Search result: 73 articles

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    Public law is sometimes said to deal with distributive justice. Such allocation issues are at least very dominant when public authorities grant only a limited number of public rights (authorizations, subsidies, etc.) and the number of applicants exceeds this maximum. The characteristics common to these ’limited public rights’ raise the question whether there are some general allocation rules applying to any allocation of limited public rights. This article shows how economic allocation theory can be helpful in constructing general allocation rules as a corollary of general legal principles. Allocation theory turns out to provide for general concepts and results clarifying general allocation rules and revealing mutual connections. Extending this allocation perspective from limited public rights to public law in general requires the hidden allocation issues in public law to be unveiled.


Johan Mr.dr. Wolswinkel
C.J. Wolswinkel LLM MSc PhD is Assistant Professor at the VU University Amsterdam and participates in the research programme Public Contracts: Law and Governance of the VU Centre for Law and Governance. This article expands some methodological issues developed in his PhD thesis De verdeling van schaarse publiekrechtelijke rechten. Op zoek naar algemene regels van verdelingsrecht (The Hague: Boom Juridische uitgevers 2013).

    This article addresses the problem of qualitative interviewing in the field of legal studies, and more precisely the practice of interviewing judges. In the last five years the authors of this article conducted two different research projects which involved interviewing judges as a research method. In this article the authors share their experience and views on the qualitative interviewing method, and provide the reader with an overview of the ‘ins’ and ‘outs’ attached to this tool, but also its advantages and disadvantages.


Urszula Jaremba
Urszula Jaremba is an Assistant Professor of EU Law at Erasmus School of Law (Erasmus University Rotterdam, the Netherlands)

Elaine Dr. Mak
Elaine Mak is Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law (Erasmus University Rotterdam, the Netherlands)

    Vrijwel alle rechtenstudenten krijgen vroeg of laat in hun studie de opdracht om eens een kijkje te nemen bij de rechtbank. Er is echter niet of nauwelijks literatuur over hoe ze dat zouden kunnen aanpakken. Dit artikel beoogt in die leemte te voorzien. Het doel is om studenten methodologische bagage mee te geven, waarmee een observatieopdracht op een hoger niveau kan worden getild. Promovendi of andere onderzoekers die observatieonderzoek willen verrichten, kunnen daar ook hun voordeel mee doen.


Nienke Doornbos
Met dank aan Nina Holvast, Antoinette Muntjewerff en Rob Schwitters voor hun suggesties ter verbetering van een eerdere versie van dit artikel.
Artikel

Access_open Legal Dogmatics and Academic Education

Journal Law and Method, February 2013
Keywords legal dogmatics, theory design, academic education, empirical cycle
Authors Jan Struiksma
AbstractAuthor's information

    Previously a model was developed whereby the evolution of dogmatic legal theory design can be made more explicit. This concerns, amongst other aspects, the application of the empirical cycle constructed by De Groot, which forms the final element of an evolution of the application of mundane knowledge to theory design. The starting point of this article is that this evolution must be ‘repeated’ during an academic study in empirical subjects. The objective is to investigate how this is done in the legal dogmatic education.


Jan Struiksma
Jan Struiksma is professor of administrative law at the Faculty of Law, Free University Amsterdam.
Artikel

Access_open Skeptical Legal Education

How to Develop a Critical Attitude?

Journal Law and Method, February 2013
Keywords academic learning, skepticism, Oakeshott, judgment, Critique
Authors Bart van Klink and Bald de Vries
AbstractAuthor's information

    Law teachers at the university want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted? In this article we intend to elucidate the role that critical thinking may play in legal education. We will introduce the idea of skeptical legal education, which is to a large extent based on Michael Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential. Subsequently, the article presents a teaching experiment, where students, based on self-organization, study and discuss basic texts in order to encourage critical thinking.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.

