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Artikel

Access_open Teaching Comparative Law, Pragmatically (Not Practically)

Special Issue on Pragmatism and Legal Education, Sanne Taekema & Thomas Riesthuis (eds.)

Journal Law and Method, October 2020
Keywords comparative legal studies, legal education, pragmatism
Authors Alexandra Mercescu
Author's information

Alexandra Mercescu
Alexandra Mercescu, Ph.D is lecturer at the Department of Public Law, University of Timisoara, Romania.
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 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.
Redactioneel

Access_open Special Issue on Active Learning and Teaching in Legal Education

Editorial

Journal Law and Method, February 2019
Authors Bart van Klink, Hedwig van Rossum and Bald de Vries
Author's information

Bart van Klink
Bart van Klink is Professor of Legal Methodology, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

Hedwig van Rossum
Hedwig van Rossum is lecturer-researcher in the Department of Legal Theory at the Vrije Universiteit Amsterdam, Amsterdam, The Netherlands.

Bald de Vries
Bald de Vries is lecturer at the Department of Jurisprudence, Constitutional and Administrative Law of the Faculty of Law (JCAL), Utrecht University, Utrecht, The Netherlands.

    When it comes to learning, mapping turns out to be an effective tool. There is a wide variety of information maps, such as mind maps, argument maps and concept maps. This paper develops a teaching method that puts mapping at the centre of a seminar. It builds upon ideas of cognitivism and constructivism. The proposed didactic method incorporates a new variant of mapping, Basic Building Blocks Map (BBB Map), with a specific style of teaching. It is argued that this teaching method leads to engaged and active student participation. By dividing the subject up into small pieces and searching for answers to questions interactively, the student will learn more effectively. The paper concludes by providing teachers tools to put the method of BBB Mapping into practice.


Renetta Bos
Renetta Bos is a lecturer at the Institute of Jurisprudence, Constitutional and Administrative Law (Utrecht University). She has graduated with a number of qualifications in law and philosophy: Jurisprudence and Philosophy of Law (Law, Leiden University), Philosophy of Management and Organisation (Philosophy, VU Amsterdam) and Philosophy of Law (Philosophy, Leiden University). In addition, she has studied at the Friedrich-Schiller-Universität, Jena (Germany). In her tutorial teaching, she makes use of her experience gained at the Erasmus University Rotterdam and the Free University of Amsterdam. She thanks Hedwig van Rossum, Bald de Vries, Vera van de Glind, and an anonymous referee from the journal for useful comments on earlier versions of this article.
Artikel

Access_open Teaching Socio-Legal Research Methodology: Participant Observation. Special Issue on Active Learning and Teaching in Legal Education

Journal Law and Method, January 2019
Keywords Participant observation, sociolegal research, methodology, teaching
Authors Marc A. Simon Thomas
AbstractAuthor's information

    The basics of how to conduct participant observation are not taught in law schools. This is striking because this methodology has become a common feature of qualitative research and could be very useful in sociolegal research. For those interested in studying ‘law in practice’ instead of ‘law in the books’, qualitative research methods like participant observation are inevitable. However, participant observation is, at best, secondary in the literature on qualitative research in the sociolegal discipline, while there is no guidance on how to conduct this technique whatsoever.Therefore, this article is written with two audiences in mind: It should serve as a useful reference and guide for those who teach qualitative research methods in legal education and who are looking to enhance their knowledge and skills concerning participant observation; it is also meant to serve as a basic primer for the beginning sociolegal researcher who is about to become a participating observer for the first time.


Marc A. Simon Thomas
Utrecht University, School of Law, Institute of Jurisprudence, Constitutional and Administrative Law, Legal Theory; m.a.simonthomas@uu.nl.
Boekbespreking

Access_open Kestemont, Handbook on Legal Methodology. A Review

(Book review of Kestemont, L. (2018). Handbook on Legal Methodology. From Objective to Method. Cambridge: Intersentia, xiii + 97 pp.)

Journal Law and Method, January 2019
Authors Wibren van der Burg
Author's information

Wibren van der Burg
Wibren van der Burg, Erasmus School of Law, Erasmus University of Rotterdam and School of Law, Queen Mary University of London.

