Search result: 53 articles


    The article discusses the contribution of comparative law to the study of federalism and decentralisation. In doing so, it stresses the relevance of the notion of federalising process, as elaborated by Carl J. Friedrich.

Giacomo Delledonne
Postdoctoral fellow in Constitutional Law, Scuola superiore Sant’Anna, Pisa, Italy. Email: Huge thanks go to Sofia Ranchordás and Irene Broekhuijse. I would also like to thank Paolo Carrozza, Paolo Addis, Ilaria Rivera and the anonymous reviewers for their precious suggestions and comments.

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.

Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.

    By conducting methodological assessments, legal researchers decide which lines of inquiry are worth pursuing. Two aspects of such assessments are highlighted in this article. The first aspect is to construct promising lines of inquiry. The second aspect is to clarify provisionally the potential of various promising lines of inquiry. Clarifying and calibrating such potential through discourse with fellow researchers are essential. Increased awareness of how legal researchers decide which lines of inquiry are worth pursuing is vital to contemporary discourse about legal methodology.

Synne Sæther Mæhle
Associate professor, Faculty of Law, University of Bergen, Norway

    Quantitative empirical research into legal decisions must be conducted using statistical tools that are appropriate for the data involved. Court decisions are one example of a domain where the data is intrinsically hierarchical (i.e., multilevel), since decisions are made on individual cases by decision-makers in courts located across geographical (or jurisdictional) areas. Past research into court decisions has often either neglected higher level variables or incorrectly used single-level statistical models to analyze multilevel data. The lack of a clear understanding about when and why multilevel statistical models are required may have contributed to this situation. In this paper, we identify the problems of estimating single-level models on hierarchically structured data, and consider the advantages of conducting multilevel analyses under these circumstances. We use the example of criminal sentencing research to illustrate the arguments for the use of multilevel models and against a single-level approach. We also highlight some issues to be addressed in future sentencing studies.

Mandeep Dhami

Ian Keith Belton

Gijs van Dijck

Sanne Taekema

    This article examines the main assumptions and theoretical underpinnings of case study method in legal studies. It considers the importance of research design, including the crucial roles of the academic literature review, the research question and the use of rival theories to develop hypotheses and the practice of identifying the observable implications of those hypotheses. It considers the selection of data sources and modes of analysis to allow for valid analytical inferences to be drawn in respect of them. In doing so it considers, in brief, the importance of case study selection and variations such as single or multi case approaches. Finally it provides thoughts about the strengths and weaknesses associated with undertaking socio-legal and comparative legal research via a case study method, addressing frequent stumbling blocks encountered by legal researchers, as well as ways to militate them. It is written with those new to the method in mind.

Lisa Webley

    Sensitive interviews involve emotionally difficult topics which require participants to face issues that are deeply personal and possibly distressing. This paper draws together reflections concerning how researchers manage the challenges of conducting sensitive interviews, including the author’s own reflections concerning interviewing clinical negligence claimants. First, it examines the ethical guidelines that regulate sensitive research, and the challenges of obtaining informed consent and maintaining confidentiality. Ethical guidelines, however, provide limited assistance for ensuring the emotional care of research participants, and we also consider challenges that are not usually formally regulated. These include preparing for the interview, and then ensuring the emotional care of participants both during and after the interview itself. Sensitive research also raises deeper ethical issues concerning the negotiation of relations between researcher and participant, especially when this relationship is unequal. Finally, while previous research has generally focused on the need to take emotional care of research participants, less attention has been given to the emotional needs of researchers. It is argued that support systems for researchers are too often ad hoc, and that providing support is often not a priority of granting bodies, grant holders or supervisors, and that formal systems need to be put in place.

Angela Melville
Flinders Law School, Flinders University, Adelaide, South Australia. Email:

Darren Hincks
Flinders Law School, Flinders University, Adelaide, South Australia.

    In this article I argue that the major issue in taxonomies of interdisciplinary research is the problem of authority. In a project on the needs of Aboriginal Australians in inheritance, involving interdisciplinary research using law (in both common law and customary law form) and anthropology, issues of translateability and truth/validity arose. Issues for the Aboriginal people included problems of identifying the correct kin, dealing with the body, and protecting customary law information and secrecy, all matters which the customary law could handle but which were not recognised by Australian common law. Because the characterization of these matters in law is often characterized as a problem of authority the article explores the various different ways forms of authority in law and anthropology exist and how they might clash. Because the anthropology concerned was about Aboriginal Customary Law there seemed to be a double problem of authority which needed to be resolved in order to ensure that the connections between the disciplines were clear and the inheritance issues could be resolved.

