Search result: 69 articles

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Sanne Taekema
Prof. mr. dr. Sanne Taekema is professor of jurisprudence, Erasmus School of Law, Rotterdam.

Thomas Riesthuis
Dr. Thomas Riesthuis is ssistant professor of jurisprudence, Utrecht University.
Artikel

Access_open GMO Regulation in Crisis – The Experimental Potential of Regulation (EU) 2020/1043 on Covid-19 in Addressing Both a Crisis and a ­Pandemic

Special Issue Experimental Legislation in Times of Crisis Sofia Ranchordás & Bart van Klink (eds.)

Journal Law and Method, September 2021
Keywords experimental legislation, regulatory knowledge, GMO regulation, evaluation
Authors Lonneke Poort and Willem-Jan Kortleven
AbstractAuthor's information

    In this article, we analyse Regulation (EU) 2020/1043 on Covid-19 against the backdrop of the current deadlock in EU-regulation of genetically modified organisms (GMOs). We build on temporary and experimental legislation scholarship and employ a normative framework of regulatory knowledge. The Covid-19 Regulation aims at speeding up the development of GMO-based Covid-19 treatments or vaccines by temporarily suspending requirements that otherwise would have made for time-consuming and burdensome authorization processes. Although the Regulation lacks an explicit experimental purpose, we hypothesize that experiences with its functioning may be utilized in evaluation processes serving attempts to change the GMO legal framework. As such, it may fulfil a latent experimental function. We reflect on the types of knowledge that are relevant when evaluating experimental legislation and developing regulation more generally and argue that the inclusion of social knowledge is pertinent in dealing with complex issues such as GMO regulation. Experimental law literature focuses on gathering evidence-based knowledge about the functioning of legislation but virtually neglects knowledge about different experiences and value appreciations of various societal actors and social-contextual mechanisms. We propose that such social knowledge be included in the design of experimental legislation and that evaluation be approached bottom-up instead of top-down.


Lonneke Poort
Lonneke Poort is Associate Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law.

Willem-Jan Kortleven
Willem-Jan Kortleven is Assistant Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law, Rotterdam.
Artikel

Access_open Time and Law in the Post-COVID-19 Era: The Usefulness of Experimental Law

Special Issue Experimental Legislation in Times of Crisis, Sofia Ranchordas & Bart van Klink (eds.)

Journal Law and Method, September 2021
Keywords COVID-19, time and law, law-making, parliament, government, legal certainty
Authors Erik Longo
AbstractAuthor's information

    The COVID-19 pandemic swept the world in 2020 impelling us to reconsider the basic principles of constitutional law like the separation of power, the rule of law, human rights protection, etc. The two most pressing legal issues that have attracted the attention of legal scholars so far are, on the one hand, the different regulatory policies implemented by governments and, on the other, the balance among the branches of government in deciding matters of the emergency. The pandemic has determined a further and violent acceleration of the legislature’s temporal dimension and the acknowledgement that, to make legislation quicker, parliament must permanently displace its legislative power in favour of government. Measures adopted to tackle the outbreak and recover from the interruption of economic and industrial businesses powerfully confirm that today our societies are more dependent on the executives than on parliaments and, from a temporal perspective, that the language of the law is substantially the present instead of the future. Against this background, this article discusses how the prevalence of governments’ legislative power leads to the use of temporary and experimental legislation in a time, like the pandemic, when the issue of ‘surviving’ becomes dominant.


Erik Longo
Prof. Dr. Erik Longo is associate professor of Constitutional Law at the University of Florence.
Artikel

Access_open Law Schools and Ethics of Democracy

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

Journal Law and Method, August 2021
Keywords legal education, democracy, pragmatism
Authors Michal Stambulski
AbstractAuthor's information