    In legal education, criticism is conceived as an academic activity. As lecturers, we expect from students more than just the expression of their opinion; they have to evaluate and criticize a certain practice, building on a sound argumentation and provide suggestions on how to improve this practice. Criticism not only entails a negative judgment but is also constructive since it aims at changing the current state of affairs that it rejects (for some reason or other). In this article, we want to show how we train critical writing in the legal skills course for first-year law students (Juridische vaardigheden) at Vrije Universiteit Amsterdam. We start with a general characterization of the skill of critical writing on the basis of four questions: 1. Why should we train critical writing? 2. What does criticism mean in a legal context? 3. How to carry out legal criticism? and 4. How to derive recommendations from the criticism raised? Subsequently, we discuss, as an illustration to the last two questions, the Dutch Urgenda case, which gave rise to a lively debate in the Netherlands on the role of the judge. Finally, we show how we have applied our general understanding of critical writing to our legal skills course. We describe the didactic approach followed and our experiences with it.


Bart van Klink
Bart van Klink is Professor of Legal Methodology, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

Lyana Francot
Lyana Francot is Associate Professor of Legal Theory, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

    This article builds upon the work of James Boyd White as well as on Shelley’s ‘A defence of Poetry’ (1840) and reports upon an experiment in which students use poetry as a means to understand philosophical texts. The experiment had a double goal: first, I sought to challenge students in reading a philosophical text differently with an aim to better understand the text. The second goal was to challenge students to think about the text differently, more critically and analyse its relevance for the contemporary world. In the end, using imagination, is the claim, contributes to students finding their own ‘voice’.


Bald de Vries
Dr Bald de Vries is lecturer at the Department of Jurisprudence, Constitutional and Administrative Law of the Faculty of Law (JCAL), Utrecht University, Utrecht, The Netherlands, u.devries@uu.nl.

    This article introduces the concepts of play and playfulness within the context of legal-philosophical education. I argue that integrating play and playfulness in legal education engages students and prepares them for dealing with the perpetual uncertainty of late modernity that they will face as future legal professionals. This article therefore aims to outline the first contours of a useful concept of play and playfulness in legal education. Drawing on the work of leading play-theorists Huizinga, Caillois, Lieberman and Csikszentmihalyi, play within legal education can be described as a (1) partly voluntary activity that (2) enables achievement of learning goals, (3) is consciously separate from everyday life by rules and/or make believe, (4) has its own boundaries in time and space, (5) entails possibility, tension and uncertainty and (6) promotes the formation of social grouping. Playfulness is a lighthearted state of mind associated with curiosity, creativity, spontaneity and humor. Being playful also entails being able to cope with uncertainty. The integration of these concepts of play and playfulness in courses on jurisprudence will be illustrated by the detailed description of three play and playful activities integrated in the course ‘Introduction to Legal Philosophy’ at the Vrije Universiteit Amsterdam.


Hedwig van Rossum
Mr. H.E van Rossum, LL.M., is a lecturer-researcher in the Department of Legal Theory at the Vrije Universiteit Amsterdam and has been teaching the freshman course ‘Introduction to Legal Philosophy’ since 2011.

    Jurisprudence is a domain related to terms such as rules, morality, principles, equality, justice, etc. Legal scholars have to teach the meaning of these terms. However, these are not terms, one can comprehend by just reading their standard definition. These are terms one must digest and learn to use. My argument is that literature or the law and literature movement can be used as a tool in order to explain and discuss these terms. For instance, beyond simply explaining or teaching legal positivism and natural law, Antigone helps students reflect upon the distinction between them. To cite another example, reading Nana can help students think about sex-workers in a way they would never think before. Moreover, the literature can be a useful means in teaching critical movements in law, such as critical legal studies, feminist legal theory and critical race theory. Finally, the terms I stated at the beginning are not only terms of jurisprudence, they are terms we should use properly in order to construct a healthy legal environment. Therefore, to get students comprehend these terms is a crucially important aim. I argue that literature can be a tool in order to achieve this aim.