Prue Vines
Professor, Director of First Year Studies, Co-Director, Private Law Research & Policy Group Faculty of Law, The University of New South Wales, Sydney, Australia. Email:

    With more and more information disclosed online and with open-access policies on the rise, legal academic research is becoming more accessible. The potential impact of this development is enormous, particularly in areas or jurisdictions where offline information is scarce and where access to subscription-based journals or books is limited or non-existing. Because the current literature lacks materials that guide researchers who conduct legal research while relying on open access, this article discusses where and how to find and select relevant academic books, journal articles, and working papers in the open access world. The resources, selection tools, and search strategies explained in this article particularly focus on finding open access sources in English. Consequently, this article assists researchers who rely on materials that are freely accessible because they lack access to books and to subscription-based journals outside of their own jurisdiction. The section on search strategy is relevant for researchers who aim to identify sources in an effective and efficient way.

Gijs van Dijck
Tilburg University. The author thanks Lukas Dziedzic, Marie-Claire Menting, Zihan Niu, Marnix Snel, Eric Tjong Tjin Tai and three anonymous reviewers for their valuable comments on a previous version of this article.Parts of section 2 and section 3 can also be found in Gijs van Dijck, ‘Eerste hulp bij juridisch bronnenonderzoek: waar te zoeken en hoe relevante bronnen te selecteren op het internet?’ (2015) Surinaams Juristenblad 29 (in Dutch). For a general overview of research strategies, see (last accessed 26 April 2016).

    Legal novices are generally not very well educated in the do’s and don’ts of empirical legal research. This article lays out the general principles and discusses the most important stumbling blocks on the way forward. The presentation starts at the formulation of a research question. Next, the methodology of descriptive research (operationalization and measurement, sampling and selection bias) is briefly addressed. The main part of the article discusses the methodology of explanatory research (causal inference, experimental and quasi-experimental research designs, statistical significance, effect size). Medical malpractice law is used as a central source of illustration.

Ben C.J. van Velthoven
Associate professor of Law and Economics at Leiden Law School. I wish to thank Nienke van der Linden, Ali Mohammad and Charlotte Vrendenbargh from Leiden Law School and two anonymous reviewers and the editors of this journal for helpful comments on earlier drafts.

Access_open On Experiments in Empirical Legal Research

Journal Law and Method, March 2016
Authors Prof. dr. Kees van den Bos and Mr. Liesbeth Hulst B.Sc., M.Sc.

    The current paper presents some observations on experiments in empirical legal research. The paper notes some strengths and weakness of the experimental method. The paper distinguishes between experiments run in controlled laboratory settings and experiments conducted in field settings and notes the different goals the different types of experiments generally have. The paper identifies important stumbling blocks that legal researchers who are new to setting up experiments may face and proposes that focusing the research in a constructive and independent way is important to overcome these problems. The necessity of running multiple studies to overcome other problems are discussed as well. When conducted in this way, experiments may serve an important role in the field of empirical legal studies and may help to further explore the exciting issues of law, society, and human behavior.

Prof. dr. Kees van den Bos

Mr. Liesbeth Hulst B.Sc., M.Sc.

    In this paper, an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism.
    The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research outside rule and case oriented comparative law offers varying approaches, which could usefully be applied in comparative research. Six methods have been identified: the functional method, the structural one, the analytical one, the law-in-context method, the historical method, and the common core method. Basically, it is the aim of the research and the research question that will determine which methods could be useful. Moreover, different methods may be combined, as they are complementary and not mutually exclusive.This paper focuses on scholarly comparative legal research, not on the use of foreign law by legislators or courts, but, of course, the methodological questions and answers will largely overlap.

Mark Van Hoecke
Professor of Comparative Law at Queen Mary University of London, and Professor of Legal Theory and Comparative Law at Ghent University

    Central to this contribution is the question whether Dworkin’s theory of constructive interpretation as a method of applying law for the judge, can be used as a method of legal-dogmatic research. Constructive interpretation is a method of legal interpretation that aims to find a normative unity in the diversity of rules that characterize a legal system. In order to find an answer to this question, the key elements of Dworkin’s theory are explained and applied to the author’s PhD research. Methodological difficulties that could give rise to problems when applying Dworkin’s theory, are investigated. In the end, the author concludes that since the judge and the scholar use quite the same methods when interpreting law, the principles of constructivism should fit legal research well, even though some aspects of Dworkin’s theory are difficult to operationalize in practice. As a leading notion however, constructivism constitutes a workable method of legal research.

