 91

would appear to be the emergence of an “organically progres-

sive” legal science, which would have to transcend the national
boundaries and to revitalize a common tradition.’ The way to do
this is to search for arguments used in the European jurisdictions.

44. Emphasis on Deciding Cases; Practical Wisdom

It was emphasized in the section above that, in law, principles

and arguments will always conflict and that the academic
method should therefore consist of the identification and re-
thinking of the relevant arguments. This makes it important
to ask how, in practice, choices should be made so that one
argument prevails over the other. This is also important for
legal science: although it is not the primary task of legal aca-
demics to decide actual cases, one can expect that they will
demonstrate how to do this in the specific normative setting of
a jurisdiction.
The point of departure is what was earlier mentioned (for
example, in no. 33) about the situation sense of the law: what
ought to be in the actual case, can never be captured by rules
or principles. The true decision will lie in balancing conflict-
ing arguments: everyone accepts general principles such as
equality, freedom of contract and protection of property, but
what these principles really mean and how they conflict with
each other only becomes clear when they are applied to a real
case. This insight should lead to a re-evaluation of the law as
practical wisdom. This view of the law, which disappeared over
the horizon in the last few centuries due to the influence of the
methodology of social and natural science, best fits the core
activity of the jurist.

Practical wisdom (phronesis in Aristotle’s Nicomachean Ethics) is

the intellectual virtue of establishing what to do and which goals
to achieve. In the work of Aristotle, it is distinct from sophia,
which is concerned with universal truths (theoretical wisdom).
Practical wisdom emphasizes that every case is unique and that
it takes an experienced person to deal with it. Whilst sophia is
only reflective, practical wisdom gives pride of place to the actual

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 92 The mind and method of the legal academic

making of a choice and to the arguments which are decisive in

doing this. Wisdom can be found in the many cases that have
been decided in the past but not so much in abstract rules and
principles.
Inspiration for a characterization of legal activity as practical
wisdom can be found in the work of Stephen Toulmin, Alasdair
MacIntyre and Martha Nussbaum. They all show how, before
the rise of rational positivism, methods existed to balance values
against each other in actual cases and how these methods made
way for a more reductionist model of judgment-making in the
seventeenth century under the influence of the rational positivist
paradigm of knowledge. Toulmin (1990, 30) captures the prevail-
ing academic method of the last 300 years well: ‘Formal logic was
in, rhetoric was out, general principles were in, particular cases
were out, abstract axioms were in, concrete diversity was out,
the permanent was in, the transitory was out.’ This led to ‘moral
algebra’, the almost mathematical balancing of values.
This narrative is consistent with how Schröder (2001, 23)
describes legal science: until the Enlightenment, the emphasis
was on finding the right solution (inventio) and making use of
catalogues of important viewpoints (topoi). The successful book,
Topica Iuris, Sive Loci Argumentorum Legales of 1516 is well
known. In it Nicolas Everaerts discusses more than 100 such
arguments. Around 1700, the use of topoi, as a way of determin-
ing the right outcome, was largely discarded to make way for sys-
tematization. Systematization, however, had its own limitations
because the legal system can never, in and of itself, offer results.
Now is the fitting time for accepting (again) that choices
among conflicting arguments can only be made in a practical
way. Nussbaum (1986) and MacIntyre (1981) rightly emphasize
that the weighing of interests is only possible in a real case and
that any more abstract rules necessarily have a ‘rule-of-thumb’
character. People do not make practical choices on the basis of
abstract truths or, as Holmes (1870, 1) stated: ‘it is the merit of
the common law that it decides the case first and determines the
principle afterwards’. This fits in with the plea that social sciences
should no longer be led by scientific methods, but should be prac-
tised primarily as phronetic social science. This view was expressed
by Bent Flyvbjerg (2001) who shows that, although social scien-
tists have long applied the idealisms of the natural sciences in their

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 Methodology of normative legal science 93

studies, this has not led to the ability to explain or predict social
reality. Social scientists should therefore do what they are good
at, instead, which is to engage in the normative discussion about
which values our society should strive for and how to accomplish
these goals. In other words, in order to become relevant again,
social sciences should inform us about practical reason.

If legal practice is seen as a special form of applying practi-

cal wisdom, this may mean that the decision-making process
itself is not transparent. The mere reference to the experience
(‘wisdom’) of the legal decision-maker does not reveal how
this decision is made and that may invoke the criticism that the
decision is, in the end, nothing but a ‘mystery’. It will become
clear in no. 45 infra that this reproach is not justified.

It may be surprising that Richard Posner (2003, 64) also recog-

nizes that in a pragmatist view of law, the ultimate criterion for
the court is reasonableness: ‘There is no algorithm for striking the
right balance between rule-of-law and case-specific consequences
(. . .). In fact, there isn’t too much more to say to the would-be
pragmatic judge than make the most reasonable decision you can,
all things considered’. Cf. Menand (1997).

45. The Importance of Legal Doctrine

Practical wisdom depends to a large extent on the mature,

yet subjective, view of the person making the decision. It is
usually assumed that practical wisdom should also rest on a
source of knowledge that is external to the decision-maker. As
previously indicated (no. 39), doctrine (including previously
decided cases) can fulfil this role in the empirical-normative
approach, provided that it is regarded as providing empirical
materials on how to deal with conflicting arguments.

It would be going too far to consider at this point the exten-

sive (philosophical) discussion about how to underpin practical
wisdom. However, one important school claims that it is vital for
practical wisdom to make use of external sources in establishing

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 94 The mind and method of the legal academic

what it entails. Thus, John Finnis (1997, 221) refers to moral-

ity and Millgram (1997, 161) to experience. Hsieh provides an
overview of the discussion (2011).

Doctrine (‘dogmatics’) can be seen as representing the norma-

tive complexity of the law: the thousands of rules and decided
cases, each with their own nuances, show the many ways
in which the law can deal with conflicting values. Doctrine
thus reflects how subtle the law can often be and why a small
change in the facts can lead to a wholly different outcome.
The elaboration of the doctrinal system is therefore not an
etheric activity unconnected to reality, but an essential part
of a legal activity aiming to capture the subtleness of the law
in words.

It must be repeated that the question of whether an argument

can be accepted within a particular jurisdiction can only be
answered in that jurisdiction’s normative context (see supra,
no. 40). Doctrine thus enlightens us about the prevailing norma-
tive approaches. It is therefore no coincidence that, despite fierce
attacks from several corners of academia, doctrine did survive.
S.D. Smith (1992, 629) states: ‘Indeed, to suggest that legal
scholarship should be less obsessed with doctrine would be like
suggesting that historians should not spend so much effort study-
ing things that happened in the distant past, or that astronomers
ought to worry more about earthly concerns instead of concen-
trating so exclusively on remote heavenly bodies.’ Each argument
must be passed through the filter of the legal system before it can
be accepted: the legal activity consists in great measure in feeling
out the system, turning each rule into a rule of thumb, and each
previous decision into a possible example of how to decide the
case in question. This is no easy task, and even if it may seem
easy initially, a competent lawyer will make it difficult, not to
keep himself busy but because he knows that subtle nuances are
relevant. Singer (2009, 938) puts it like this: ‘law is complicated
because qualitative distinctions matter, and they matter at this
level of detail’.
Legal doctrine not only fulfils a role as a source of practical
wisdom, but it has two other functions as well. First, it creates

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 Methodology of normative legal science 95

a shared framework of texts, concepts and categories, without

which a debate is not even possible. This is not only recognized
in Europe (see, for example, Jansen 2005, 755), but also else-
where. Tiller & Cross (2006, 1) rightly claim that ‘legal doctrine
is the currency of the law’. Many legal questions cannot even
exist without a doctrinal system. Thus, the question of whether
a security right in a moveable asset (‘pledge’) must be registered
or whether constitutional review is available cannot be answered
without a legal framework. In this respect, doctrine creates the
legal reality (cf. supra, no. 9).
Secondly, a doctrinal system can add to the coherence and
lucidity of the law. The well-known criticism of the Critical Legal
Studies movement (Unger 1986 and Kennedy 1976, 1685) that a
doctrinal system has no other value than to disguise underlying
contradictions is therefore far-fetched.

As a result, the normative activity of the legal scholar will

consist of two steps. First, the relevant arguments for and
against a certain solution need to be identified and recon-
sidered by making use of the empirical-normative method.
Secondly, one can consider how these arguments fit into an
existing normative setting (for example, a national jurisdic-
tion). It is difficult to judge this in the abstract: the most con-
vincing argument in the United States is not necessarily the
same one as in Germany.

46. Which Argument Prevails? Comparison Without a

Tertium

There is still another aspect of practical wisdom that needs

attention. Comparison plays a fundamental role in the view
of doctrine as empirical material in dealing with conflicting
arguments. Such comparisons can take place at different
levels. Thus, the decision for one argument to prevail over
another in a particular case can be based on a comparison of
similar cases. At a more abstract level, the acceptance of rules
(or even of a whole normative system) can be made dependent
on how to value this system in comparison with others.

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 96 The mind and method of the legal academic

Jonsen & Toulmin (1988, 34) characterize very well the impor-
tance of comparison in the approach developed above (that it
does not search for the truth in a coherent and axiomatic system,
but in the experience laid down in actual decisions about unique
situations): ‘Practical arguments depend for their power on how
closely the present circumstances resemble those of the earlier
precedent cases for which this particular type of argument was
originally devised. So, in practical arguments, the truths and cer-
titudes established in the precedent cases pass sideways, so as to
provide “resolutions” of later problems (. . .).’

Scholars of comparative law tend to stipulate that any mean-

ingful comparison must be based on some objective criterion
(the so-called tertium comparationis). The (still prevailing)
functional comparative method is based on this idea. However,
if the functional measure of the comparison is sought in a cri-
terion that is external to the law (such as utility or welfare),
it is still a non-normative factor that is used to determine the
‘better’ jurisdiction. This is at odds with the idea that practical
wisdom makes use of existing experience in judging an argu-
ment in a legal way. It is equally problematic that the func-
tional approach brings diverse views of what people ought
to do as a matter of law back to one common denominator.
We saw earlier (for example, in no. 34) that this is impossible.
The literature on pluralism of values shows that alternatives
can be compared without having to fall back on some neutral
measure.

In no. 15 supra, I have already argued that comparison without

a tertium comparationis is entirely possible, for example, by way
of a ‘comparative second-order language’. This would even be
necessary if no universal and absolutely valid value existed to
which all arguments can be reduced. As Schroeder (2002) writes:
‘No single metric can capture the rich diversity of values’. See
also Nussbaum (1995, 14). This value pluralism presupposes that
many different values and goals are worth aiming for, but that this
can also lead to many conflicts among them, as in Isaiah Berlin’s
(1969) classic example of rival positive and negative liberty. This

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 Methodology of normative legal science 97

can make it difficult to choose: ‘There is an objective moral order,

but our perception of it is such that we cannot bring rival moral
truths into complete harmony with each other. To choose does
not exempt me from the authority of the claim which I choose to
go against’ (MacIntyre, 1981, 143). This is expressed more vividly
in Simon & Garfunkel’s ‘Mrs. Robinson’ (1967): ‘When you’ve
got to choose, | Ev’ry way you look at it, you lose’.
Various authors have considered how, despite the existence of
incommensurable values, one is able to reason in favour of one
alternative or the other. Even if values cannot be measured on
the basis of one common standard, alternative solutions can still
be positively compared with each other. Hsieh (2011) gives an
overview of proposed solutions on how to do this. For the legal
discipline, Jonsen & Toulmin (1988, 330) show how the case at
hand can be compared with previously decided paradigm cases.
Ronald Dworkin’s (1986) view of common law jurisprudence as
a chain novel also implies that comparison is possible without
making use of an explicit external measure by finding analogies
in a more subtle way. Lawyers, consciously or not, practise these
insights on a daily basis. See also Dannemann (2006, 396ff.),
with reference to John Stuart Mill’s ‘method of agreement’ and
‘method of difference’.

3. CONCLUSIONS

47. Summary

This chapter started by asking how to determine what one

is legally obliged to do if one cannot have recourse to the
authority of legislatures and courts. It was argued in the sec-
tions above that there is no one answer to this question and
that the core of the academic study of law (at least in the
normative approach) consists of showing time and again that
one can dispute in perpetuity about what ought to be. The
realm of legal science consists then of identifying and re-think-
ing arguments, and of demonstrating how these arguments
might fit the normative setting of a specific jurisdiction. The

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 98 The mind and method of the legal academic

accompanying method is the empirical-normative one: exist-

ing jurisdictions can be seen as laboratories for how to manage
conflicting normative positions. The eventual adoption of one
argument as the stronger can only take place in the context
of a particular jurisdiction. The way in which this decision is
made is best described as an application of practical wisdom.

This plea will of course not be accepted if one believes that the
law is a question of authority and is only binding because of the
institutional place of the legislature and courts. See Collier (1991,
194). However, what Geoffrey Samuel (2008, 314) claims about
comparative lawyers is, in my view, true for any jurist: they must
work ‘within a spirit of enquiry rather than authority’.

48. Normative Scholarship as an Academic Discipline

In no. 21 supra, three requirements were identified that any

academic discipline should meet. Academic work does not
only aim for the systematization of knowledge, but this
knowledge must also have been obtained by a method that
is recognized as valid by the academic community and must
supersede that of a local authority. The question must now
be answered to what extent normative legal scholarship meets
these requirements.

No. 22 supra discussed how far the other (non-normative) types of

legal science discussed in Chapter I can meet the requirements of
an academic discipline. The mere fact that normative uncertainty
is an important characteristic of the law does not mean that aca-
demic work in law cannot meet these requirements. Uncertainty
does not rule out a rational approach or, as Singer (2009, 929)
says: ‘Perhaps reason can coexist with controversy.’

It is beyond doubt that normative legal science can meet

the first requirement. The proposed approach gives pride of
place to the extension of the existing arsenal of legal know-
ledge: instead of formulating and interpreting national rules,
the emphasis is on the identification of arguments and on

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 Methodology of normative legal science 99

investigating how these are weighed in different jurisdictions.

This empirical material is stored in tens of thousands of rules
and judicial decisions. This does imply, however, that we must
search for new structures to categorize these arguments: the
present systematic divisions along the lines of national legal
systems must be abandoned.
Normative legal science can also meet the second require-
ment: legal science forms not only an academic practice (see
supra, no. 21), but it can also adopt a clear research method
by way of the proposed empirical-normative method that was
explained above (no. 39). This requires a shift in perspective:
case law and legislation should not be considered as sources
of what the positive law says, but as empirical material about
the strengths and weaknesses of certain normative arguments.
Finally, the renewed attention to arguments means that
legal science is no longer dependent on national law but has
the potential to become a truly international discipline. It
would be wrong to find the universal character of the legal
discipline at the level of rules (as is the case in many projects
in the field of European private law). This falsely suggests that
these rules – with their pretence of being applicable – can be
understood in the same way throughout Europe.