E. Irem Aki
Dr. E.I. Aki was a research assistant at Ankara University Faculty of Law until 2017; iremaki@gmail.com.
Artikel

Access_open Educating the Legal Imagination. Special Issue on Active Learning and Teaching in Legal Education

Journal Law and Method, October 2018
Keywords imagination, artefact, active learners, metaphors
Authors Maksymilian Del Mar
AbstractAuthor's information

    This paper presents a basic model of the imagination and offers pedagogical resources and activities for educating three related abilities to imagine. The basic model is that to imagine is to combine the process of awareness, framing and distancing, and the process of, simultaneously actively participate, by doing things with and thanks to artefacts. Artefacts, in turn, are fabricated forms (here, forms of language) that signal their own artifice and invite us to do things with them, across a spectrum of sensory, kinetic, and affective abilities. Modelled in this way, imagination plays a crucial role in legal reasoning, and is exemplified by the following kinds of artefacts in legal discourse: fictions, metaphors, hypothetical scenarios and figuration. These artefacts and their related processes of imagination are vital to legal reasoning at many levels, including the level of the individual lawyer or judge, the level of interaction in courtrooms, and the level of legal language over time. The paper offers nine learning activities corresponding to educating three abilities in the legal context: 1) to take epistemic distance and participate; 2) to generate alternatives and possibilities; and 3) to construct mental imagery.


Maksymilian Del Mar
Department of Law, Queen Mary University of London.

    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.

    It is often claimed in the media and in political and academic debates that more law nurtures more research, which in turn should generate more information. However, the question researchers are left with is: What does this mean for comparative law and its methods? This paper takes the context of European consumer sales law as an example of the web of rules applicable at both European and national level. In this context, the main idea behind this article is that looking at law and research as data to be built upon and used in further analysis can revolutionise the way in which legal research is understood. This is because current research methods in European consumer sales law fall short of systematically analysing the essential weaknesses of the current regulation system. In this contribution, I argue that the volume of regulation in European consumer law is large enough for it to be considered Big Data and analysed in a way that can harness its potential in this respect. I exemplify this claim with a case-study consisting in the setting up of a Convergence Index that maps the converging effect of harmonizing policies adopted by the European legislator in the field of


Catalina Goanta
Assistant Professor of Private Law, Maastricht Law School, Maastricht University, The Netherlands.

    The nexus between religion and law is an important subject of comparative law. This paper, however, finds that the majority of comparative theorists rely on the immanent frame; that legal legitimacy can and should be separated from any objective truth or moral norm. But the fact of the matter is many constitutional systems were founded based on a complicated mixture between the transcendent and immanent frame. Whereas in the immanent frame, human actions are considered self-constituting, in the transcendent frame, human actions were judged in light of their correspondence to higher, divine laws and purposes.
    This article argues that it is not sufficient for comparative theorists to offer a perspective from the immanent frame. Comparative theorists in law and religion should understand at least basic religious doctrines and know how to systematize those doctrines. In other words, comparative theorist of law and religion should work within the transcendent frame. By using a transcendent frame, comparative theorists will be able to excavate the underlying structure of religion, and so they will understand better how theological ideas influence law. Furthermore, this paper will also present a thought experiment in applying the transcendent frame in comparative constitutional studies.


Stefanus Hendrianto
Stefanus Hendrianto is a scholar at Boston College, School of Theology and Ministry. In recent years, he has been a visiting professor at Santa Clara University School of Law (2013-2015) and a guest scholar at the Kellogg Institute for International Studies at the University of Notre Dame (2015-2016). He holds a Ph.D. degree from the School of Law, University of Washington, Seattle and LLM degree from Utrecht University, Netherlands, in addition to his LLB degree from Gadjah Mada University, Indonesia.

    Comparative methodology is an important and a widely used method in the legal literature. This method is important inter alia to search for alternative national rules and acquire a deeper understanding of a country’s law. According to a survey of over 500 Dutch legal scholars, 61 per cent conducts comparative research (in some form). However, the methodological application of comparative research generally leaves much to be desired. This is particularly true when it comes to case selection. This applies in particular to conceptual and dogmatic research questions, possibly also allowing causal explanations for differences between countries. This article suggests that the use of an interdisciplinary research design could be helpful, and Hofstede’s cultural-psychological dimensions can offer a solution to improve the methodology of selection criteria.


Dave van Toor
D.A.G. van Toor, PhD LLM BSc works as a researcher and lecturer in Criminal (Procedural) Law and Criminology at the Universität Bielefeld.

    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.

    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

    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
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