    Contemporary critical analyses of legal education indicate that legal education is undemocratic as it is based on a discipline that produces subjects who obey hierarchies, are free from the habit of criticism and are ready to self-sacrifice for promotion in the social hierarchy. At the same time, critical analyses offer the very passive vision of the law student as merely ‘being processed’ through the educational grinder. Paradoxically, in doing so they confirm the vision they criticize. This article argues that, by adopting a pragmatic philosophical perspective, it is possible to go beyond this one-sided picture. Over the past few decades, there has been an increase in ‘practical’ attitudes in legal education. Socrates’ model of didactics, clinical education and moot courts are giving rise to institutionalized ideas as structural elements of legal education, owing to which a purely disciplinary pedagogy may be superseded. All these practices allow students to accept and confront the viewpoints of others. Education completed in harmony with these ideas promotes an active, critical member of community, who is ready to advance justified moral judgements, and as such is compliant with pragmatic ethics of democracy.


Michal Stambulski
Dr. Michal Stambulski is postdoctoral researcher at the Erasmus University Rotterdam and assistant professor at the University of Zielona Gora.
Artikel

Access_open Professional Ethics for Judges – Lessons Learned from the Past. Dialogue as Didactics to Develop Moral Leadership for Judges

Special Issue on Education in (Professional) Legal Ethics, ­Emanuel van Dongen & Jet Tigchelaar (eds.)

Journal Law and Method, July 2021
Keywords professional ethics, ethical dilemmas, judiciary, independence
Authors Alex Brenninkmeijer and Didel Bish
AbstractAuthor's information

    There is an intimate link between good conduct by judges and the rule of law. The quintessence of their role is that judges shape a trustworthy and fair legal system from case to case. Ethical trading is not carved in granite, and judges must determine their course on different levels. First, it concerns personal conduct and requires integrity and reliability. On the second level, the challenge is to achieve proper adjudication by conducting a fair trial in accordance with professional standards. Third, judges exercise discretion, in which normative considerations run the risk of becoming political. They should act independently as one of the players in the trias politica. A triptych of past cases illustrate moral dilemmas judges may encounter in their profession. Calibrating the ethical compass is not an abstract or academic exercise. A dialogue at the micro (internal), meso (deliberation in chambers) and macro levels (court in constitutional framework) could be incorporated in the legal reasoning as a didactic framework to make future judges aware of their ethical challenges.


Alex Brenninkmeijer
A.F.M. Brenninkmeijer, PhD is Member of the European Court of Auditors, Luxembourg. Professor of Institutional Aspects of the Rule of Law at Utrecht University.

Didel Bish
D.A. Bish, LLM is a trainee at the European Court of Auditors, Luxembourg.
Artikel

Access_open Teaching Legal Ethics by Non-Ethical Means – With Special Attention to Facts, Roles and Respect Everywhere in the Legal Curriculum

Special Issue on Education in (Professional) Legal Ethics, ­Emanuel van Dongen & Jet Tigchelaar (eds.)

Journal Law and Method, June 2021
Keywords legal ethics, informal respect, educational integration, importance of setting examples
Authors Hendrik Kaptein
AbstractAuthor's information

    Legal ethics may be taught indirectly, given resistance to ethics as a separate and presumably merely subjective subject. This may be done by stressing the importance of facts (as the vast majority of legal issues relate to contested facts), of professional role consciousness and of the importance of formal and informal respect for all concerned. This indirect approach is best integrated into the whole of the legal curriculum, in moot practices and legal clinics offering perceptions of the administration of legal justice from receiving ends as well. Basic knowledge of forensic sciences, argumentation and rhetoric may do good here as well. Teachers of law are to set an example in their professional (and general) conduct.


Hendrik Kaptein
Hendrik Kaptein is associate professor of jurisprudence em., Leiden University.
Artikel

Access_open Thought Experiments in Law

Special Issue on Experimental Legislation in Times of Crisis, Sofia Ranchordas & Bart van Klink (eds.)

Journal Law and Method, May 2021
Keywords legal empirical studies, legal methodology, philosophy of law, thought experiments
Authors Gabriel Doménech-Pascual
AbstractAuthor's information

    Thought experiments have been widely used in virtually all sciences and humanities. Law is no exception. We can find countless instances of such experiments in both the legal practice and the legal theory. However, this method has hardly been studied by legal scholars, which contrasts with the vast literature devoted to it in other fields of knowledge. This article analyses the role that some thought experiments – those where an imaginary legal change is made, and its social effects are observed – may play in law. In particular, we show why these empirical legal thought experiments might be useful for the practice and theory of law, the main principles for conducting them and how the law deals with them.