In some fields, such as those of European private law and

European constitutional law, an extensive international debate
already exists. It is clear that in the view defended in this book,
academic debate preferably takes place in English: if one’s aim
is to identify and reflect upon arguments, one is not bound by
national borders or by one’s own language. See also infra, no. 62.

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 IV. Organization of the legal-
academic discourse
1. INTRODUCTION

49. Debate about Organization

I commented in the Introduction that the present discussion of

legal scholarship is not only about its aims and methods; it also
deals with the way in which universities organize their research
and teaching, assess their researchers, and classify their jour-
nals. In this debate, there is often a surprising lack of awareness
about the place of legal scholarship in comparison to other dis-
ciplines. It is also not uncommon for views of how the legal dis-
cipline should evolve to be primarily determined by concerns
about its quality and funding, rather than by substantive issues.
In the Netherlands (cf. Stolker 2003 and 2005), the debate about
the academic aspirations of legal science was boosted by a concern
to defend legal research against other disciplines that do not take
it seriously enough. However, the themes discussed in this chapter
are not unique to legal research: many of the trends mentioned
below can be found in other academic disciplines as well (such as
the debate about methodology) or even in society as a whole (the
turn towards ‘market thinking’).

This last chapter discusses several questions surrounding the

organization of legal discourse. The views expressed follow
partly from the view of legal scholarship that was defended in
the previous sections, but it will also contain an independent
analysis of the matter, equally taking into consideration types
of legal research different from the normative variant (see
supra, no. 5).

100

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 Organization of the legal-academic discourse 101

The consequences of my proposed view of legal scholarship for

aspects other than the organization of research are omitted from
this book – even though these consequences do exist. One impor-
tant result of the law being about conflicting normative positions
lies, for example, in the organization of the highest courts: it can
be argued that a system of concurring and dissenting opinions
would lead to better argumentation than a system in which the
court speaks with only one voice. The argument that introduc-
ing dissenting opinions would not be conducive to collegiality,
as the President of the Dutch Supreme Court Geert Corstens
recently noted (Lindo 2009, 1078), seems an admission of weak-
ness. Allowing the well-argued views of fellow judges to be heard
could lead to a more open discussion among judges and in society,
in particular, when there are controversial decisions. See Smith
(2009) on the close link between allowing dissenting opinions and
a jurisdiction’s aversion to bureaucratic authority.

If legal scholarship is characterized as a permanent debate

without any definitive answers about what people ought to do
as a matter of law, the first question to be addressed is what
this means for the legal discipline in terms of what it contrib-
utes to making progress, and how legal academics can carry
out creative research. This question is discussed in Section 2,
followed by a discussion of the question of the methodology
of legal science and the extent to which the legal discipline has
its own character in Section 3. This opens up the way for a
discussion in Section 4 about the academic culture in law and
how best to organize legal research and teaching.

2. INNOVATION IN LEGAL SCIENCE

50. The Importance of Creativity

The prestige of any academic discipline is to a large extent

determined by innovators and by the degree to which their new
ideas are appreciated by the community of scholars. Academic
success is then measured by the passionate propagation of

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one’s own ideas and by the extent to which others follow in the
footsteps of the innovators. This is also the case in legal schol-
arship: in every episode of its history, we can point to individu-
als who challenged existing knowledge and were subsequently
followed by others. Many of the present concepts, rules and
methods used in the field of law today are the past works of
creative jurists. This notion of law as a man-made product
ought to be emphasized more in legal education.

I can only refer here to some striking examples in the limited

field of private law (and without elaborate reference to sources).
There has been an influx of generally adopted legal ‘inventions’
(see Hoeren 2001) and it is difficult to imagine the legal field
without them. The concept of the ‘legal act’ (Rechtsgeschäft) is
a clear example of a legal institution that was invented by Von
Savigny in order to facilitate legal thinking (see also supra, no. 8).
Notions such as offer, acceptance, and obligation also received
their present, well-defined, meaning within a system of private law
only as a result of the work of the Pandectists. Even the idea that
it is useful to systematize the law at all was (under the influence
of Humanism) ‘invented’ in the sixteenth and seventeenth century
thanks to innovators such as Donellus, Leibniz, Pufendorf and
Wolff. The work of Von Savigny (1814 [1831, 30]) is also impor-
tant because he caused a shift in the paradigm: law does not
follow from reason, but is developed first ‘by custom and popular
faith, next by jurisprudence’. He was equally influential in making
explicit the methods of statutory interpretation (grammatical,
logical, historical and systematic) that exist (cf. Stein 2000, 13).
Another innovation, namely, that the application of law must
primarily be tailored to the interests of the actual case, can be
derived from Von Jhering. Present-day innovators no longer tend
to come from Germany but from the United States: without the
pioneering work of Ronald Coase, Guido Calabresi and Richard
Posner, the insight that the law can also be viewed from the
economic perspective would not have been accepted. Duncan
Kennedy’s critical approach towards the law is of equal impor-
tance. More recently, Steven Levitt gave a whole new impetus to
the empirical approach to law (see supra, no. 16).
It is striking (if not disappointing for the state of the legal

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 Organization of the legal-academic discourse 103

discipline) that revolutionary innovators often feel it better not to

reveal their true names to the legal community. This was true for
Von Jhering who, in 1861, published his accusations against the
prevailing Begriffsjurisprudenz anonymously in the form of confi-
dential letters. In 1906, soon after the introduction of the German
Civil Code, Kantorowicz waged war against existing legist judi-
cial practice in The Battle for Legal Science under the pseudonym
Gnaeus Flavius. Around the turn of the twentieth century in
South Africa, the battle over the thorny question of whether to
adopt English law or Roman-Dutch law was also fought under
fictitious names (see Smits 2002a, 165ff.).

It is difficult to overestimate the importance of innovative

research. In particular, the academic work that takes place at
universities ought to challenge existing knowledge and offer
new perspectives. Any researcher worth his salt ought to be
driven primarily by his intellectual curiosity, motivated by
his desire to discover something new, and to be fearless in the
face of challenging the establishment. Just like the first wave
of abstract painters or atonal composers, gifted research-
ers must strive not simply to imitate their predecessors, but
to attempt to create something new. To advocate otherwise
would be the literary equivalent of wishing that such diverse
authors as De Sade, Robbe-Grillet and Coetzee wrote about
the same subjects in the same way. Unfortunately, it is not the
standard view of the layman or first year student that legal
science offers just as many possibilities for this as astrophysics
or neuroscience does. On the contrary, the common opinion
seems to be that getting to know the law and its system should
go hand in hand with abandoning an inquisitive attitude.
Studying law often means that one learns about the certain-
ties of a legal system without asking how things could be done
differently. This does not match the intellectual challenge that
legal questions can offer.

Cf. Posner (1990, 431–432). Also, the Amsterdam professor Ad

Lagendijk (1997) emphasizes that in physics ‘doing things that are
against current practice’ will lead to winning Nobel Prizes. In my

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view, a good researcher is therefore contrarian and writes, as was

once said about Richard Posner, ‘not to defend, but to be accused’.
In Posner’s view, the doctrinal approach no longer meets the
requirement of originality: to fit new legislation and judicial deci-
sions into a doctrinal system comes, in his view, too close to legal
practice and is now ‘work for followers rather than leaders’, if it is
not ‘old-fashioned, passé, tired’. In my view, the problem lies not
so much in the doctrinal approach itself, which can also be crea-
tive, for example when it arranges the existing materials in a given
field anew (see also the examples given in no. 8 supra). Rather,
this type of research is derivative since it does not pose its own
questions but rather prefers to comment on decisions taken by the
authoritative institutions. Instead, the researcher should have his
own agenda (cf. Rubin 1988, 1883 and Vranken 2006, 115ff.).

51. Innovative Research: Many Types

Although the great importance of creative research has now

been established, the question of what exactly is creative must
still be addressed. In my view, research into law can be crea-
tive in many different ways. It would be wrong to consider one
type as being better than another. In an important article,
Mathias Siems recently showed many of the different ways
legal research can be considered to be original.

Siems (2008) provides an exuberant overview of what can be

defined as original research in law by categorizing it into four dif-
ferent types. First, micro-legal questions analyse a specific legal
problem that flows from, for example, a statute, a code or a court
decision. They can aim for a new analysis of an existing problem
or provide it with an original solution. The originality can thus lie
in different things: in finding coherence within the national legal
system from which the question arises (such as the ‘discovery’ of
the reliance principle in German law by Canaris: see supra, no. 8
and Hoeren 2001, 377ff.); or of the principle of proportionality
in European law (Van Gerven 1999), but also in showing how a
national solution relates to a foreign solution (as in comparative
law), or to a previously existing solution (as in legal history), or
how it fits a certain philosophical or economic view of law.

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 Organization of the legal-academic discourse 105

Legal questions can also be original in addressing issues at the

macro level (Siems 2008, 152): at this level, research is not about a
specific problem related to a statute or case but is concerned with
general concepts, problems and principles. Examples include,
but are not limited to: developing new philosophical foundations
of law (as in the work of John Rawls and Ronald Dworkin);
determining what is the province and method of legal science;
answering the question how European private law may best be
designed, and whether open-ended or specific norms are better
for legal development. Writing a new textbook on contract law
or on the law of criminal procedure in which the law is described
in a new and coherent way (or in which a lack of coherence is
demonstrated) is equally original.
The two other types of original legal research distinguished
by Siems (2008, 156ff.) are closer to other academic fields and
are therefore more often practised by non-lawyers. Empirical
Law and Economics (dealing with the effects of a legal rule on
social welfare) is an example of this, as is the previously discussed
work (no. 16) of Levitt & Donohue (2001) on the influence of the
legalization of abortion on crime. On the other hand, it is pos-
sible to research a more general theme, law being only one of the
factors taken into consideration. This is the case if one explains a
societal phenomenon, such as the factors contributing to a high
crime rate in a particular country, where the law is only one of
the factors being considered alongside other factors including,
but not limited to, the average level of education, income and
composition of the population.
It must be emphasized here that one type of innovative research
(such as analysis at the micro level) is not necessarily better
than another (such as empirical work). Universities and funding
organizations sometimes tend to refer to certain types of research
as having more quality than others when pursuing their own
managerial priorities but this is not entirely accurate or even fair:
there is nothing against individual law faculties or funding agen-
cies deliberately choosing to promote a certain type of research,
but they should not use the argument that only a certain type is of
sufficient quality. See also infra, no. 61.

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52. Is there Progress in Legal Science?

The next important question is whether creativity in legal

scholarship can also lead to progress. In the ‘hard’ disci-
plines, in which the significance of innovative research is
invariably emphasized, the standard view of science is that
the total amount of knowledge increases with new discoveries.
However, the picture of accumulating knowledge – implying
that the views of predecessors are rejected and replaced by
new insights in a sometimes revolutionary way – only seems
applicable to fields characterized by clear paradigms. Legal
science – at least in its normative variant – does not have
such a core of undisputed knowledge (and hence an idea of
what counts as progress compared to this core). As Thomas
Kuhn put it: contrary to a ‘normal’ scientist, a student of the
humanities is confronted with a variety of problems and ‘has
constantly before him a number of competing and incommen-
surable solutions to tackle these problems, solutions that he
must ultimately evaluate for himself’. This makes it difficult, if
not impossible, to judge if there is any progress in the sense of
the natural sciences.

See Kuhn (1970, 165). The idea of scientific progress (and, as a

consequence not only development, but also an improvement
of the law) is closely associated with the rational positivism of
the seventeenth century (see supra, no. 44), where new and better
knowledge can be obtained through empirical testing. However,
if empirical testing is impossible (as in legal science), we can no
longer speak of progress. Even if it is proclaimed, that particular
notion of progress will surely be scrutinized, if not contested. This
is also the conclusion Volney Gay (2009) reached when he sur-
veyed the question of progress in the humanities. His conclusion
is that science and the humanities are fundamentally different,
claiming that cultural objects can only be studied within their
context and that the only ‘progress’ that can be made consists of
giving new meanings to existing information.
On the absence of paradigms in the social sciences and humani-
ties (and about how progress in hard sciences has taken place by

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 Organization of the legal-academic discourse 107

way of revolutionary paradigm shifts), see Kuhn (1970). Once a

paradigm (as a universally recognized set of scientific achieve-
ments that provides model problems and solutions for a commu-
nity of researchers) has come into existence, all the rest is a matter
of solving puzzles. This explains why natural science puts so much
emphasis on formulating substantive research questions that are
subsequently ‘solved’ within the paradigmatic standard model of,
for example, physics (since the seventeenth century that model
has essentially been rational positivism). It follows that the most
interesting questions deal with the (in the Kuhnian sense) anoma-
lies that do not fit into the established paradigm. In such cases,
application of existing methods does not lead to a solution (as
substantiated by the present debate among physicists over string
theory). This is an important insight because legal academics
and representatives of other disciplines sometimes talk at cross-
purposes when discussing the role of method: see infra, no. 54.

Better than the term ‘progress’ – implying that out-dated

insights have definitely been left behind – the neutral term
‘evolution’ reflects how development in legal science takes
place. Changes happen in a process of competition in which
only the useful arguments (or concepts or rules) survive.
However, it is essential to normative legal science that legal
institutions never become fully extinct: an argument, concept
or rule that was useful in the past can become important again
in the future, much like the way figurative artists made a come
back following the first tide of abstract painters.

The evolutionary approach was explained supra, no. 27. This also
means that any falsification of legal rules is not possible: if law
is characterized as the discipline of conflicting arguments (see
Chapter III above), the validity of these arguments cannot be
refuted by courts or legislatures. The only possible conclusion is
that a certain argument fits a given normative setting (such as a
national jurisdiction) better, where better means that it is more
strongly conducive to satisfying a goal that is external to the law
(such as efficiency) or that it has more explanatory power (as the
term ‘legal act’ may be useful in denoting a number of common
effects of the different legal phenomena of a contract, a testament

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 108 The mind and method of the legal academic

and the giving of notice). It is important to realize in this regard

that Popper never applied the idea of falsification to the law or
morals (Wendt 2008, 64); see also Ulen (2002, 9) and Jansen
(2005, 772). What is more: falsification is not only impossible in
law, it is also unnecessary. Whilst, in the empirical disciplines,
only non-falsified hypotheses produce real knowledge, the jurist
knows that the legal materials are never silent: one can always
find arguments for and against a certain solution.