Bald de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.
Artikel

Access_open Empirical Facts: A Rationale for Expanding Lawyers’ Methodological Expertise

Journal Law and Method, February 2013
Keywords empirical facts, research methods, legal education, social facts
Authors Terry Hutchinson
AbstractAuthor's information

    This article examines the importance of the social evidence base in relation to the development of the law. It argues that there is a need for those lawyers who play a part in law reform (legislators and those involved in the law reform process) and for those who play a part in formulating policy-based common law rules (judges and practitioners) to know more about how facts are established in the social sciences. It argues that lawyers need sufficient knowledge and skills in order to be able to critically assess the facts and evidence base when examining new legislation and also when preparing, arguing and determining the outcomes of legal disputes. For this reason the article argues that lawyers need enhanced training in empirical methodologies in order to function effectively in modern legal contexts.


Terry Hutchinson
Terry Hutchinson is Associate Professor, Law School at QUT Faculty of Law.
Artikel

Access_open Alternative Methodologies: Learning Critique as a Skill

Journal Law and Method, February 2013
Keywords governmentality, methodology, method, skill
Authors Bal Sokhi-Bulley
AbstractAuthor's information

    How can we teach critical legal education? The article tackles this key question by focusing on the role of methodology in legal education and research. I argue that critical legal education requires marketing methodology as a ‘skill’, thereby freeing it from what students and researchers in Law often view as the negative connotations of ‘theory’. This skill requires exploring ‘alternative methodologies’ – those critical perspectives that depart from legal positivism and which Law traditionally regards as ‘peripheral’. As an example, the article explores the Foucauldian concept of governmentality as a useful methodological tool. The article also discusses the difference between theory, methodology and method, and reviews current academic contributions on law and method(ology). Ultimately, it suggests a need for a ‘revolt of conduct’ in legal education. Perhaps then we might hope for students that are not docile and disengaged (despite being successful lawyers) but, rather, able to nurture an attitude that allows for ‘thinking’ (law) critically.


Bal Sokhi-Bulley
Bal Sokhi-Bulley is Lecturer in Law atQueen’s University in Belfast.
Diversen

Access_open Academic Learning

Asking Questions and Judging Answers

Journal Law and Method, February 2013
Authors Lisanne Groen
Author's information

Lisanne Groen
Lisanne Groen is assistant professor at VU University Amsterdam.
Artikel

Access_open ‘I’d like to learn what hegemony means’

Teaching International Law from a Critical Angle

Journal Law and Method, February 2013
Keywords Bildung, cultural hegemony, international law, teaching
Authors Christine E.J. Schwöbel-Patel
AbstractAuthor's information

    This contribution explores the possibility of teaching international law in a critical fashion. I examine whether the training which is taking place at law schools is establishing and sustaining a cultural hegemony (a term borrowed from Antonio Gramsci). I ask whether the current focus on technical practice-oriented teaching is a condition which should be questioned, even disrupted? In my thoughts on reorientations of this culture, a central term is the German word Bildung. Bildung refers to knowledge and education as an end in itself (John Dewey) as well as an organic process (Hegel), and therefore incorporates a wider understanding than the English word ‘education’. In terms of international law, a notion of Bildung allows us to acknowledge the political nature of the discipline; it may even allow us to ‘politicize’ our students.


Christine E.J. Schwöbel-Patel
Christine E.J. Schwöbel-Patel is Lecturer in Law at University of Liverpool.
Artikel

Access_open The Role of Hierarchy, Example, and Language in Learning

A Confrontation between a Liberal and a ‘Critical’ Understanding of Legal Education

Journal Law and Method, January 2013
Keywords skeptical legal education, academic learning, Critique, Knowledge, CLS, liberalism, power
Authors Bart van Klink
AbstractAuthor's information