Gabriel Doménech-Pascual
Dr. Gabriel Doménech-Pascual, PhD is full professor of Administrative Law at the University of Valencia, Spain. I thank Bart van Klink, Sofia Ranchordas, Alba Soriano, María José Añón, Pablo de Lora, Diego Papayannis, Arturo Muñoz, Violeta Ruiz, Pedro Herrera, Viviana Ponce de León, Maximiliano Marzetti, and two anonymous referees for their useful and thoughtful comments. All remaining errors are mine.
Artikel

Access_open Ethiek en recht, actio in distans

Special issue on Education in (Professional) Legal Ethics, ­Emanuel van Dongen & Jet Tigchelaar (eds.)

Journal Law and Method, April 2021
Keywords juridische beroepspraktijk, juridische opleiding, ethiek
Authors Marcel Becker
AbstractAuthor's information

    Deze tekst belicht achtergronden van het ethiekonderwijs aan juristen, zoals dat aan de Radboud Universiteit vorm krijgt. Centraal staat eerst de praktisch én theoretisch relevante spanning tussen ethiek en recht. Na een verkenning van deze spanning bespreekt Marcel Becker de status van ethische theorieën en de meerwaarde van sociaalwetenschappelijke kennis voor ethiekonderwijs.


Marcel Becker
Dr. Marcel Becker is associate professor Ethics and Political Philosophy, Radboud Universiteit, Nijmegen.
Artikel

Access_open Space and Socialization in Legal Education: A Symbolic Interactionism Approach

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

Journal Law and Method, April 2021
Keywords legal education, pragmatism, symbolic interactionism, sociology of space
Authors Karolina Kocemba
AbstractAuthor's information

    The article deals with the possibility of socializing law students through space. It first indicates which features of space affect the possibility of influencing interactions and identity. It then discusses how we can use symbolic interactionism to study interactions and socialization in spaces of law faculties. Then, on the basis of the interviews conducted with law faculty students about their space perception, it shows how to research student socialization through space and how far-reaching its effects can be.


Karolina Kocemba
Karolina Kocemba, MA, is PhD student at the University of Wroclaw; Uniwersytet Wroclawski, Wroclaw, Poland.
Artikel

Access_open Art, Science and the Poetry of Justice – ­Pragmatist Aesthetics and Its Importance for Law and Legal Education

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

Journal Law and Method, March 2021
Keywords legal research, legal education, epistemology, law, science and art
Authors Wouter de Been
AbstractAuthor's information

    Classic pragmatists like John Dewey entertained an encompassing notion of science. This pragmatic belief in the continuities between a scientific, ethical and cultural understanding of the world went into decline in the middle of the 20th century. To many mid-century American and English philosophers it suggested a simplistic faith that philosophy and science could address substantive questions about values, ethics and aesthetics in a rigorous way. This critique of classic pragmatism has lost some of its force in the last few decades with the rise of neo-pragmatism, but it still has a hold over disciplines like economics and law. In this article I argue that this criticism of pragmatism is rooted in a narrow conception of what science entails and what philosophy should encompass. I primarily focus on one facet: John Dewey’s work on art and aesthetics. I explain why grappling with the world aesthetically, according to Dewey, is closely related to dealing with it scientifically, for instance, through the poetic and aesthetic development of metaphors and concepts to come to terms with reality. This makes his theory of art relevant, I argue, not only to studying and understanding law, but also to teaching law.


Wouter de Been
Wouter de Been is a legal theorist who has written widely on pragmatism and legal realism. I would like to thank the reviewers for their comments. Their critical commentary made this a much better article. Any remaining shortcomings are of course my own. I dedicate this article to the memory of Willem Witteveen, who always saw the art in law.
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 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.

    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.

    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.
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