The non-cumulative character of legal science has yet another

consequence. In disciplines that build upon existing know-
ledge, it is usually not very difficult to identify the questions
that are still open. A first year student of mathematics or
astronomy, for example, can immediately list several problems
that his discipline is wrestling with that, at some point in time,
could be ‘solved’. Normative legal scholarship is fundamen-
tally different. First, the law does not have any unsolvable
questions because the existing materials always allow at least
some solution. But more importantly, the accuracy of this
solution can be continuously subjected to debate and scrutiny.
Innovations in legal science, therefore, are produced through
the weighing of different arguments from varying perspectives.

Mathematics offers an example of an (at least until recently)

unsolved problem: the proof of the so-called Poincaré conjecture
(formulated in 1904): ‘Anything that looks spherical, is spherical’,
or ‘every simply connected, closed 3-manifold is homeomorphic
to the 3-sphere’. In 2002, the eccentric Russian mathematician
Grisja Perelman proved the conjecture and promptly received
the Fields Medal (see infra, no. 60), which he just as promptly
declined to accept. Such a discovery is inconceivable in law: at
best, an argument that was used in the past prevails under new
circumstances or in a changed society. Although these arguments
can also come from other disciplines outside the legal field, as was
previously noted (see supra, no. 37), how exactly particular non-
legal knowledge is important in answering the normative question
should always be detailed fully.
This does not of course suggest that legal researchers should
not explicitly specify how new research relates to what was done

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 Organization of the legal-academic discourse 109

in the past. Legal academics at universities too often reproduce

only what others did before them. It is important for them to
make explicit what new insights follow from their research.

3. LEGAL SCIENCE AND METHODOLOGY

53. Introduction

Much attention has been paid recently to the research methods

used by legal academics. This interest is partly caused by
intellectual curiosity (‘What do we do as legal scholars and,
in particular, how do we do it?’), but it is partly prompted
by practical purposes as well. The logic behind the practical
reasons is as follows: practitioners of other disciplines can,
more often than not, indicate precisely which method(s) they
use in doing research, unlike legal academics, who too often
continue to refrain from doing so at the risk of losing money
and prestige in the battle among disciplines.
Increased attention to the methodology of legal science can be
seen in various countries. See, for Germany, Engel & Schön
(2007) and Bernhart (2008), for the UK, McCrudden (2006), and
for the Netherlands, Van Gestel & Vranken (2011, 925ff.) and
Vranken (2006, 94): ‘What is the subject of the research, and why?
How does it relate to existing research? (. . .) What are the best
methods to conduct the research?’ See also Van Hoecke (2011). In
the United States, Epstein & King (2002, 11) advanced a similar
plea, though the scope of their conclusion was limited to the situ-
ation in which jurists do empirical research: ‘The law is important
enough to have a subfield devoted to methodological concerns,
as does almost every other discipline that conducts empirical
research.’ Cf. Rhode (2002).
Particularly in the eyes of other disciplines’ representatives,
legal academics often make use of an unclear methodology. This
becomes apparent in assessing research proposals by funding
organizations such as the Deutsche Forschungsgemeinschaft
(DFG), the UK’s Economic and Social Research Council
(ESRC) and Arts and Humanities Research Council (AHRC),

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 110 The mind and method of the legal academic

and the Dutch Nederlandse Organisatie voor Wetenschappelijk

Onderzoek (NWO). All these funding organizations (like also the
Directorate for Social, Behavioural & Economic Sciences (SBE)
of the US National Science Foundation) increasingly assess pro-
posals for research grants in interdisciplinary panels that consist
not only of jurists, but also of economists, psychologists and
other academics. In the Dutch situation, the assessment is indeed
taking place at an increasingly high level. Before 1995, law had
its own panel within the division of the social sciences but, since
then, the barriers that separated the academic fields into various
divisions have been levelled. The aim was explicitly to unify the
assessment procedure, to refrain from adhering to mechanisms
that protected certain fields, and to stimulate interdisciplinary
work. The result is that jurists now have to compete with not
only economists and psychologists, but also with sociologists,
anthropologists and colleagues working in political science and
management studies. Although there are clear advantages to
breaking down these disciplinary walls, the problem persists that
lawyers have a hard time convincing colleagues in other fields of
the soundness of their methodology.

The first question addressed in this section is whether the use

of clear research methods can have the same effect in law that
it has in the empirical disciplines and, if not, what alternatives
exist (no. 54). Subsequently, a plea is made for a better justifi-
cation of choices made in legal research (no. 55), but also for
putting into perspective the importance of an explicit research
question (no. 56), as well as for a methodological pluralism,
which states that one method is not, in and of itself, better
than another (no. 57). The development that disciplines such
as economics and psychology have endured will illustrate why
any other view regarding this matter is a mere delusion.

54. Research Methods and Law

If a method is a way to achieve a predetermined goal, then a

research method is a way to provide rules on how to conduct
research: it indicates how knowledge is to be acquired in order

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 Organization of the legal-academic discourse 111

to answer a question. This implies that a research method

presupposes two things: there must be a question that deserves
to be answered; and the answer to this question will only be
viewed as reliable if a particular method has been followed. To
‘coincidentally’ find the right answer does not suffice: the steps
taken to reach the result must be verifiable to others. If this
requirement of a verifiable method is taken seriously in legal
scholarship, it means that only knowledge obtained through
this method can be recognized as viable.

A method in the sense of generally accepted rules to achieve

academic knowledge about the law must be distinguished from
several other legal ‘methods’. Thus, a method of ‘legal thinking’ is
often mentioned (see Mastronardi 2001, Schauer 2009 and supra,
no. 28), or similarly methods of finding the law (Rechtsfindung:
the heuristics of legal reasoning) or of legitimating a decision. If
(as is claimed in a still influential view) the activities of the legal
scholar do not fundamentally differ from those of the judge,
these methods of finding and legitimating the law are also to be
seen as scholarly methods (thus e.g. Larenz 1991, 6ff.). Finally,
there are the more practical methods (‘skills’), such as how to
find legislation, case law and literature and how to argue, cite
sources and interpret legislative texts (on which, for example, in
Germany Tettinger & Mann 2009, in France Bonnet 2006 and in
the Netherlands IJzermans & Van Schaaijk 2007).

How far is legal scholarship also subject to this methodologi-

cal requirement? This question can be justified because the idea
that knowledge acquired by using a scientific method is more
reliable than knowledge that is not, stems from the empirical
disciplines. In the empirical disciplines, it is usually assumed
that the results of a research must be verifiable and even rep-
licable in order to disprove any notion that observation of the
facts could lead to falsification or data tampering. There is
even more reason to ask whether the legal discipline ought to
be subject to a strict methodology in view of the fact that strict
methodological requirements do not usually have to be met in
the humanities and are, at least, disputed in the social sciences.

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For Popper (2002) the qualification of an academic field as science

is dependent on whether the method of falsification can lead to
collecting knowledge. The use of this particular method is thus
a criterion of demarcation: it allows us to distinguish between
scientific (usually empirical) and other knowledge. This does not
mean that in Popper’s view, knowledge cannot be obtained in
any other way, only that it is then not found by way of falsifica-
tion. In several continental European countries, including the
Netherlands, this view became influential outside the natural
sciences through the work of Adriaan de Groot, whose book
on the methodology of behavioural sciences in 1969 influenced
generations of psychologists, sociologists, and others. De Groot
emphasizes the importance of a rational scientific model in which
the researcher must always formulate his views by way of testable
hypotheses. He must subsequently test these in what he calls the
‘empirical cycle’: a research starts with the observation of empiri-
cal facts and a formulation of hypotheses, followed by empirical
testing and evaluation of their theoretical validity. See on the
methodology of the non-empirical disciplines also John & McIver
Lopes (2004) and Leezenberg & De Vries (2001, 83).

In my view, the function of a method in normative legal schol-

arship cannot be the same as in the empirical disciplines. The
latter use a method to ban all uncertainty: precisely because
a certain method was followed, there can no longer be any
doubt about the accuracy of the outcome. Anyone else fol-
lowing the same method will have to reach the same result.
This is fundamentally different in normative legal scholarship:
the use of any method will not banish doubt, instead – as was
elaborately argued in Chapter III – it will lead to a new discus-
sion. Put differently, the use of a particular method will not
make the answer to normative questions more ‘academic’ and
knowledge that is acquired by way of a certain method is not
for this reason less disputed.
This does not mean that it is impossible to acquire objec-
tive or reliable knowledge in the legal discipline. It means,
however, that knowledge is acquired in another way that is
not strictly prescribed by research methods: the legal discipline

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 Organization of the legal-academic discourse 113

is primarily a practice, in which the community of academic

colleagues (the forum) decides on what is to be seen as reliable
knowledge.

Knowledge can come about either because it was reached through

some defined method, or because it is recognized in academic
practice (cf. infra, no. 21). Together with many of the humanities
and social sciences, normative legal scholarship can be seen as
such a practice. Knowledge that is obtained within these fields
is not inferior to empirical knowledge – it is only a different
type of knowledge. This point is also made by Joseph William
Singer (2009) when he tells us that normative argument need not
be airtight to make it valuable. The prominent German author
Karl Larenz (1991, 6–7) similarly shows that the objectivity of
legal scholarship lies in its ability ‘to further develop the existing
value judgments, to make these explicit, and to relate any new
value judgments that have to be made within certain limits to the
existing ones’. The constraint here is that one cannot achieve the
‘degree of certainty and preciseness as in mathematics or as in
performing a physical experiment’.
The community of scholars deciding what is to be seen as objec-
tive knowledge (so-called ‘disciplinary objectivity’) is one of the
‘cultures of objectivity’ distinguished by Porter (1995, 3 ff.). This
idea of a forum means that any insights must be part of a continu-
ous discussion: even though the ‘truth’ of an insight cannot be
established and there is, at best, consensus among academics that
it is the right one – in much the same way as with the paradigms of
Thomas Kuhn. The consensus must of course exist as to a certain
view being defensible, but not that it is the only possible view. For
example, Backhouse (1997, 41) considers an idea to be decisive
if it was first proposed in an article, was subsequently discussed
by others and is eventually mentioned in a textbook. This makes
any academic discipline a ‘self-correcting’ process (Leezenberg &
De Vries 2001, 17). See also Patterson (2001), emphasizing that
what is considered objective and marked as reliable is completely
dependent on the field in question.

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 114 The mind and method of the legal academic

55. Making Choices Explicit

In the previous section, reservations were expressed about the

importance of clearly defined methods in doing normative
legal research. This is not to suggest that it is useless for legal
researchers to state the exact topic of their research explicitly
(the ‘research question’), why it takes place (the ‘aim’) and
how the researcher approaches the theme (the ‘method’). This
follows from the need in any academic field to present research
in a transparent and fair way, thus adding to the reliability and
quality of the research results: in any writing about the law,
choices are made and in so far as these are not self-evident to
the academic community, making these choices explicit will
help the researcher and its audience in making clear what the
research is about.

Discussion about the methodology of legal research is often

framed as a matter of quality: more attention to formulating
a precise research question and an accompanying method to
answer it, would lead to better research. However, as evidenced
infra, no. 54, methodology is here characterized unjustifiably as
having the same role that it has in the empirical sciences where
methodology has the potential to distinguish between reliable
and unreliable knowledge. Apart from that, this view suffers from
the same problem of which methodologists have often accused
legal scholars: a lack of empirical basis. It is difficult to establish
empirically that research not based on a clear methodological
foundation is of less quality than research based on a sound
methodology. It seems, in any event, that today’s legal academic
community does not judge the quality of academic work in terms
of the use of a clear research method, but places much more
emphasis on peer review, favourable book reviews or the reputa-
tion of the author. See, for a similar view, the reactions to Epstein
& King (2002) in the special issue of the University of Chicago
Law Review 2002, no. 1.

Legal research is insufficiently explicit particularly when it

comes to the discussion of how to evaluate a judicial decision

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 Organization of the legal-academic discourse 115

or a piece of legislation. This assessment is often not based on

the legal system itself (where the most important criterion is
the way in which one element connects to the other elements
of the system), but on some legal criterion that is difficult to
measure (‘the legal certainty’, ‘social justice’, and so on) or
even on a criterion that is based outside the law (‘the interests
of business parties’, ‘what works?’). It is then necessary to
make explicit what this criterion precisely requires.

Similar views are expressed by Posner (2000, 69), Vranken (2006,

94 ff.) and Tijssen (2009, 75). The latter mentions, in this context,
the importance of a framework of assessment. One could also
wish that legal scholars were more careful when making state-
ments about the effects of changes in the law, such as: the alleged
drop in crime as a result of abortion legalization (see infra, no. 16);
the increase in false confessions through the use of certain inter-
rogation techniques; or about delays in civil procedure caused by
changes in procedural law.
Epstein & King (2002, 38) are particularly critical of this type
of ‘empirical’ research by academic lawyers. Their most impor-
tant criticism is that the requirement of replicability is almost
never met: ‘Another researcher should be able to understand,
evaluate, build on, and reproduce the research without any
additional information from the author (. . .). Unfortunately, the
present state of legal scholarship nearly always fails this most
basic of tests.’ To Epstein and King (who are both political
scientists) the individuality of the researcher is completely irrel-
evant: ‘sentences that begin “I think” or “I believe” are beside
the point’ (p. 45). However, in the empirical-normative approach
advocated above (no. 39), the confrontation with empirical data
can take place in a much more liberal way. These data are not
used to discover the truth but are arguments that have already
been tested in the practice of an existing jurisdiction. See also
Shapin (2008, 6) on the idea of the ‘invisible scientist’ as argued
by Epstein & King.

Traditional doctrinal research can also benefit from a better

clarification of the questions it seeks to answer. The goal of
this type of research is usually to mould new legislation and

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 116 The mind and method of the legal academic

judicial decisions in the legal system, or to create a whole new

system by categorizing the existing materials in a different
way. However, these seemingly routine activities also require
many choices to be made, such as over which materials are to
be used (only those produced by the national authorities, or
also European and foreign legislation and case law, or even
private regulation), and how these are to be systematized.

This is because systematization is possible in different ways, as

exemplified by the various approaches of Von Savigny (1840–1848
[1979]), Larenz (1991, 474ff.), Canaris (1983) and MacCormick
(1978). In addition, the question of how to determine internal
consistency within the legal system deserves some explication in
this type of work.
It is important to emphasize that the goal of the research need
not lie in solving a societal problem or in better understanding
society. The consequence of this would be that law could only be
studied as an instrument and not as an autonomous system (as
is indeed suggested by Epstein & King 2002, 60). Tijssen (2009,
74ff.) rightly states that the framework of assessment can also
consist of the legal system itself, such as when new materials are
fitted into this system.