    In The Voice of Liberal Learning, Michael Oakeshott characterizes learning as a strictly non-instrumental activity. In schools and universities, knowledge is acquired for its own sake. Obviously, this liberal understanding of education differs fundamentally from a ‘critical’ notion of education as advocated by Duncan Kennedy and other members of the CLS movement. From a ‘critical’ perspective, Oakeshott’s conception may be seen as yet another attempt – typical for liberalism and conservatism alike – to depoliticize the process of knowledge production and reproduction and to conceal (and thereby to strengthen and legitimize) its effects on the distribution of power, wealth, status and so forth in society. In this paper, the author will confront both views with each other, especially within the context of legal education. The general purpose is to develop a notion of skeptical legal education, which is to a large extent based on Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.
Artikel

Access_open A Plea for Rigorous Conceptual Analysis as a Central Method in Transnational Law Design

Offer and Acceptance as Juridical Acts in the Draft Common Frame of Reference as a Case in Point

Journal Law and Method, January 2013
Keywords DCFR, Conceptual Analysis, Juridical Acts, Transnational Law Design
Authors Rudolf Rijgersberg and Hester van der Kaaij
AbstractAuthor's information

    Although shared legal problems are generally easily identified in transnational law design, it is considerably more difficult to design frameworks that transcend the peculiarities of local law univocally. The following exposition is a plea for giving more prominence to rigorous conceptual analysis in transnational law design in order to disambiguate the terms used in such frameworks. It does this by taking the formation of contracts in the model rules of the Draft Common Frame of Reference (DCFR) as a case in point. A conceptual analysis of the basic legal notion ‘juridical act’ in its model rules for contract law shows that the DCFR allows for two mutually conflicting interpretations of contract formation that are by no means fictional. A rigorous conceptual analysis of basic legal notions in the formative stages of transnational law design would have prevented a conflation of two legal traditions resulting in an ambiguous legal framework. As such it is an indispensable method for achieving a univocal interpretation of the legal end product.


Rudolf Rijgersberg
Rudolf Rijgersberg is assistant professor Methods and Foundations of Law at Maastricht University.

Hester van der Kaaij
Hester van der Kaaij is promovendus PhD candidate in Legal Theory at Maastricht University.
Artikel

Access_open Kuhn and Legal Research

A Reflexive Paradigmatic View on Legal Research

Journal Law and Method, January 2013
Keywords legal paradigm, scientific revolution, social theory, reflexivity, responsibility, risk society, cosmopolitanism
Authors Ubaldus de Vries
AbstractAuthor's information

    This article seeks to describe a paradigmatic view on legal research, based on the thought processes underlining Kuhn’s The Structure of Scientific Revolutions, in particular as how revolutionary change is coming about through a reflexive attitude towards developments that do not fit in the prevailing assumptions in an existing paradigm or research methodology. It allows for a description of ‘normal legal research’ and the assumptions upon which normal legal research is based. It also allows for an explanation as to how these assumptions are no longer exclusively valid but carry with them limitations in the face of structural developments at the level of society. An important feature of the paradigmatic view, then, is that it is able to take issue with these developments by incorporating social theory in our understanding of law.


Ubaldus de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.

Rob van Gestel
Rob van Gestel is professor of Theory and Methods of Legislation at Tilburg University.

Bald de Vries
Bald de Vries is universitair docent Rechtstheorie aan de Faculteit Rechtsgeleerdheid van de Universiteit Utrecht en tevens redactielid van Recht en Methode.
Artikel

Access_open Relational Jurisprudence

Vulnerability between Fact and Value

Journal Law and Method, February 2012
Keywords fact/value separation, vulnerability, relational jurisprudence, empirical methodology, normative methodology
Authors Maksymilian Del Mar
AbstractAuthor's information