Francisca Christina Wilhelmina de Graaf LL.M
Fanny de Graaf is a PhD candidate at the Faculty of Law, VU University.

mr.dr. Maria Geertruida IJzermans

    In this article I plead for utilitarianism as guideline for the editor. The article consists mostly of rebuttals of a number of traditional objections against utilitarianism. In particular (but not exclusively) the following objections are discussed:

    1. It is impossible to predict the consequences of legislative measures.

    2. Legislation should be evaluated procedurally (democratically), rather than by a substantive standard.

    3. Utilitarianism allows the sacrifice of the interests or even rights of some on behalf of those of others.

    4. Utilitarianism leads to results that are sometimes strongly counterintuitive.

    A substantial part of the article consists of a discussion of coherentism as method for, amongst others, normative reasoning.

Jaap Hage

    This paper raises two methodological questions from a philosophical perspective: (i) what is involved in a functionalist approach to law and (ii) what should be the focus of such an approach? To answer these questions, I will take two steps with both. To begin with, I argue that Pettit’s view on functionalist approaches may be made relevant for law; functionalist accounts target a virtual mechanism that explains why a system will be resilient under changes in either the system or its environment. Secondly, I make a distinction between two interpretations of his key-concept ‘resilience’, one in mechanical, the other in teleological terms. With regard to the second question I will take two steps as well. I argue why it does not make sense to ascribe wide functions to law, followed by a plea for a limited view on the function of law. This limited view is based on a teleological understanding of the law’s resilience. I argue that these two modes are interrelated in ways that are relevant for the interdisciplinary study of law.

Bert van Roermund

    In this article the Think-Aloud Method, a method used in problem solving research in Psychology, is used in legal research to gather data on how novices, expert beginners and experts read, structure and analyse legal decisions. In the Dutch legal system decisions by judges are a major source of law. So it is important that law students learn to read, structure and analyse legal decisions. However, reading and understanding a decision does not go without saying, it has to be learned. The data we gather using the Think-Aloud Method are used to improve instruction to support the effective and efficient learning of comprehending legal decisions. We describe the Think-Aloud Method, our experimental design and our approach for analysing the protocols.

Dr. Antoinette Muntjewerff
Dr. A. Muntjewerff is Assistant Professor of Legal Theory at the Faculty of Law at the University of Amsterdam. She has a Masters in Social Science, a Masters in Law, and a PhD in Computer Science & Law; she studied Computer Science (more specifically Artificial Intelligence).

    This article shows that the debate about the possibility and desirability of a rigid distinction between discovery and justification is being muddled because of differences and ambiguities in the way that different writers use the terms ‘discovery,’ ‘justification,’ and related terms. The article argues that merely distinguishing between ‘discovery’ and ‘justification’ is not precise enough, and that we should make a distinction between different elements within each of these contexts. I propose a six-fold classification, through which we can identify reasons, acts, and processes that play a role both in the context of discovery and in the context of justification. This six-fold classification enables us to move forward from debating whether discovery and justification can be rigidly separated, towards articulating how each element (reasons, acts, and processes) has a role to play in each of the contexts (discovery and justification), and how these elements and contexts are related.

Luiz Silveira

Sanne Taekema

Access_open Source-usage within doctrinal legal inquiry: choices, problems, and challenges

Journal Law and Method, June 2014
Keywords methodological challenges, doctrinal legal inquiry, source-usage, methodology, method
Authors Mr. Marnix Vincent Roderick Snel LLM, MA
AbstractAuthor's information

    This article provides an overview of the methodological challenges that scholars are confronted with in relation to use of legislation, case law and literature commentaries within doctrinal legal inquiry. Therefore it employs a systematic literature review and a supplementary explorative expert-consultation among legal scholars of Tilburg University. Although the scope of the research is still limited, it shows that doctrinal legal inquiry is subjected to more and other methodological challenges surrounding the source-usage than one might expect. This insight may contribute to the further development of the meta-discipline ’law and methodology’ and simultaneously allows for more methodological awareness among doctrinal legal scholars.

Mr. Marnix Vincent Roderick Snel LLM, MA
Marnix Snel is a PhD researcher at the Research Group ‘Methodology of law and legal scholarship’ at Tilburg University. I thank prof. Rob van Gestel, prof. Jan Vranken and Dr. Arie-Jan Kwak for their comments on earlier draft version of this article.
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