56. A Need for an Explicit Research Question?

Of course, the aforementioned conclusion does not suggest

that a ‘research problem’ always needs to be rigidly desig-
nated, nor does it mean that it must follow an equally rigid
description of its methods. As is also the case with good
research in the humanities and social sciences, legal research
often has rhetorical power: if the ‘creative jurist’ believes that
his research cannot be presented after the model of the empiri-
cal disciplines, this is completely legitimate.
The most important reason why an explicit formulation of a
problem should not be overvalued lies in the fact that the non-
empirical disciplines do not test hypotheses. The humanities
and the law are more often concerned with – in the wording
of Ferdinand Feldbrugge – ‘the investigation of a broader

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field, where, at least initially, no specific questions are asked,

but a wider range of phenomena is observed and described.
This procedure may then yield various alternative avenues
for further research (. . .). The researcher is like a nineteenth
century explorer who enters an area which is still blank on the
available maps. He does not really know what he is looking
for.’

See Feldbrugge (2003, vii). He explains how, when he started

working on his book, The Law’s Beginnings, a clear-cut theme
was missing. Initially, his interest was in doing ‘something’ with
‘early law’, dealing with issues such as: ‘What happens during
the phase of legal development in which law divests itself of its
close relationship with other aspects of social life?’ ‘What are the
conditions under which the law ‘begins’ to exist?’ ‘Are there paral-
lels between archaic jurisdictions in India, Greece, Italy, Ireland,
Friesland, Russia and Mesopotamia?’ In other words, the exact
question of the research only became clear after the research was
done.
The research that is seen as important by the academic com-
munity often follows the road laid out by Feldbrugge. Thus,
such diverse works as John Rawls’ A Theory of Justice (1999),
Johannes Köndgen’s Selbstbindung ohne Vertrag (1981) and
Reinhard Zimmermann’s The Law of Obligations (1990) do not
have a clear research question. Ronald Coase’s The Problem of
Social Cost (1960), one of the most influential works in the field
of Law and Economics, also does not pose a clear question: it
merely describes at the outset what the article is about in the way
promoted by Feldbrugge.

This does not mean that once the research is finalized, a

research question can no longer be formulated. It does mean,
however, that this can only be a justification afterwards of
what the creative researcher – by reading, writing, reflect-
ing and discussing – did, in fact. The research question, the
sources to be used and the research theme form a trinity
and, together, they are in constant development during the
research. Of course, formulating a research question can be a
useful tool, forcing the researcher to a first demarcation of the

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research theme. In many cases, putting the argument in the

form of a question that is then subsequently answered can also
have rhetorical power. But this is not the recipe for creative or
high-quality research.

Leezenberg & De Vries (2001, 66) point out that the scheme of
research question and method is only a ‘reconstruction’ of the
research process by rational positivists and is unjustifiably seen as
a recipe for the design of good research. This overlooks the fact
that such schemes only deal with the justification of knowledge
and not with its acquisition: requirements in the context of justi-
fication are not to be confused with requirements in the context
of discovery. Put differently, if one is able to formulate a research
question in the way prescribed by methodologists, it is likely
that one already knows the answer. Carrying out research in this
way may not give much pleasure; see for other objections also
Backhouse (1997, 8ff.). The experience of any good researcher is
that creative research (on the importance of which supra, no. 50)
is often dictated by coincidental ‘discoveries’, done in libraries
(and often not by looking into the books and journals that are
directly related to the theme), on the internet, or flowing from
discussions with colleagues (also from other disciplines) or stu-
dents. The importance of browsing also condemns the complete
replacement of ‘paper’ law journals to its electronic counterpart
(cf. infra, no. 59).
Important discoveries in natural science often do not rise
out of previously formulated hypotheses. This is certainly true
for paradigm shifts (Kuhn 1970; Newton did not build upon
Aristotle’s Physics), but also for less revolutionary finds. Much
more often, something is ‘observed’ by a trained academic
who does not know precisely what he is looking for, but who
– thanks to his ‘practical wisdom’ – sees how progress can be
made. Leeuwenhoek did not discover the microscope because
he was looking for it, and Gregory House MD does not make
the right diagnosis because he follows some medical protocol.
The good researcher must have space for what is sometimes
called ‘informed messing around’ or ‘unguided play’: he must
be allowed the freedom to fiddle around and see in the same
materials what somebody else did not see.

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57. Methodological Pluralism

Having read the considerations above, it will not come as

a surprise that legal science can make use of many different
methods and that one method is not necessarily better than the
other. Which method must be used is completely dependent
on the aim of the research. If one aims to fit existing materials
into the legal system, one would have to make use of another
method than if one intended to build up a new system. And
someone interested in interpreting a judicial decision will
go about answering this question in a different way from
someone who wants to investigate the effects of the decision
on the behaviour of individuals.

As indicated above (no. 55), it is fair for a critic or a reader of

academic work to expect a full disclosure of the method used.
This is a matter of transparency and, for similar reasons, a legal
academic should not only state the arguments in favour of his
position but also the arguments against it. In addition to this, the
legal academic should be independent (that is, he does not have
a professional, financial or private interest in arguing in a certain
way) and be accurate in referring to his sources.

How important it is to preserve this pluralism of methods –

hence not to completely trade in the legal methods for those of
other disciplines – is proven by the development that econom-
ics and psychology have gone through in the last half-century.
Both fields (or at least those parts that are seen as the most
prestigious) now rely heavily on empirical and mathematical
methods.

In the last fifty years, there has been a keen methodological battle
in both disciplines. This led to a much debated victory of the
mathematical method in economics (cf. Debreu 1991) and to an
emphasis on cognitive models in psychology. What Nobel Prize
winner, George Stigler, noted back in 1963 (1ff.) with regard to
the dominance of the mathematical method in economics is rep-
resentative of how many economists see this development: ‘The

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age of quantification is now full upon us. We are now armed with
a bulging arsenal of techniques of quantitative analysis, and of a
power – as compared to untrained common sense – comparable
to the displacement of archery by cannon. (. . .) It is a scientific
revolution of the first magnitude (. . .) I am convinced that eco-
nomics is finally at the threshold of its golden age (. . .).’ See on
this Backhouse (1997) and Morgan (2003).
The field of psychology has, in the last 50 years, also turned
from a theoretical discipline into an empirical one, with a
stronger association with the natural sciences. The well-known
Dutch psychologist Hans Crombag (2006) illustrates how the
study of psychology dealt with the psyche until well into the
1960s and was more about studying emotions than about hard
facts. A human’s personality was supposed to consist of several
layers of depth (the Schichtentheorie or strata theory), including
the Lebensgrund (existence-related drives), endothymer Grund
(endothymic ground) and personeller Oberbau. The aim was to
find the location of emotions in each of these layers, a type of
research that took place by having people fill in questionnaires.
The revolution came with the behaviourism of B.F. Skinner: the
only thing to be trusted is the observable and anything that people
say about their motives must be distrusted.
Both in economics and in psychology this shift led to a situation
in which the object of study is more and more limited to things
that can be modelled (as in economics) or for which empirical
proof can be provided (as in psychology). Research that did not
make use of these methods became less prestigious in the view of
the majority. See Ash (2003, 260) and Porter (1995, 17): ‘Among
psychologists, it is the weaker students who specialize in the more
humane branches: those with lower seconds (. . .).’

I mention the examples of economics and psychology because

it would be a rather unattractive prospect if legal science were
to develop in the same direction. Legal scholarship should
vehemently avoid emulating the methods of these other disci-
plines. Following in their footsteps can only lead to a situation
in which the battle with the other disciplines is lost. Instead,
the legal discipline should focus on its strengths. This is where
the empirical sciences are weak, namely in reflecting on what

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people should do as a matter of law in our society and in offer-

ing a method to determine this. Clifford Geertz generalizes this
point in the following way: ‘The quests for general, abstract,
situationally unconditioned theory, for precise predictability,
and for universally applicable, “objectivist” method are mis-
placed in research designed to discover why it is that human
beings think, feel, and act as they do. To discover how we
learn, how we relate to one another, how we understand what
happens to us, demands something more, or something other,
than the size-up-and-solve mentality of the soi-disant “hard
sciences”.’

Geertz (2001). See also Porter (1995, 5): quantification ‘simply

evades the deep and important issues’ and makes the discipline
poorer than it was before. The plea of Bent Flyvbjerg for a turn
in the social sciences is repeated here for the legal discipline.
Flyvbjerg (2001) emphasizes that scientists will most certainly lose
the debate about the importance of their discipline if they are led
by the model of the natural sciences. They should underline instead
what is their unique contribution to knowledge about humans;
see also supra, no. 44. This is also an important public debate: in
the German Frankfurter Allgemeine Zeitung of 14 June 2009, 83
professors of economics published a cry of distress that univer-
sity chairs for economics are increasingly occupied by econom-
etricians and mathematical economists without much interest in
questions of policy relevant to the German or European economy.
In response, 188 other university academics riposted and claimed
that the first group apparently wanted to embark upon a German
Sonderweg in the very international discipline of economics, and
sacrifice academic excellence for policy-oriented work.
Deirdre McKloskey (1983) points out that, although econo-
mists formally pay lip service to the use of hard methods, they
do in the end make use of more traditional argumentative tech-
niques. The knowledge that is obtained from the more prestig-
ious methods does not suffice to answer many of the relevant
questions.

It may be important to emphasize that I am also a proponent

of using empirical methods in legal scholarship to a greater

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 122 The mind and method of the legal academic

extent than is the case at present: this will lead to stimulating

and creative research. However, this type of work is particu-
larly useful when trying to answer a certain type of questions
within the legal discipline. I argue strongly against the notion
that knowledge acquired by making use of empirical methods
is more trustworthy, or simply better, than insights provided
by more traditional methods of research.
It is problematic that some academics – in particular those prac-
tising the empirical sciences – regard only one method (that is to
say their own) as a universal panacea. Thus, the famous American
biologist, Edward O. Wilson (1998), claims that the existing rift
between the natural sciences, on the one hand, and the humanities
and social sciences, on the other, must be bridged sooner rather
than later. However, in the synthesis he proposes, the methods
of the natural sciences (directed towards physical perception) are
dominant. See, for criticism of Wilson’s reductionist view of the
unity of knowledge, Stephen Jay Gould (2003). It is surprising
to find that, more than 250 years after Hume’s statement (1748
[1975, 165]) about knowledge – ‘Does it contain any abstract rea-
soning concerning quantity or number? No. Does it contain any
experimental reasoning concerning matter of fact and existence?
No. Commit it then to the flames: for it can contain nothing but
sophistry and illusion’ – this reductionism is still so influential. It
seems safe to conclude that pushing the idea of empirical methods
as offering the only ‘real’ knowledge has proven to be a highly
successful strategy in the fight for money and prestige. This can
also explain why natural scientists are usually over-represented
in awarding prestigious national research prizes (such as the
German Leibniz Prize and the Dutch Spinoza Prize).

4. THE RESEARCH CULTURE IN LEGAL

ACADEMIA

58. Introduction

This section examines the research culture in legal academia,

which is a topic that is just as important for a fertile legal

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 Organization of the legal-academic discourse 123

discourse as the requirements that research must be innova-

tive (Section 2) and explicit about its aim and methodology
(Section 3). The concern here is to organize research (and
teaching) in such a way that it is conducive to the needs of
the academic community. This concern determines which
perspective is adopted: it is not how to make research as
‘manageable’ and controllable as possible for policymakers,
but how to design the university in such a way that it satis-
fies the needs of academics themselves. To this end, attention
is successively paid in this section to research programmes
(no. 59), to the importance of fundamental research, and to
the question whether today’s market-driven forces curtail
these aims (no. 60). This is followed by a sketch of an alterna-
tive approach or at least its contours (no. 61). The final section
is devoted to legal education (no. 62).

Some readers will possibly consider what follows as striving for

a hopelessly old-fashioned and romantic ideal of research and
teaching. Perhaps forty years ago, it would have even been con-
sidered a cliché. However, I am of the opinion that it would be
good to re-establish a number of the old ideals in doing academic
work – although not as old as it might seem, namely developed
in the beginning of the nineteenth century by Alexander Von
Humboldt. This is certainly not a plea for a return to past times,
but it is a call for a re-evaluation of some essential university
values that have come dangerously close to being overlooked,
much to the peril of the universities themselves. I am not alone in
expressing this concern: see, in general, Brown (2011) and, more
specifically, Dilger (2011) for Germany, Van Oostrom (2007) and
Lorenz (2008) for the Netherlands, and Bok (2004) for the United
States.

59. Research Programmes

Law was defined in Chapter III as the discipline of conflicting

arguments about what ought to be. This view not only leads
to the substantive consequences for the character of law that
have already been described, but it also means something for

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 124 The mind and method of the legal academic

the way in which universities should organize their research.

The argumentative character of legal science makes it able to
profit from debate. Moreover, the emphasis on the importance
of creativity (see supra, no. 50) means that university policy
makers have to stimulate this to the greatest extent possi-
ble. Finally, an important task of universities is to train new
researchers. In my view, debate, creativity and training are
best stimulated by organizing research in the form of research
groups that carry out a joint ‘research programme’. Each of
these aspects is discussed below.

Research can be organized in different ways. The standard

method in many fields throughout the world is to establish coher-
ent sets of research activities having a common mission and
tasking groups of people who generally work together on a daily
basis to carry out these activities. The phenomenon comes from
natural sciences, where group work became necessary for finan-
cial and practical reasons, and it was no longer possible to carry
out experiments on an individual basis. This was (and still is) par-
ticularly true where expensive infrastructure is needed, as exem-
plified by the European ‘Very Large Telescope’ (VLT) in Chile or
the Large Hadron Collider of CERN in Geneva, involving 7000
researchers from 80 countries.
Organizing legal research by way of programmes has also
become the standard in various European countries. Thus, in
the Netherlands, almost all research carried out at universities
is categorized under programmes at the level of departments,
institutes, faculties or (often inter-faculty) research schools. In
the last national research assessment in 2009, 59 different pro-
grammes in law were evaluated. And even though many of these
programmes were originally set up as a result of external pressure
(research programming in the Netherlands is often seen as neces-
sary to obtain funding), there are good substantive reasons why
like-minded researchers should work together.

The first advantage of working within a research group is that

it stimulates academic discussion. Necessary components to
fostering a good research culture are an environment where
people can freely express ideas, are contradicted by others, are

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inspired by their colleagues’ work and can thus enhance the

quality of their own work by way of debate. The American
sociologist Robert K. Merton spoke of this as a ‘serendipi-
tous microenvironment’. The creation of such a stimulating
research culture is an essential responsibility of any university.

