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Year 2015 x

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


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

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


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

mr.dr. Maria Geertruida IJzermans

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

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

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

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

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


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


Jaap Hage

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


Bert van Roermund
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