    Relational jurisprudence is an approach to law that situates it in five relational contexts: (1) relations between individuals; (2) relations between individuals and communities; (3) relations between communities; (4) relations between individuals or communities on the one hand, and institutions on the other; and (5) relations between institutions. Thus, part of what makes relational jurisprudence distinctive is its object: the study of law in the context of certain relations, including investigating what factors affect and influence the quality of those relations. Relational jurisprudence is also distinctive, however, in its method. One of its methodological commitments is to avoid the dichotomy, without losing the benefits of a distinction, between facts and values. In trying to avoid this dichotomy, the approach identifies and uses devices that have both factual and evaluative dimensions, called here ‘factual-evaluative complexes’. These devices are then used to investigate the quality of different relations. One such device is ‘vulnerability’. The argument of this paper is that at least some of law can be profitably understood as managing vulnerability, i.e. recognising some vulnerabilities as worthy of protection and others not, or balancing the protection of different vulnerabilities in different relational contexts. Avoiding the dichotomy while retaining the usefulness of the distinction between facts and values in the above-outlined way means that we ought to employ a mix of empirical and normative methodology in the study of law.


Maksymilian Del Mar
Maksymilian Del Mar is lecturer in Legal and Social Philosophy, Department of Law, Queen Mary University of London.
Artikel

Access_open Grondslagen en methoden van juridisch onderwijs

Journal Law and Method, February 2012
Keywords onderwijsmethode, theorieconcepties, Europeanisering, methodologische dilemma’s
Authors René Foqué
AbstractAuthor's information

    This article aims at elucidating some methodological dilemmas which should be taken seriously in legal education. It also aims at articulating the process of how these dilemmas emerged both historically and philosophically. The article starts with the observation that our Western legal systems are rooted in a specific theoretical tradition which can be described as being twofold. In a first already ancient (pre-philosophical) conception, theory finds its nexus both in experience and in narrativity, whereas a more modern conception of theory focuses on logical and conceptual coherence, building a system of professional knowledge. The author argues for a combination of both theoretical conceptions as complementary cornerstones of legal educational programs.The twofold theoretical background of our Western legal tradition can offer us a welcome and fruitful basis for dealing with some important methodological dilemmas: an anascopic (from action to institution) vs a katascopic (from institution to action) approach; deductive vs inductive reasoning; problem-oriented thinking vs systems thinking; case based/case oriented vs doctrinal/conceptual thinking. The author argues for a dialectical complementarity between the respective poles of these dilemmas.Finally, the author argues for introducing – already in an early stage of the program –European Union legal thinking as a challenging laboratory ‘in action’ for searching a reflective equilibrium in dealing with the aforementioned methodological dilemmas.


René Foqué
René Foqué is emeritus hoogleraar in de rechtsfilosofie en rechtstheorie aan de Faculteiten Rechtsgeleerdheid van de Katholieke Universiteit te Leuven en de Erasmus Universiteit te Rotterdam. Aan het European Inter University Centre for Human Rights and Democratisation te Venetië doceert hij philosophy of human rights.
Artikel

Access_open Hoe moet recht worden onderwezen?

Journal Law and Method, February 2012
Keywords curriculum rechtenstudie, aard van het recht, positief recht, (hulp)wetenschappen
Authors Jaap Hage
AbstractAuthor's information

    The central issue of this paper is to outline a scientifically oriented course in law. Most actual courses focus on positive law, and the main conclusion of this paper is that this is wrong. This conclusion is based on the premise that law is not by definition positive law, but the answer to the question which rules should be enforced by collective means. This premise is argued in the full paper.Positive law is law to the extent that it should be enforced by collective means, and not by definition. Therefore a scientific course in law should pay some attention to positive law, but should not assign it the dominant place in the curriculum which it presently tends to have.To make this abstract idea more concrete, some proposals are made for a law curriculum. The starting point is that the law bachelor should only address positive law where this is necessary for exercises in legal reasoning. Moreover it should address the viable fundamental visions on the nature of law, the main theories about normative reasoning (main currents in ethics), and the facts which are relevant in the light of these normative theories for the question which norms should be enforced by collective means. These facts include both positive law and the results of the different sciences (e.g. psychology, sociology, economy, and biology) which are relevant to answer the normative question. Because there are too many scientific results to take in during a bachelor course, the study of the sciences should be replaced by an introduction to scientific method, which allows lawyers to evaluate the outcomes of scientific research. Finally, the bachelor course should also address ‘generic positive law’, the main questions which must be answered by legal systems and the most viable answers to these questions.The master phase of the curriculum should, for those lawyers who want to practice the positive law of a particular jurisdiction, be filled with the detailed study of the relevant positive law.