See Merton & Barber (2006, 262). Legal science traditionally has
an individualist research tradition, but this has taken a turn for
the better in the last decade or so. The idea that the quality of
research is improved if it is done within ‘a community of gifted
people working intimately but independently, with each free to
follow his own mind’ (thus, James B. Fisk, former President of
Bell Labs: Shapin 2008, 190) is by now widely accepted: schol-
ars are expected to draw out objections to their drafts and to
comment themselves on the drafts of colleagues. This form of
informal peer review is perhaps the most important form of
quality control one can think of.
The inspiration one can draw from the group is of course
strongly dependent on its design. As the Dutch physicist, Ad
Lagendijk (1997) has written: ‘A professor, a single postdoc
and a few PhD-researchers that I see on a daily basis (.  .  .).
Terrific research can thrive in a small group apart from the rest.’
Interdisciplinary research can be promoted by encouraging repre-
sentatives of different disciplines to work together in one group.
This is by no means an easy task and the results may lead only
to multi-disciplinary insights, meaning that a given problem is
approached from different angles without any further integra-
tion. Another worthwhile issue for drawing inspiration is the
location of meetings. The participants in these groups will surely
require access to books and journals, preferably located in open
stacks. Having a central location in a common room, where
there is a constant stream of visitors could be beneficial to the
group as well (cf. infra, no. 56). The Leiden-based Lorentz Centre
(for astronomy, mathematics and physics) is in this respect an
inspiring example.

Secondly, it must be emphasized that the wider framework

of a research group can offer a fertile breeding ground for
individual creativity. This may be doubted by those who

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see research programmes only as an obstacle to good legal

research because they believe that real advances are always
made by individuals. However, any good research group does
not curtail creativity, but stimulates it. This objection drills
us in what must be the purpose of research programming: to
facilitate an individual researcher’s quest for understanding a
theme he is fascinated by, and not a straitjacket allowing only
a certain type of work.

Ipsen (2005, 427), for example, is critical of research program-

ming and of cooperation among researchers: ‘Wesentliche
Fortschritte im rechtswissenschaftlichen Diskurs werden (.  .  .)
durch Monographien erzielt.’ (‘Real progress in legal discourse
is made through monographs.’) I largely agree but do not see
a contradiction here: cooperation should not stand in the way
of individual fervour. However, it is safe to say that individual
researchers will remain the driving force in pushing legal science
forward.
To be fair, in addressing this criticism of research programmes,
I will concede, based on my own experiences, that programming
sometimes can be restrictive. This is primarily caused by the inter-
est of the research director or programme leader in presenting
a coherent output to assessment committees – thus stimulating
colleagues to publish as much as possible within the narrow
boundaries of the programme. This is why, in my view, assess-
ment committees should attach less importance to the programme
description (the ‘plans’) and more to the realized publications,
which should of course still give evidence of some coherence.
This argues for brief programme descriptions indicating the field
of research, the methods to be used and the type of publication
aimed at, without curtailing individual creativity.
An alternative, is not to assess research programmes by them-
selves, but to assess the output of the faculty as a whole, based
on the individual publications of its members. The often-heard
objection that this would be logistically impossible is belied
by the experience in the United Kingdom, where the Research
Assessment Exercise has been organized in this way since 1992
(cf. <www.rae.ac.uk>). This does more justice to the reality that
the quality of legal research is ultimately dependent on individual

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achievements. To assume that assessing a programme would say

anything about the quality of its individual members presupposes
a different type of exercise of scholarly activities than is usually
the case in legal science. At American law schools research pro-
grammes are almost entirely absent.

Thirdly, a research group offers the ideal environment for

young (PhD) researchers, where they are trained and looked
after by their senior colleagues and can share their experiences
with other young colleagues.

Several European countries have in the last decade set up ‘gradu-

ate schools’ for their PhD researchers (unlike the American
model, these schools do not include master students). Graduate
schools (either at the university or faculty level) usually offer
courses and carry formal responsibility for the well-being of the
doctoral students. They potentially have the big advantage that
they can fight parochialism by bringing together researchers
from different fields. In the Netherlands, several law faculties
have chosen a different model: they work together in so-called
‘research schools’, sometimes even having common research
programmes of three or four different law faculties. In particular
the Ius Commune Research School (<www.iuscommune.eu>),
which was founded in 1995, has proved to be successful: it unites
a large part of the PhD researchers and senior staff members in
the Netherlands who work in the fields of European private law,
European constitutional law, and comparative law. However,
more important than these large networks, is the micro-climate of
the direct working environment (see above).

60. The Market and the Importance of Fundamental Research

Yet another essential aspect of the research culture in legal

academia is that the culture is supposed to stimulate creative
and fundamental research. The responsibility of the univer-
sity does not primarily lie with offering services to society
or with doing research that is of immediate relevance to the
general public, but with a search for fundamental knowl-
edge. Although this Humboldtian ideal is widely accepted by

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 128 The mind and method of the legal academic

universities and funding organizations throughout the world,

it is under threat – as it has always been.

The primary motivation of any academic researcher must be

his personal passion for doing scholarly work. This means that
the university should cherish the individuality and headstrong
character of the good researcher: innovation always comes from
the margins and what counts in the end is the academic output.
Gifted academics must therefore be able to pursue their own
research agenda. This is also the case because it is difficult to
say in advance what is the best thing to do to make progress (cf.
Vranken 2006, 30).
It is therefore highly positive that funding organizations increas-
ingly grant money on the basis of individual merit. This can be
seen in the personal prizes created by national funding organiza-
tions (such as the German Leibniz Prize and the Dutch Spinoza
Prize as well as Innovational Research Incentives Schemes), but
also in the Starting grants and Advanced grants established by the
European Research Council in 2007. However, it takes more than
this to foster a research culture with a focus on stimulating crea-
tivity. Here, one can make great progress by taking small steps.
Thus, the culture of (international) academic prizes for legal
research is relatively undeveloped. Mathematics and economics
each have their own prize for the best researcher under forty,
namely the Fields Medal (awarded since 1936) and the John Bates
Clark Medal (established in 1947). These examples are worth fol-
lowing. Individual law faculties can also create prize contests for
advanced students (which also happens to be an excellent way to
recruit PhD-researchers). This is in line with the largely accepted
insight that these types of symbolic rewards are better at enhanc-
ing intrinsic motivation than financial incentives (cf. Osterloh &
Frey 2010 and infra).

The biggest threat to fundamental and creative research is

the strong increase in market efficiency at universities. This
phenomenon can be observed in many countries. At its core,
is the creation of an atmosphere of distrust towards academ-
ics, and a belief in control and accountability to guarantee a
higher quality of research. This is why a group of prestigious

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European universities recently sounded the tocsin about this

development and made a plea for valuing precisely those ele-
ments of academic research that are not manageable, such as
creativity and serendipity. Their warning is against the fallacy
of management in removing things if they cannot be managed
or they make management more difficult.

This call (Boulton & Lucas 2008) was made by the League
of European Research Universities (LERU) that includes, for
example, the universities of Oxford, Cambridge, Munich, Helsinki
and Leiden. Their challenge to market-driven targets that turn
universities into providers of valorized knowledge and jeopard-
ize their fundamental mission is mirrored in the pleas made by
prominent academics, including the former President of Harvard
University, Derek Bok (2004), and the former President of the
Royal Netherlands Academy of Arts and Sciences, Frits van
Oostrom (2006). They both warn of a climate in which to ‘score’
in the short term is sometimes seen as being more important than
to do fundamental and curiosity-driven research. Van Oostrom
describes how departments increasingly function as counters for
all kinds of subsidies caused by the lack of backbone in academics
and their administrators. The theme is further explored by Pels
(2003), Lorenz (2008) – under the illuminating title, If you’re So
Smart, Why aren’t you Rich? – and Regini (2011).

The basis for reducing universities to organizations driven by

market efficiency originated in the principles of the new public
management, particularly based on the idea that competi-
tion among individuals or research groups will lead to higher
quality outputs. The underlying premise in this model is that
quality can be measured by way of so-called ‘performance
indicators’. The positive thing about this is that the empha-
sis lies on the performance: no matter what the previously
formulated plans were or how much time was invested, the
quality of academic publications is all that matters in the
end. In this regard, market thinking is a proper form of de-
bureaucratization and can offer an incentive to perform well.
However, this overlooks the perverse effects of performance

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 130 The mind and method of the legal academic

measurement. There are, in particular, two such effects that

make the application of market efficiency to fundamental and
creative academic research (and education) problematic.

There is an abundance of literature on the new public manage-

ment (the application of management techniques developed for
business to the public sector). Although performance measure-
ment furthers transparency, efficiency, and accountability, its
disadvantages are also widely recognized: in addition to the two
drawbacks discussed below, it is well known that they are likely
to advance strategic behaviour (those being measured learn how
to manipulate the indicators), do not stimulate innovation (repro-
duction of previous work will often lead to a higher score) and can
lead to a tunnel vision (‘targetitis’). See Thiel & Leeuw (2002), De
Bruijn (2002) and the contributions to Lorenz (2008).

The first negative effect of the use of performance measure-

ment is that it is only directed at the measurable aspects of
performance, such as the number of publications or citations,
the type of journal an article was published in, or whether a
clear research question was formulated in the first few pages
of the publication. This means that even if one is able to for-
mulate clear tools for measurement of legal research – which
is not so likely in the varied legal discipline – they will not be
able to include all aspects of quality. In other words, the intan-
gibles, or what cannot be counted by measurement, simply
become irrelevant. This can lead to perverse incentives for
those academics who greatly value performance measurement.
In a quest for prestige and tenure they might be tempted to
trade in their professional habitus for an urge to score highly
and deliver as many measurable achievements as possible.
However, it is likely that researchers valued more highly by the
community of scholars are not motivated by performing in the
short term, and will be motivated by something else, namely
by their quest for knowledge. This means that performance
measurement does not say everything about the quality of
the completed research, which always requires a substantive
judgement by peers.

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 Organization of the legal-academic discourse 131

Research shows that introduction of performance measurement

often leads to the neglect of long-term goals: an organization that
scores highly today on the measurable factors is likely to score
badly in the long run because of its neglect of the non-measurable
factors that are important in increasing innovation and employee
satisfaction. See De Bruijn (2002). This carries a risk of perverse
effects: it is certain that researchers have to be productive, but
publishing twenty articles a year does not in itself make someone
a better researcher. It is more likely that, in this case, a slicing
strategy was applied: research was divided over as many papers
as possible as if it were a sausage. The better thing to do would
have been to make one lengthy article or book that is likely to
have a bigger impact in the long term. For the same reason one
can criticize a unilateral focus on counting PhD defences as a
quality indicator: performance measurement in general tells
us surprisingly little about true quality. The adverse effects of
performance indicators have also been identified in healthcare:
the quantitative measuring of achievements does not enhance
the quality of hospitals or family doctors, but tends to reduce
intrinsic motivation to do the right thing, see for example Bevan
& Hood (2006).
This discussion makes it clear that the principal function of
performance indicators is to make partly explicit what we can
expect a researcher to do (see also infra, no. 61). It also shows
that rewarding researchers based on quantitative criteria does not
necessarily lead to a higher quality of work. Any academic worth
his salt is driven by something else, that is to say what Shapin
2008, 263 calls ‘the desire for a “free space” in which to conduct
the inquiries that one wants to conduct, that one might even feel
oneself driven to conduct’. Such an animated and single-minded
researcher will lose his motivation if his work disintegrates in a
business-like fashion into quantifiable factors of measurement.
Because he is not trusted as an academic, he degenerates from a
passionate professional into an externally directed anonymous
‘processor’. This is a well-known phenomenon in other fields as
well: job motivation diminishes as soon as quality is only meas-
ured in terms of quantitative output. See Lorenz (2008, 179), and
Osterloh & Frey (2010, 14): ‘Autonomy is the most important
precondition for intrinsic motivation, which in turn is required
for creative research.’

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 132 The mind and method of the legal academic

Secondly, market thinking – if taken seriously – leads to

a form of competition that is wrong for the university.
Academic practice is already as competitive as can be: each
researcher strives to write the most thought-provoking books
and articles and to teach students in the best possible way. The
achievements of colleagues in this respect are a permanent
source of comparison and inspiration. In addition to this, the
academic community as a forum of judgement decides how
research is to be valued: first with the acceptance of the manu-
script by the editorial board of the journal or book series, and
then, after the actual publication, by all other peers. In addi-
tion, active academics are perpetually assessed in other ways:
through grant applications: consideration for editorial boards:
invitations to conference lectures: and so on). Competition in
this sense is inherent in academic life.
However, this type of competition is fundamentally dif-
ferent from the sort that is propagated under the new public
management. Thus, the Leiden Professor of Astrophysics,
Vincent Icke, warns that competition along the lines of the
business model leads to the formation of blocs, chauvinism
and short-term thinking, all of which are counterproductive to
science. As discussed above, Frits van Oostrom warns against
the dangers of organizing a faculty into a federative whole in
which the separate sections – indeed as if they were business
units – have to fight for their own profit, and cooperation with
colleagues next door is seen as betrayal.

See Icke (in Lorenz 2008, 256) and Van Oostrom (2007, 14).
In terms of the new public management, this means that finan-
cial competition drives out the so-called ‘system responsibility’:
because units are supposed to compete with each other, they no
longer work together and do not share their knowledge. The lack
of openness, discussion and cooperation caused by this is at odds
with the type of competition that science is all about: not for the
money, but for the appeal of ideas, and therefore – as Bourdieu
(1984) claims – for symbolic capital in the form of reputation.
This competition is as strong in little fields as in international
scholarship. Icke (in Lorenz 2008, 257) rightly describes it as

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 Organization of the legal-academic discourse 133

being of a staggering fierceness: ‘An academic telling nonsense

in a lecture or at a colloquium or conference is not mildly cen-
sured, but torn to shreds.’ It has already been seen above (no. 50)
that publishing insights that go against prevailing opinion is
sometimes met with heavy resistance. It is also unproven that
economic competition leads to better research. This belief was
manifest in the action of Rainer Goebel, a well-known German
professor of Neurocognition, who repeatedly declined offers to
exchange Maastricht for Stanford, claiming that doing so would
force him to compete with his colleagues rather than collaborate
with them.

61. An Alternative Approach

The previous section described the consequences of market

thinking on (fundamental) academic research and education.
These consequences have luckily not materialized yet. For
example, the extent to which performance measurement is
seen as important is, in the end, dependent on the administra-
tor’s desire to be in control. In the law faculties, this admin-
istrator is, in most cases, someone who is a legal scholar
himself and therefore aware of the limited value of perform-
ance indicators. And yet, there is every reason to sketch
the contours of how things could be done differently. This
section will make three main points regarding this alternative
approach.
An alternative approach is also needed because European law
faculties are highly dependent on the central university adminis-
tration, which is in turn dependent on government funding. There
can come a moment when the external administrative pressures
become so acute that law faculties have to swallow new public
management techniques in governing their organization. The
worst case scenario here, and what the universities must prevent
at all costs, is for the assessment of performance indicators to fall
in the hands of a micro-managing macho manager, which would
surely lead to the perversion of the system already discussed,
turning assessments into bureaucratic, pointless rituals. Cf. De
Bruijn (2002).

