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Artikel

Access_open Blended Learning in Legal Education

Using Scalable Learning to Improve Student Learning

Journal Law and Method, May 2020
Keywords legal education, blended learning, Scholarship of Teaching and Learning, student learning
Authors Mr.dr. Emanuel van Dongen and Dr. Femke Kirschner
AbstractAuthor's information

    Education should be aimed at supporting student learning. ICT may support student learning. It also may help students to learn and increase their involvement and thus their efforts. Blended learning has the potential to improve study behaviour of students, thus becoming an indispensable part of their education. It may improve their preparation level, and as a result, face-to-face education will be more efficient and more profound (e.g. by offering more challenging tasks), lifting the learning process to a higher level. Moreover, the interaction between students and teachers may be improved by using ICT. A necessary condition to lift students’ learning to a higher (better: deeper) learning level is that all students acquire basic knowledge before they engage in face-to-face teaching. In a First-Year Course Introduction to Private Law, we recently introduced a Scalable Learning environment. This environment allows the acquiring and testing of factual knowledge at individual pace, in a modern and appealing way (independent of time and place). The link between offline and online education during face-to-face teaching is made by using Learning Analytics, provided by the Scalable Learning environment. After the implementation of Scalable Learning, a survey on its effect on learning has been performed by means of questionnaires. The results were compared at the beginning and at the end of the course, related to the approaches taken by teachers as well as to the exam results. This article presents the outcomes of this study.


Mr.dr. Emanuel van Dongen
Mr.dr. Emanuel van Dongen, Department of Law, Faculty of Law, Economics and Governance, Utrecht University.

Dr. Femke Kirschner
Dr. Femke Kirschner works as Educational Consultant at the Educational Development and Training, Utrecht University.
Artikel

Access_open Legal Philosophy as an Enrichment of Doctrinal Research Part I: Introducing Three Philosophical Methods

Journal Law and Method, January 2020
Keywords interdisciplinary research, reflective equilibrium, argumentation, philosophical analysis
Authors Sanne Taekema and Wibren van der Burg
AbstractAuthor's information

    In this article, we discuss a particular form of interdisciplinary legal research. We focus on a discipline that may be fruitfully combined with doctrinal research, namely philosophy. The aim of this article is to give an account of the methods of philosophy that are most relevant and useful for doctrinal legal scholars. Our focus is therefore mostly on legal philosophy and the philosophical subdisciplines closely related to it, such as political philosophy and ethics. We characterize legal philosophy in three complementary ways: as an activity, as insights, and as theories. We then discuss three methods of legal philosophy: argumentation analysis and construction, author analysis and reflective equilibrium. In the practice of research these three methods are usually combined, as we will show with various examples.


Sanne Taekema
Erasmus School of Law, Erasmus University Rotterdam

Wibren van der Burg
Erasmus School of Law, Erasmus University Rotterdam.
Artikel

Access_open Using Case Studies for Research on Judicial Opinions. Some Preliminary Insights

Journal Law and Method, November 2019
Keywords case study, judicial opinions, empirical legal research, qualitative methods, research on judicial opinions
Authors Mateusz Stępień
AbstractAuthor's information

    There is a pressing need to develop a research methodology for studying judicial opinions that goes beyond both dogmatic analyzes and the established positions developed within philosophy of law and legal theory (e.g. the hermeneutic and argumentative approaches). One possible way is to adopt or modify methodologies developed within empirically oriented social sciences. Most social science textbooks devoted to methodology of empirical research deal with case studies. So far, this research framework developed within the social sciences has not been applied directly to judicial opinions, though they have been used for some empirical legal research studies. Even et first sight, case study research would appear to have potential for use with judicial opinions. The aim of the paper is to answer the question, how and to what extent can case study methodology developed within the social sciences be fruitfully used to examine judicial opinions? The general answer is undoubtedly positive (case studies can bring new, non-trivial threads to the research methodology on judicial opinions), though with many serious and far-reaching reservations.


Mateusz Stępień
Assistant Professor, Department of Law and Administration, Jagiellonian University, Cracow, Poland.
Artikel

Access_open The Normative Framework of Labour Law

Journal Law and Method, September 2019
Keywords labour law, normative framework, inequality, social justice
Authors Nuna Zekić
AbstractAuthor's information

    This article looks at how normative questions, i.e. ‘what should the law be?‘, are approached in modern labour law scholarship. A distinction is made between internal and external normative frameworks for analysis, whereby internal frameworks are made up of principles, values or standards that are part of the law and the external frameworks are made up of theories outside of law. As a functional legal field, labour law can also benefit to a great deal from empirical research. However, the article argues that empirical facts by themselves have a limited normative value and that we need a normative framework in order to answer normative and evaluative questions. Therefore, the aim of the article is to review, clarify and evaluate the internal normative framework of labour law.


Nuna Zekić
Associate Professor, Department of Labour Law and Social Policy, Tilburg University.

    Legal doctrinal scholarship engages with the problems of legal practice: it systematizes, comments on, evaluates and debates what goes on in law. These activities do not occur in a vacuum: they are embedded in scholarly traditions and theories. This paper discusses the role of the theoretical frameworks used in legal research and has two related aims. First, it aims to provide some practical conceptualizations and guidelines regarding theoretical and normative frameworks that are useful to understand and conduct legal research. Second, it aims to investigate the relationships between different kinds of normative frameworks and their relationship to empirical work. In the second part, an argument is made for a pragmatist understanding of the interplay between normative theorizing and empirical study. How do these work together in judgments about the state of the law?


Sanne Taekema
Erasmus School of Law, Rotterdam; taekema@law.eur.nl.

    This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. The paper discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. The law as a normative discipline has its own constraints of justifiability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim.


Ioanna Tourkochoriti
School of Law, NUI Galway, Ireland.

    Both H.L.A. Hart and John Searle repeatedly refer to games in their work on the concept of law and the construction of social reality respectively. We can argue that this is not a coincidence, Hart’s analysis of law as a system of primary and secondary rules bears close resemblances to Searle’s analysis of social reality as a system of regulative and constitutive rules and the comparison to games leads to interesting insights about the ontology of law and legal epistemology. The present article explores both the institutional theory of law that can be devised on the basis of the work of Hart and Searle, the method of analytical philosophy they employ and the particular consequences that can be deduced for legal research from the resulting legal theory.


Arie-Jan Kwak
Dr. A.J. Kwak, Faculty of Law, Leiden University, Leiden, The Netherlands.

    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

    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: angela.melville@flinders.edu.au.

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

    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.
Artikel

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.
Abstract

    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.

    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).
Artikel

Access_open Legal Dogmatics and Academic Education

Journal Law and Method, 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, 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, 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, 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.
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