Jaap Hage
Jaap Hage is hoogleraar Algemene rechtsleer aan Maastricht University.
Artikel

Access_open Exciting Times for Legal Scholarship

Journal Law and Method, February 2012
Keywords legal methodology, law as an academic discipline, ‘law and …’-movements, legal theory, innovative and multiform legal scholarship
Authors Jan Vranken
AbstractAuthor's information

    Until recently, legal-dogmatic research stood at the undisputed pinnacle of legal scientific research. The last few years saw increasing criticism, both nationally and internationally, levelled at this type of research or at its dominant role. Some see this as a crisis in legal scholarship, but a closer look reveals a great need for facts, common sense, and nuance. Critics usually base their calls for innovation on a one-dimensional and flawed image of legal-dogmatic research. In this article, the author subsequently addresses the various critical opinions themselves and provide an overview of the innovations that are proposed. He concludes that there are a lot of efforts to innovate legal scholarship, and that the field is more multiform than ever, which is a wonderful and unprecedented state of affairs. This multiformity should be cherished and given plenty of room to develop and grow, because most innovative movements are still fledgling and need time, sometimes a lot of time, to increase in quality. It would be a shame to nip them in the bud now, merely because they are still finding their way. In turn, none of these innovative movements have cause to disqualify legal-dogmatic research, as sometimes happens (implicitly), by first creating a straw-man version of the field and then dismissing it as uninteresting or worse. That only polarises the discussion and gains us nothing. Progress can only be achieved through cooperation, with an open mind towards different types of legal research and a willingness to accept a critical approach towards their development. In the end, the only criterion that matters is quality. All types of research are principally subject to the same quality standards. The author provides some clarification regarding these standards as well.


Jan Vranken
Jan Vranken is hoogleraar Methodologie van het privaatrecht aan de Universiteit van Tilburg.
Artikel

Access_open Legal Doctrine As a Non-Normative Discipline

A Refinement of Niiniluoto’s and Aarnio’s Distinction between Norm-Descriptions, Norm-Contentions and Norm-Recommendations

Journal Law and Method, January 2012
Keywords legal doctrine as a science, non-normative discipline, norm-descriptions, norm-contentions, norm-recommendations, Aarnio and Niiniluoto
Authors Anne Ruth Mackor
AbstractAuthor's information

    In this article, the author argues that legal doctrine is not more normative than other scientific disciplines. This argumentation is built on the claim that the distinction between descriptive and normative statements is too simple to analyze the nature of legal doctrine. In the author’s view, a more detailed analysis of legal statements helps to achieve a better and more accurate characterization of legal doctrine as a science. For this purpose, the author builds on the distinction of Aarnio and Niiniluoto between norm-descriptions, norm-contentions and norm-recommendations. She argues that legal doctrine consists mainly of empirical and non-empirical norm-descriptions and that it can therefore be considered as a non-normative discipline.


Anne Ruth Mackor
Anne Ruth Mackor is professor of professional ethics, in particular of legal professions, at the Faculty of Law and Socrates professor of professional ethics at the Faculties of Theology and Philosophy at the University of Groningen.

Rob van Gestel
Prof. dr. Rob van Gestel is hoogleraar Theorie en methode van wetgeving aan de Tilburg Law School en voorzitter van de Research Group for Methodology of Law and Legal Research. Hij is tevens redactielid van Recht en Methode.
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