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 134 The mind and method of the legal academic

First, it must be emphasized that there is nothing wrong with

developing performance indicators in and of itself because
they do in fact clarify what the university can expect from its
academics. However, it is essential that these indicators are
not purely based on quantitative factors, but are also suited to
measuring quality: they must reflect what the academic com-
munity sees as good legal research. And even if this require-
ment is met, it must be accepted that they can only be used as
instruments in a broader context, and can never be considered
as valid replacements for peer evaluations. Furthermore, they
should have only a limited role when it comes to determining
funding.

The literature is unanimous in saying that performance indica-

tors must only be used moderately. See, amongst many others,
De Bruijn (2002) and Thiel & Leeuw (2002). This is reflected in
reports on the value of research assessments issued by various
agencies dealing with higher education. Thus, in the European
Commission’s report, Assessing Europe’s University-Based
Research (2010, 36ff.), it is argued that ‘those being assessed
need to have confidence that the indicators are appropriate
and truthful’. In the Netherlands, the various reports published
by the Association of Universities in the Netherlands (VSNU
2005 and 2007) and the Royal Netherlands Academy of Arts
and Sciences (KNAW 2005 and 2011) say the same thing. This
makes it important that legal science does not yield to the temp-
tation of developing indicators that are comparable to those in
other disciplines (such as citation analysis and elaborate rank-
ings of journals) if the use of these methods does not lead to a
fair judgement of what legal scholars regard as good research.
This is why these reports do not primarily look at measurable
factors, but at qualitative indicators instead (such as the sub-
stantive quality of publications and so-called ‘esteem indicators’
that reflect how the research community regards an individual
researcher – based on awards, fellowships, keynote addresses,
editorial roles, organization of conferences and elected member-
ships of academies). In addition to this, the reports emphasize
that research assessments must always pay attention to the
‘story’ behind the numbers (see also De Bruijn 2002) and that

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 Organization of the legal-academic discourse 135

administrators should accept that not everything can be quan-

tified. Put differently, there must be some resistance, at least,
to the natural inclination of managers to make research as
measurable as possible.
There is a recent tendency to give a large role to bibliomet-
ric factors in reaching a judgement about the quality of legal
research. It is certainly not impossible to make use of these
factors in law and humanities, but – as emphasized in a recent
report issued by the KNAW (2011, 43) – ‘bibliometric quality
indicators must be used cautiously. Counting articles measures
only productivity; counting citations measures impact, which is
not necessarily the same thing as quality (. . .).’ Fifty journals in
the field of humanities therefore recently indicated they no longer
wished to be classified in the European Reference Index for the
Humanities, not because they ranked low in this index (which was
not the case), but because of their view that this ranking ‘depends
on a fundamental misunderstanding of conduct and publication
of research in our field, and in the humanities in general. (.  .  .)
Great research may be published anywhere and in any language.
Truly ground-breaking work may be more likely to appear from
marginal, dissident or unexpected sources, rather than from a
well-established and entrenched mainstream. Our journals are
various, heterogeneous and distinct. Some are aimed at a broad,
general and international readership, others are more specialized
in their content and implied audience. Their scope and readership
say nothing about the quality of their intellectual content’ (Cook
et al. 2009).
In order to avoid simplistic judgements based on bibliometric
factors alone, one must also be careful about the introduction
of a ‘points system’ in measuring quality. Such systems can be
useful, but they overplay their part if they refer to other criteria
for quality than those accepted by the academic community.
Siems (2008, 148) cites Ruhl, who has proposed to introduce a
scale of points to rank academic work in law. His suggestion is
to give two points to descriptive doctrinal work and ten points
to empirical work, if this studies the influence of law on society.
Another example of a points system and its application can be
seen in a ranking of German law faculties (see Ipsen 2005, 426)
using the number of pages (three or four pages: one point; more
than 100 pages: fifteen points) and the status of the journal (if

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 136 The mind and method of the legal academic

peer reviewed, the score was to be multiplied by a factor three) as

variables. Ipsen rightly qualifies this system as ‘hostile to books’
because the academic legal forum does not consider books as
inherently inferior to articles. This is confirmed if one carries out
citation analyses of law journals: these usually show that books
are the most-cited sources. A specific analysis of the 2005 volume
of the Dutch main journal for private law (Nederlands Tijdschrift
voor Burgerlijk Recht) shows that of the 1089 references in total,
547 are to books and contributions to books (the most cited
journal being that journal itself).
Another consequence of the limited value of performance
indicators is that we must be careful about transferring money
from so-called ‘internal funding’ (mostly government funding) to
‘external funding’ (such as funding by research councils and char-
ities). This is so not only because the government takes money
away from universities and tasks funding organizations to redis-
tribute it (which is a good thing if based on quality assessment),
but also because universities themselves make the distribution of
money between faculties increasingly contingent on the faculties’
external funding sources and their ability to attract commercial
funding from private companies. This is denounced by many,
including Van Oostrom (2006), who labelled this as an attack
on the academic heart of the university: money for fundamental
research and for new PhD positions must now increasingly be
obtained through funding organizations, even though there is no
evidence that doing so will lead to a better qualitative output. It
seems obnoxious to have to fight for every penny in order to be
able to do what the university is for.

This leads me to the second point. Ultimately, the assessment

of research must always come from colleagues within the aca-
demic community (peers). As already indicated above (no. 60),
international scholarly practice is full of assessment mecha-
nisms. Peer review is not limited to decisions about publica-
tions, but extends also to academic appointments, assessment
of research proposals, invitations to conferences, election to
editorial boards, and so on. Although this method is certainly
not ideal, assessment by colleagues seems to be the best pos-
sible option.

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 Organization of the legal-academic discourse 137

The inability of bibliometric methods to measure the quality of

legal research accurately is the very reason why the importance
of the peer review process must be valued above all else. This is
also why the United Kingdom Research Assessment Exercise in
2008 decided to evaluate submissions relying on ‘panel J’ (dealing
with law) on the basis of a detailed examination of virtually all the
submitted outputs ‘on their own merits’. After careful considera-
tion, it was also decided that the exercise would not rank any of
the journals. The importance of peer review is confirmed by the
KNAW report, Judging Research on its Merits (2005), which con-
cluded that, in any research assessment, the main publications are
to be assessed by peers, simply because only colleagues can judge
what is the best and what is not.
This does not mean that peer review is ideal, but it does mean
that there is nothing better, at least at this current juncture of
legal scholarship. The disadvantages are described in detail by
Edmond (2008) and in more expressive language by Ad Lagendijk
(1998): ‘It is often driving me mad. If you scored well six times in a
row with your grant applications, it is obvious to assume that the
quality is also high the seventh time around. But this could not be
further from the truth: the seventh time the complete assessment
circus is again let loose on you and you are supposed to fill in all
these forms. I know that this is the price one has to pay for being
allowed to work with the taxpayer’s money.’ The fact that peer
review by editorial boards does not bring universal happiness
either is shown by two well-known cases. In 1996, the prominent
journal Social Text published an article by the American physicist
Alan Sokal. The article was, in the words of Sokal (1996) himself,
‘a pastiche of left-wing cant, fawning references, grandiose quo-
tations, and outright nonsense’ and he had submitted it only to
demonstrate the obliviousness of the editors, who found much
more importance in who had written it, and how it sounded,
than in actually assessing its contents. Similarly in 2002, a young
German physicist, Jan Hendrik Schön made similar exposé of the
peer review system, although in his case, his intent was more mali-
cious: in a relatively short time, he managed to have no less than
28 of his articles accepted by prestigious journals such as Nature,
Science and Physical Review Letters. Despite the supposedly
meticulous review procedure, the great majority of these articles
proved to be fraudulent.

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 138 The mind and method of the legal academic

The use of peer review implies that colleagues within the aca-
demic sub-community have a shared notion of what is ‘good’
research. I can deal briefly with this after everything that I
have said above about the importance of creative research
and of methodological pluralism: good research is creative
and creativity comes in many varieties. This diversity is also
fruitful because it allows us to appreciate different approaches
and acknowledge that jurists can contribute in their own way
to obtaining greater knowledge of the law. It also seems to be
the international consensus that one type of research is not in
itself better than another.

See supra, nos. 51 and 57. It is important to clarify what makes

particular research good. There seems to be international una-
nimity about the requirement that good academic work in law
should be original or creative. The British Research Assessment
Exercise (RAE) adds that originality, significance and rigour
are the three criteria that contribute most to the quality of an
article, while in Germany ‘interdisciplinarity’ and ‘internation-
alization’ are the keywords of good research (Ipsen 2005, 425).
Korobkin (1999, 860), on American research, comments, that
‘“valuable” scholarship is that which is both insightful and
original’ and Chemerinsky (2009, 891) asks of scholarship that
it be significant and original. This is also reflected in the reports
of the Dutch VSNU-committees on the quality of legal research
(VSNU 2005 and 2007) and in the Flemish approach (<www.
vlir.be>).
These general requirements leave much room for further inter-
pretation, and rightly so, as there are many types of research that
might meet these requirements. With Siems (2008, 248), I am
of the opinion that the only right approach is one of tolerance.
This is not any different in other disciplines. As the Fields Medal
winner, Terence Tao (2007), who offers a non-exhaustive enu-
meration of as many as 21 types of ‘good’ mathematical research,
claims: ‘this diverse and multifaceted nature of “good mathemat-
ics” is very healthy for mathematics as a whole, as it allows us
to pursue many different approaches to the subject, and exploit
many different types of mathematical talent.’

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The assessment mechanisms ingrained in scholarly practice

must not be replaced by bibliometric criteria. Instead, an attrac-
tive alternative, which could ensure high quality academic
work, is the proposal made by Margit Osterloh and Bruno
Frey, which promotes a careful selection and socialization of
aspiring scholars. In their view, recruitment is the essential
element of quality control: future colleagues should master the
state of the art, have a ‘taste for science’ and be able to direct
themselves. As soon as someone is appointed on the basis of
these assets and other strict professional academic criteria
(quality of publications and of teaching), this person should be
trusted and be given a wide range of autonomy. It may be that
some will misuse their autonomy and waste funds, but this is the
price to be paid for the majority of high performers to flourish.
Most hired researchers are likely to be motivated by the auton-
omy and resources they receive. The existence of basic funding
for everyone who meets the high standards to be recruited will
also guarantee a diversity of different approaches. This is the
system of quality control employed at top law schools in the
United States, including but not limited to Harvard University
and the University of Chicago.

See Osterloh & Frey (2010, 15ff.), who emphasize that continu-
ous research assessments only lead to mediocrity: ‘Measurement
exerts not only pressure to produce predictable but unexciting
research outcomes (. . .). Path-breaking contributions are exactly
those at variance with accepted criteria’ (cf. Frey & Osterloh
2006, 5). Having to meet identical standards (and hence less
methodological pluralism) means that one is no longer able to
broaden one’s horizon. This is why these authors propose to trade
in the distribution of means on the basis of output control for
distribution based on process control, with the most important
criteria being whether the selection procedures is adequate and
whether academics have sufficient autonomy. Differentiation
among scholars is possible in the way described by Lagendijk
(1997): ‘Decide on basis of past performance who are the best aca-
demics, give them ample funds for a five-year-period and assess
them rigorously afterwards’ (see also supra, no. 60).

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 140 The mind and method of the legal academic

The third point is that administrators and academics must show

determination in pursuing what they see as the main mission of
their university. Administrators are increasingly prone to argue
in favour of the type of research they desire under the guise of
enhancing quality. There is nothing against a faculty taking
the deliberate decision to (for example) devote itself to interna-
tional or empirical research, or instead, aim for producing the
best future practitioners. However, such choices must not be
motivated by claiming that one type of research is intrinsically
better than another. Academics, for their part, must not be led
astray by the control mechanisms of the new public manage-
ment and should primarily push their own research agenda. In
particular, university chairs have a role as exemplars here.

I am of the opinion that universities should make well-founded

choices in favour of certain types of research and education more
than they currently do. The overwhelming majority of law facul-
ties in Europe focus on teaching national law. It is also difficult to
maintain that there are many differences in substance or quality
between most law faculties within a country. When it comes to
research, choices are sometimes made but then often obscured
with a reference to the supposedly higher quality of a certain type
of research (usually the more internationally oriented). Although
I openly advocate a much more international education and
research agenda (see also infra, no. 62), I do not mean to suggest
that the quality of a more domestically focused education is neces-
sarily any less than an education with a more international focus.
Academics must also show more courage and argue that their
job is first and foremost a creative one that can therefore never
be made entirely subject to managerial control. The development
that Steven Shapin (2008) describes – from science as a voca-
tion to science as a completely professional career – is luckily
not complete. This is because an academic should not be a mere
bureaucrat, but a charismatic leader (as Max Weber (1946)
famously said). Relying on the witness reports of their students,
paradigmatic examples of charismatic academic leaders in the last
century include notable figures such as Albert Einstein, Richard
Feynman and Johan Huizinga and – in law – Harry Lawson, Otto
Kahn-Freund, David Daube and René David. They all spread

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 Organization of the legal-academic discourse 141

the word about the importance of their field and propagated – as

Feynman (1999) calls it – ‘the pleasure of finding things out’.

62. Consequences for Legal Education

The focus of this book until now has been almost exclusively
on legal research. It would, however, be wrong to suggest
that legal scholarship can stand apart from teaching the law:
ideally the two are closely related. This is why this last section
of the book pays particular attention to the consequences for
legal education of the views discussed above about law and
legal research. These consequences flow directly from the
argumentative character of law (see in particular nos. 31 and
40 above), Legal education must be as little directed towards
finding ‘certain’ rules or outcomes as legal scholarship. The
main aim of legal education must be to explore and contrast
the implications of conflicting normative positions. Students
should not just learn one system of law, but ought to be
exposed to alternative ways of achieving justice. The focus is
then on learning a way of thinking, much more than on getting
to know the intricate details of some substantive law. The fol-
lowing sections discuss the arguments in favour of this new
type of legal education and how it can be enacted.
It is surprising that legal education in Europe is usually
focused on presenting the law as coming from some author-
ity and therefore on how it is. Thus, virtually all textbooks
aim to give a description of the existing national law, seem-
ingly trying to ban uncertainty as much as possible. This does
not only make legal education positivist and national, it also
makes it too focused on the contents of the rules, although we
know that this tends to change rapidly.

Atiyah & Summers (1987, 394) note the same thing: ‘The tone of
textbooks is often dogmatic, with decisions presented as if they
were strict decisions from basic principles. (.  .  .) The ultimate
and all-pervasive aim is to lay out the law as it stood on the day
the book went to press.’ This positivist thinking carries the risk

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 142 The mind and method of the legal academic

that students become obsessed with the here and now without
reflecting upon how the law could read. This insight that legal
education must not focus on the apparent certainties introduced
by the national legislature and courts is of course not new. Rudolf
Von Jhering ([1998, 52]) was already writing back in 1868 about
positivism as the ‘mortal enemy’ of jurisprudence: ‘it downgrades
legal science to a mere trade and must therefore be fought to the
death’.

The best legal education ought to teach students a method:

they need to learn which arguments exist for and against
certain solutions, how to weigh these arguments and how to
deal with competing systems of rules. This means that the cur-
riculum must be much more international than it is today: stu-
dents should learn about the fact that different societies give a
different weight to issues such as social justice, efficiency, the
equality of men and women, and the value of life. They should
learn to think through the consequences of choices made
in different societies, to understand why these choices were
made, and to argue why they think one choice is better than
the other. The starting point, therefore, is not the German or
French (or any other national) law, but a particular question
and the way in which this question is answered in various juris-
dictions. This calls for a truly European (or global) education
in the bachelor phase of the curriculum, followed by a masters
in one specific national legal system.

Three arguments can be put forward in favour of a more inter-

national approach to teaching the law. The first is based on the
changing character of the law itself, the second on the require-
ments an academic study should meet, and the third on the impor-
tance of attracting highly motivated students to law programmes.
See also Smits (2011).
The first argument in favour of a truly European education is
that the law itself is no longer a national phenomenon. The law
increasingly flows from sources outside the national border and
is often the product of private initiatives (see supra, no. 25). Any
modern legal education should take these norms into account, not

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 Organization of the legal-academic discourse 143

only because they are indispensable in understanding the exist-

ing law (and consequently play a big role in practice), but also
because they make students realize that the law is not necessarily
tied to the nation state. Patrick Glenn (2006, 59) rightly observes
that if the law is no longer considered exclusively in terms of
national sources, the discipline of law ‘must assume the cognitive
burden of providing information on law beyond national borders’
(also see supra, no. 39). This implies that a legal education based
exclusively on the intricacies of national legislation and court
decisions is an inadequate one.
It would be possible to argue that this plurality of sources does
not force us to adopt any far-reaching type of international legal
education: one could still teach the national law and add some
international and comparative elements here and there. I do not
deny this as a possibility (it is even common practice at most
law schools), but I do not think that this is the best way to teach
students in today’s globalizing world. Even if one asserts that
the only goal of legal education is to offer a professional training
for future practitioners (which I would deny), these practition-
ers should be able to work in different legal systems in various
countries to meet their clients’ needs. Even when graduates stay in
their home country, they are increasingly advising multinational
and foreign clients who want to know about different solutions.
This calls for a much more rigorous international curriculum in
which alternative approaches are sketched from the first day.
Thus, teaching only one national law does not adequately prepare
students for the world they have to work in.
In the last decade, the attention given to comparative and
European aspects of the law has increased significantly in most
curricula. Various international joint degree programmes
were put into place, including the Dutch-German Hanse Law
School. Recent overviews of this development can be found in
special issues on transnational legal education in the Penn State
International Law Review (26 (2008) no. 4) and in the German Law
Journal (10 (2009) no. 7). The premise of these curricula is that
one must first learn the ‘own’ (national) law and that only in the
second stage can attention be paid to foreign law. The stimulat-
ing experiences of the Maastricht European Law School and
the ‘transsystemic’ curriculum of the McGill Faculty of Law in
Montreal (where from the very first year, civil law and common

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 144 The mind and method of the legal academic

law are taught in an integrated way) show that this can be done
differently. I have no doubt that this integrative model is the best
teaching method available to meet the needs of an international
legal education. Students dealing with problems that require con-
siderations of multiple jurisdictions tend to form pluralistic legal
minds contrary to the ‘mind fixing’ that takes place under the
traditional curriculum. As Jaakko Husa (2009) rightly says: ‘This
creates an implicit mono-epistemology, which makes lawyers
regard their own system as “normal” and other systems as “not-
normal” or, at least, something that is “less-normal”. From this
mono-epistemic platform, the law student is first immersed in the
one-approach-thinking, which later makes it difficult to epistemo-
logically adapt to transnational pluralism and to genuinely accept
different approaches.’
The rise of these new types of transnational curricula was
characterized as a new ‘Langdellian moment’ (Strauss 2006).
In the same way as Christopher Columbus Langdell initiated
a reform of American legal education towards the end of the
nineteenth century by introducing the Socratic method, McGill
and Maastricht lead the way towards a more international legal
education. This is not without difficulties: this integrated method
requires not only new teaching materials and the hiring of staff
members with international experience, but it also implies that
graduates may not have direct access to the legal profession
because the legislation has yet to adapt to the needs of a rapidly
internationalizing society. If these problems can be overcome, it
will lead to truly international law faculties that will be able to
compete for students and staff from all over Europe. In addition,
it will lead to a much-desired differentiation among law faculties
(see also supra, no. 61).
The second argument in favour of an international legal educa-
tion is that it meets the requirements of an academic study better
(on these requirements: Bell 2003 and Kronman 2007). A legal
education should, in my view, do at least two things: it should offer
a specialized professional training in becoming a lawyer and it
should shape students to become academics. The latter means that
students should learn to use the law not only as an instrument, but
also to think about it in an intellectual way. Martha Nussbaum
(2003) aptly argues that in today’s world, this academic aspect
means that students have to prepare for ‘global citizenship’: they

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 Organization of the legal-academic discourse 145

should learn how to become a citizen, not only of their country

and their local community, but also of the increasingly interlock-
ing and interdependent world that they live in. This means, in my
view, that an academic legal education should educate students
about the contingency of the law: students have to be exposed
to legal diversity, not only through grasping common law and
civil law (and the varieties within these legal families), but also
by extending their understanding to Nordic, Asian and Islamic
laws. These jurisdictions will tell them how different choices can
be made. If this ‘dialogue with otherness’ (cf. Morisette 2002) is at
the core of legal education, to focus on only one or two jurisdic-
tions would be a poor and rather limited curriculum. A true legal
education is only worth its salt if it shows alternative outcomes to
common problems to the full extent.
It must be emphasized that this argument is not just about
teaching students about multiple legal systems; it is about encour-
aging students to learn the legal way of thinking (to ‘think like a
lawyer’). It is similar in a way to what economists do in adopting
a method of analysis (‘the economic approach’): law is ideally
regarded as a method and not as a subject. Under this view,
students no longer study English law or German law, but they
learn how to apply a legal approach to the questions that society
is facing. In doing so, they learn that views on ‘what ought to
be’ necessarily differ from one jurisdiction to another, and that
legal scholarship deals with exploring and contrasting the impli-
cations of these conflicting normative positions. Legal scholars
do not search for what the just society is, but discuss alterna-
tives. Although after two hundred years of teaching only one
law, many law schools may be apprehensive of, or even resistant
to, such a transition, it does not mean that it is impossible. One
should realize that in the 1000 years or so in which the law has
been taught at universities, the last two hundred years have been
exceptional: before the dawn of the nineteenth century, students
learned about more than one law, be it Roman law and canon
law, common law and mercantile law, or Roman law and local
law. It was self-evident that all of these laws had a rationality
of their own and could not be brought under one heading. The
academic degrees that law graduates receive (LL.B (legum bacca-
laureus or Bachelor of Laws), LL.M (legum magister or Master of
Laws) and LL.D (Doctor of Laws) still remind us of this practice.

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 146 The mind and method of the legal academic

The final argument for why an international legal education

is preferable to a national one is that it will attract students who
are more motivated. In this respect, the success story of the cur-
riculum reform made by Langdell at Harvard is telling: before
Langdell became the dean of Harvard Law School in 1870, law
was taught by way of lectures, textbooks and moot courts. This
was good enough for the great majority of students, but it did not
give any real intellectual stimulation to the best among them. This
all changed when Langdell introduced the case method (and com-
bined it with the Socratic method). This new method significantly
intensified the academic rigour of the programme, which in turn
attracted more ambitious students, craving intellectual stimula-
tion, to the programme. After graduation, these students were
hired by the top law firms in New York because of their ability
to deal with more than one state’s jurisdiction (Strauss 2006). In
most European countries today, the pursuit of a legal education
is seen as a rather meek pursuit. This is at least partly caused by
the way in which law is often taught, portrayed as something
authoritative and inalterable. I believe this perception of the law
is wrong. A European or cosmopolitan legal education can be a
real intellectual challenge, attracting even more capable students
and producing better graduates.

Furthermore, international legal education need not take

place in the language of the country where the university is
located: an international law curriculum can be taught in
English (or in any other language). The objections sometimes
expressed against teaching law in English stem generally from
the fear that in learning about non-English legal concepts in
English, a certain essence of those concepts might get lost in
the translation. However, a valid reason to quash these fears is
to realize that the emphasis of European or global legal educa-
tion is not on what the actual texts say or their interpretation,
but on the arguments behind the concepts.

Of course, it does not make any sense (nor should one try) to
teach Dutch, German, Finnish, or another national law, in
English. However, this is not the point of the type of European
legal education proposed in this section: the aim of such a pro-

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 Organization of the legal-academic discourse 147

gramme would be teach students to think like a lawyer in an

international setting. This means a necessary turn away from the
texts and their interpretation towards the arguments behind these
texts. These arguments can very well be discussed in English as
they are not dependent on one national jurisdiction. The prereq-
uisite is that international textbooks in English become available
on a much larger scale than is the case today. See, on English as a
language for research, also supra, no. 48.

Another point of discussion is what the most effective model

of teaching is in a transnational legal curriculum. If we assume
that students are to be persuaded to consider a wide variety of
sources to construct their own understanding (and not that of
the learned author or lecturer) of the legal problem, the ideal
teaching method is certainly not to focus on doctrinal ques-
tions or to teach ‘comparative law’ as such. What works best
is to select a topic and to provide materials on how this topic
is dealt with in various jurisdictions.

Kurt Lipstein (1992, 258) aptly describes the ideal process: ‘The
student must in his time examine the reading matter, possibly
have recourse to further literature and practice cited there before
coming to the classroom. Here accounts given by members of the
class reporting on unfamiliar topics will be amplified, collected
and explained by the lecturer (. . .). This exchange (. . .) requires a
much greater participation by the directing lecturer and the audi-
ence (. . .).’ This practice fits in with various ‘teaching theories’.
One of these theories is problem-based learning (PBL), adopted
at various law schools throughout the world including Maastricht
University’s Faculty of Law (see, on this faculty’s European Law
School programme, Heringa & Akkermans 2011). PBL regards
discussion of carefully designed problems in small groups, rather
than systematic overviews in big lectures, as the main stimulus
for learning. PBL can work well if it is sufficiently adapted to
legal education and understood in a broad sense as focusing on
a discussion of problems with multiple solutions. In my own
experience, a vital component of successful PBL is the lecturer’s
qualification as a reputable academic rather than as a mere ‘facili-
tator’ of discussions. As George Stigler (1963, 14) once put it: he

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 148 The mind and method of the legal academic

is ‘to fan the spark of genuine intellectual curiosity and (. . .) to

communicate the enormous adventure and the knightly conduct
in the quest for knowledge’.
PBL is not the only educational theory consistent with small
group teaching aimed at an exchange of ideas about alternative
problem solving. The Socratic method, consisting of a dialogue
between lecturer and students, in question and answer format,
also enables ‘deep’ learning. In American law schools, this
Socratic method is seen as a highly successful approach to two
things PBL also does: teach students to think like a lawyer and to
practise their skills. I do not think PBL and the Socratic method
differ fundamentally, except for the fact that in PBL, there seems
to be a preference for smaller groups of students with twelve being
about the maximum. However, the American experience shows it
is very possible to teach larger groups of students. See also Rakoff
& Minow (2007).

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 Synopsis
63. Four Claims

This book began with the observation that the aims, methods
and organization of legal scholarship have received a lot of
attention in the last few years. What followed can be seen as
an attempt to cope with this ‘identity crisis’. This synopsis
does not offer a detailed summary of that attempt but, instead,
highlights four key points, which in my view are essential if we
are to take legal scholarship seriously and avert the crisis that
confronts legal scholars.
First, a clearer vision of the tasks assigned to legal scholar-
ship is required. Legal academics can pursue different goals
but, in my view, the core of their discipline is the question,
‘What are people legally obliged to do?’ The accompanying
research method is to identify and to think through arguments
for and against certain solutions and to see whether these
arguments can be accepted or not in the normative setting of
a specific jurisdiction. Existing jurisdictions are thus seen as
‘laboratories’ in dealing with conflicting normative positions.
One need not accept this specific interpretation of the task of
legal science to recognize that a clearer formulation of its aim
is needed. The legal discipline will otherwise remain a pariah
in the company of other academic disciplines that can describe
precisely what is at their core.
Secondly, this interpretation puts it beyond doubt that legal
science cannot simply rely on the authority of the legislature
and the judiciary to answer the question, ‘What ought we
legally to do?’ Those in power have always claimed that the
law is given by an authority and, hence, is no more suited to
further discussion than God giving the Ten Commandments

149

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 150 The mind and method of the legal academic

to Moses, the Oracle at Delphi giving Lycurgus the laws of

Sparta, or Napoleon dispensing the Code Civil. Jurists know
better than this. The core of the academic engagement with
the law (at least in the normative sense) is to show time and
time again how we can debate what ought to be, even if there
is already a consensus amongst the majority. The theoretical
foundation of this was a view of the law as an organically
growing whole, ‘fined and refined by an infinite number of
grave and learned men’ (as the student says in Hobbes’s A
Dialogue between a Philosopher and a Student of the Common
Laws of England).
A third claim made in this book is that legal scholarship
offers, most of all, a way of thinking: while the contents of the
positive law are changeable, the legal academic must aim for
the development of a method that can deal with the available
materials. Again, the proposed ‘empirical-normative’ method
need not be accepted as the only right one, as long as it is
acknowledged that it is only by defining legal scholarship as
a way of thinking, that it will no longer be dependent on the
coincidental contents of the positive law. Inevitably, this also
turns law into an international discipline and, that being the
case, to make use of only national materials in answering the
question, ‘What ought we legally to do?’, becomes blatantly
inadequate.
The final claim is that, if anything, legal scholarship must
be original and in order to foster and nurture creativity, a
research culture that allows freedom to the gifted researcher
must be promoted. If too strictly enforced, ‘market thinking’
with a unilateral focus on the measurability of performance
would only obstruct the free flow of ideas and hinder creativity
and motivation. It is also of great importance for law facul-
ties to realize and understand that quality can come in many
varieties. Restricting the types of research and teaching to a
single ‘best’ method, is not likely to guarantee a high quality
product.
All in all, this book provides the insight that the legal disci-
pline must not be heavily influenced by the aims and methods

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 Synopsis 151

of other disciplines, which are often limited to understanding

the social or physical reality. What the legal discipline must
do instead is to capitalize on its strength, which is its ability
to reflect upon what people and organizations legally ought
to do.

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 Index
The numbers refer to the sections.
abortion 16, 51, 55 Canon law 62
Adat law 15 Chicago Law School 61
administrative law 7, 28 Cicero 8
AHRC 53 citation analysis 60, 61
ALI 6 civil law 16, 35, 62
Aristotle 20, 37, 44, 56 civilology 16
Arnold, M. 30 Clark Medal 60
Atiyah, P.S. 28, 40, 62 Coase, R.H. 13, 50, 56
Austin, J.A. 1 Coetzee, J.M. 50
coherence 1, 2, 7, 8, 9, 12, 16,
Backhouse, R.E. 26, 54 28, 33, 45, 46, 51
Bacon, F. 2, 28 Collier, C.W. 23
Barendrecht, J.M. 35 common law 13, 16, 35, 43, 62
Becher, T. 1 comparative law 11, 14, 15, 39,
Beck, U. 40 41, 42, 46, 51, 59, 62
Becker, G.S. 23 competition 42, 52, 60, 61
Belgium 61 conflict resolution 12, 15, 35
Benda-Beckmann, F. Von 15 constitutional law 7, 30, 36, 39,
Bentham, J. 7, 23 48, 59
Berlin, I. 46 constitutional review 23, 30, 45
Birks, P.B.H. 8 consumer protection 5, 13, 39,
Blackstone, W. 7 42
Bok, D. 58, 60 contract law 5, 7, 8, 15, 16, 25,
Bourdieu, P. 60 27, 28, 33, 34, 36, 39, 42, 51
Brandeis, L.D. 16, 39 cooperation 53, 59, 60
Breyer, S.G. 39 Corstens, G.J.M. 49
Bundesverfassungsgericht 36 Court of Justice EU 34, 36
Bydlinski, F. 22 creativity 1, 7, 8, 28, 49, 50, 51,
56, 57, 59, 60, 61
Calabresi, G. 50 criminal law 5, 13, 16, 23, 25,
Canaris, C.-W. 8, 51, 55 30, 35, 39, 40, 51

175

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criminology 16, 51 empirical-normative

Critical Legal Studies 28, 45 method 38, 39, 42, 45, 47,
Crombag, H.F.M. 57 48, 55
English 48, 61, 62
Dankwardt, H. 34 Epstein, L. 53, 55
Dannemann, G. 39, 46 Erasmus 30, 37
Darwin, C.R. 27, 28 ERC 60
Daube, D. 61 ESRC 53
David, R. 61 ethics 20, 26, 27, 39
DCFR 25, 28, 42, 43 European Law School 62
death penalty 23, 30, 35, 39 European private law 7, 17, 25,
debate 30, 32, 38, 40, 45, 49, 59 28, 34, 39, 41, 42, 43, 48,
democracy 17, 25, 28, 35, 40, 41 51, 59
Dennett, D.C. 27 Europeanization 11, 17, 25, 27,
DFG 20, 53 34, 40, 42, 43, 48, 62
Dicey, A.V. 7 Everaerts, N. 44
differentiation 61, 62 evolution 17, 27, 52
dissenting opinion 49 experiment 2, 6, 16, 20, 39, 54,
doctrine 1, 2, 7, 8, 9, 10, 16, 33, 57, 59
37, 40, 45, 50, 55, 61
dogmatics see doctrine false friends 15
Domat, J. 8 falsification 25, 51, 52, 54
Donellus, H. 8, 50 family law 39
Donohue, J.J. 35, 51 Feenstra, R. 17
drinking age 39 Feldbrugge, F.J.M. 56
Dutch 61, 62 Feynman, R.P. 2, 61
dwarf tossing 36, 43 Field, D.D. 2
Dworkin, R.M. 7, 46, 51 Fields Medal 52, 60, 61
figuratism 50, 52
economics 2, 3, 11, 16, 20, 23, Finnis, J.F. 5, 45
26, 27, 34, 53, 56, 57, 60 Fisk, J.B. 59
Edwards, H.T. 1, 2 Flyvbjerg, B. 44, 57
efficiency 13, 27, 34, 46, 52 forum 2, 38, 54, 60, 61
efficient breach 34 Foucault, M. 10
Ehrlich, E. 12, 16 France 1, 36, 54
Einstein, A. 61 freedom of speech 36
Ellickson, R.C. 16 Frey, B.S. 60, 61
empirical approach 1, 2, 5, 8, Fried, C. 28
10, 12, 16, 20, 23, 27, 35, 39, Friedman, D.D. 28
50, 51, 61 Friedman, L.M. 14, 42

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 Index 177

Fuller, L.L. 40 House MD 56

functionalism 15, 35, 39, 43, 46 House of Lords 36, 39
fundamental rights 36, 43 Huizinga, J.H. 6, 61
funding 1, 49, 51, 59, 61 human dignity 34, 36
Humanism 8, 50
Gadamer, H.-G. 21 humanities 6, 20, 52, 54, 56, 61
Gaius 28 Humboldt, A. Von 58, 60
Gay, V.P. 52 Hume, D. 57
Geertz, C.J. 42, 57 Husa, J. 15, 62
Genn, H.G. 16
Germany 1, 7, 10, 16, 20, 34, Icke, V. 60
36, 39, 42, 50, 53, 57, 60, 61 incommensurability 39, 46
Gerven, W. van 51 Indonesia 15
Gestel, R.A.J. van 1, 53 innovation 50, 51, 60
Glaeser, E.L. 16, 35 interdisciplinarity 1, 2, 5, 8, 59,
Glenn, H.P. 39, 62 61
global administrative law 9 internal perspective 1, 2, 7, 10,
Goebel, R. 60 11, 24, 25, 40
Gould, S.J. 57 internationalization see
governance 12, 25 Europeanization
graduate schools 59 Ipsen, J. 1, 59, 61
Groot, A.D. de 54 Islamic law 62
Grotius, H. 17, 30, 37 Ius commune 43, 59

Habermas, J. 21 Jansen, N. 15, 25, 45

Hage, J.C. 23 Jhering, R. Von 16, 28, 50, 62
Hand, B.L. 10 journals see law journals
Hanse Law School 62
Hart, H.L.A. 5, 17, 27 Kahn-Freund, O. 61
Harvard University 60, 61, 62 Kant, I. 9, 36
Hayek, F.A. 27, 28 Kantorowicz, H. 50
Helsinki University 60 Kaplow, L. 34
Hesen, G.G. 16 Kelsen, H. 17, 27
Hesselink, M.W. 27, 28, 38 Kennedy, D. 50
Hobbes, T. 1, 63 Kirchmann, J. Von 1
Hoetink, H.R. 14 Kleinwächter, F. 34
Hoge Raad 27, 33, 36, 42, 49 KNAW 60, 61
Holmes, O.W. 12, 16, 28, 44 Köndgen, J. 56
Homo juridicus 19, 23, 24, 25 Koopmans, T. 9
Horwitz, M.J. 14 Korobkin, R.B. 16, 61

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Kronman, A.T. 28, 62 Llewellyn, K.N. 12, 15

Kuhn, T.S. 52, 56 Lorenz, C. 58, 60
Lorentz Centre 59
Lagendijk, A. 50, 59, 61 Lundstedt, A.V. 1
Lambert, E. 42
Langdell, C.C. 62 Maastricht University 60, 62
language 10, 15, 25, 61, 62 Macaulay, S. 16
Larenz, K. 54, 55 MacCormick, N. 55
Latour, B. 21 MacIntyre, A.C. 21, 44, 46
Law and Economics 5, 13, 17, Maine, H.S. 27
28, 34 Markesinis, B.S. 39
Law and Psychology 5, 17 market efficiency 49, 58, 60, 61
law journals 1, 5, 16, 49, 56, Martinek, M. 8
59, 61 Martins, H. 41
Lawson, F.H. 61 Mataja, V. 34
legal education 1, 4, 10, 33, 50, mathematics 8, 20, 37, 46, 52,
59, 62 59, 60, 61
legal history 5, 11, 14, 17, 27, 51 McCall Smith, A. 26
legal origins 35 McCrudden, C. 1, 2, 5, 53
legal scholarship McGill University 62
arguments in 11, 17, 21, 28, McKloskey, D.N. 57
30, 37, 40, 43, 52, 55, 59 Meijers, E.M. 8
description in 5 ff., 22, 24, 62 Merkel, A. 1
identity crisis 1, 2, 63 Merton, R.K. 59
methodology 1, 30, 53, 54 method 1, 3, 6, 7, 8, 11, 14, 15,
requirements 20, 21, 22, 25, 20, 21, 27, 30, 49, 53, 54, 56,
48, 57 58, 61, 62
types 5 ff., 49, 51 methodological nationalism 41
legal realism 12, 16 methodological pluralism 51,
legal theory 3, 5, 17, 22, 25, 27, 57, 61
51 Micklitz, H.-W. 1
Leibniz, G.W. 50 Mill, J.S. 46
Leibniz Prize 57, 60 Millgram, E. 45
Leiden University 59, 60 Mommsen, C.M.T. 14
LERU 60 Monateri, P.G. 14
Lessig, L. 2 Morality 40, 45
Levitt, S.D. 16, 50, 51, 55 Morisette, Y.-M. 62
library 56, 59 Mulder, T. 1
Lipstein, K. 62 multilevel governance 17, 25,
literature studies 6, 23 41, 62

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 Index 179

Nachfrist 42 problem-based learning 62

Napoleon 63 progress 42, 52, 59
Natural Law 5, 7, 8, 9, 25, 27 psychology 2, 6, 16, 20, 27, 53,
Netherlands 1, 2, 4, 8, 15, 27, 57
33, 36, 37, 42, 43, 49, 53, 54, Pufendorf, S. 9, 50
59, 60, 61, 62
New Public Management 51, RAE 59, 61
60, 61 Ranke, L. 14
Nobel Prize 23, 50, 56, 57 ranking 1, 61
NSF 53 rational positivism 8, 44, 52, 56
NTBR 61 Rawls, J.B. 35, 51, 56
Nussbaum, M.C. 44, 46, 62 replicability 21, 22, 54, 55
NWO 20, 53 research
agenda 5, 50, 60, 61
Oostrom, F.P. van 58, 60, 61 assessment 1, 53, 59, 60, 61
originality 7, 9, 49, 50, 51, 61 culture 58, 59, 61
Osterloh, M. 61 programmes 59
question 52, 55, 56, 57, 60
path dependence 28 schools 59
Patterson, D. 54 rhetorics 21, 32, 38, 56
PECL 25, 42 Rickert, H.J. 21
peer review 1, 2, 54, 55, 59, 60, Robbe-Grillet, A. 50
61 Roman law 8, 9, 14, 43, 62
Perelman, C. 38 Rosenberg, A. 26
Perelman, G.J. 52 Ruane, J.M. 5, 21
performance 34, 42 Rubin, E.L. 5, 7, 10, 21, 22, 23,
performance indicators 60, 61 24, 30, 31, 37
philosophy of law 5, 17
pledge 45 Sade, D.A.F. de 50
political science 16, 27, 53, 55 Saffer, H. 35
Popper, K.R. 27, 52, 54 Saleilles, R. 42
Posner, E.A. 26 Samuel, G. 35, 47
Posner, R.A. 1, 2, 3, 8, 10, 13, Sandel, M.J. 23
25, 34, 35, 44, 50, 52, 55 Savigny, F.C. Von 7, 8, 27, 50,
practical wisdom 44, 45, 47, 56 55
prestige 53, 57, 60 Scalia, A.G. 39
principles 1, 7, 8, 16, 26, 28, 39, Schama, S.M. 6
40, 41, 42, 51, 55 science 2, 6, 8, 16, 20, 21, 22,
private law 3, 5, 7, 8, 9, 16, 22, 23, 42, 44, 52, 54, 56
25, 28, 35, 43, 50 Schön, J.H. 61

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Schoordijk, H.C.F. 33, 39 Tamanaha, B.Z. 26, 28, 35

serendipity 59, 60 Tao, T. 61
Shapin, S. 55, 59, 60, 61 targetitis 60, 61
Shavell, S.M. 34 teaching see legal education
Shleifer, A. 16, 35 tertium comparationis 15, 39, 46
Siems, M.M. 5, 16, 51, 61 Teubner, G. 25
Simon and Garfunkel 46 Tijssen, H.E.B. 55
Singer, J.W. 32, 33, 34, 35, 36, tobacco advertising 34, 35
38, 39, 45, 48, 54 topos 44
Sitzfleisch 8 Toulmin, S.E. 44, 46
Skinner, B.F. 57 Twining, W. 1, 7, 40
slavery 34
Smith, S.D. 45 Ulen, T.S. 2, 16
Snow, C.P. 21 uniform law 17, 40, 41, 42, 43
social justice 28, 34, 38, 55 United Kingdom 1, 2, 8, 16, 36,
social sciences 1, 2, 20, 53, 56, 43, 53, 59, 61
61 United States 1, 2, 7, 10, 14, 16,
social welfare 13, 26, 34, 46, 35, 39, 58, 59, 61, 62
51
Sociology of Law 12, 16, 17 valorization 60
Socratic method 62 Vermeule, A. 35
Sokal, A.D. 61 VLIR 61
South Africa 43, 50 Vollenhoven, C. van 15
Spinoza Prize 57, 60 Vranken, J.B.M. 28, 50, 53, 55,
spontaneous order 27, 28 60
Stair (James Dalrymple) 28 VSNU 60, 61
Stanford University 60
Stigler, G.J. 57, 62 Walt, A.J. van der 8
Stolker, C.J.J.M. 1, 2, 3, 49, Weber, M. 12, 16, 61
59, 61 Weinrib, E.J. 7, 10, 28, 35
Strauss, P. 62 Wilburg, W. 22
string theory 52 Wilhelmsson, T. 42
Sunstein, C.R. 35 Wilson, E.O. 27, 57
Supiot, A. 23 wrongful birth 36
Supreme Court (US) 16, 35, 39
systematization 1, 5, 6, 7, 8, 9, Zelst, B. van 28
17, 21, 22, 33, 40, 44, 45, 50, Zimmermann, R. 14, 43, 56
51, 55, 57 Zweigert, K. 15

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