Law and Method

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Access_open Interdisciplinary Methodological Approaches to Desk-Based Socio-legal Human Rights Research

Keywords positionality, reflexivity, socio-legal human rights research, right to health
Authors Thomas Peck
AbstractAuthor's information

    As legal study adopts more interdisciplinary approaches and assimilates with other disciplines such as sociology, politics and business, there is a growing need to pay greater attention to the research methods and methodologies from across the academic spectrum. Doing so creates opportunities to borrow and employ methodological techniques and insights from disciplines across the spectrum of the social sciences. In this work I examine how socio-legal methodologies may be informed by approaches within the wider social sciences and explore how borrowed elements such as research ethics, reflexivity, and positionality, can be understood and utilised within interdisciplinary, desk-based, socio-legal research. I do so using the example of a project examining the human rights abuses of pharmaceutical companies. The project sits at the intersection of the fields of human rights (the right to health), socio-legal studies and ‘business and human rights’ research. It thus serves as a useful example of how those borrowed elements from the wider social sciences can be conceived of and utilised within interdisciplinary, desk-based, socio-legal research. This work may serve as an example to those looking to incorporate a more interdisciplinary approach towards the study of law using methodological techniques found across the social sciences.

Thomas Peck
Thomas Peck LLB, LLM, MA, is Postgraduate Researcher at Lancaster University, United Kingdom.

Access_open The Expanding Methodological Toolbox of the ECHR Scholar

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords ECHR, ECtHR, methods, legal progress
Authors Janneke Gerards, Elif Erken and Claire Loven
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    Scholars who set out to study the European Convention on Human Rights (ECHR or Convention) system will find an abundance in research methods to choose from. In the early years of the European Court of Human Rights (ECtHR or Court), the methodological toolbox of the ECHR scholar largely consisted of qualitative and classical-doctrinal methods to study the Court’s case law, as well as historical, philosophical and theoretical studies to contextualize the ECHR system. Today, these ‘traditional’ methods not only have evolved to reflect the enormous increase of, and scholarly interest in, the Court’s case law but have also been complemented by empirical qualitative and quantitative, statistical and machine learning research methods. This contribution traces these major developments in the methods applied to studying the Court. By providing a comprehensive discussion of the different approaches, including their application, value and potential weaknesses, this contribution helps scholars understand, use and learn from the rich methodological toolbox of the ECHR scholar.

Janneke Gerards
Prof. mr. Janneke Gerards is Professor of Fundamental Rights Law, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Elif Erken
Elif Erken is PhD candidate, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Claire Loven
Dr. Claire Loven is Assistant Professor, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Access_open What Counts as Progress in Criminal Law Scholarship?

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Authors Jørn Jacobsen
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    The article discusses what should be considered as ‘progress’ in criminal law scholarship, as a legal scholarly discipline. What is considered progress depends on one’s ideas about the aim(s) of a scholarly discipline and how it should develop to better achieve that aim. Criminal law scholarship is, for its part, characterized by its study of positive criminal law from a knowledge point of view, one that puts criminal law scholarship in close contact with the philosophy of criminal law. At the same time, positive criminal law must be subjected to this perspective. As such, while criminal law scholarship may progress in many ways, the article claims particular importance to what is called ‘theoretical integration’. This refers to the operation of bringing aspects of positive law into the knowledge perspective of criminal law scholarship, to subject it to study. The article exemplifies the value of doing so by three works from contemporary criminal law scholarship.

Jørn Jacobsen
Jørn Jacobsen is professor at the Faculty of Law at the University of Bergen, Norway.

Access_open Turtles All the Way Down? Progress in EU Law Scholarship

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords progress, innovation, EU law, scholarship
Authors Henri de Waele
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    European Union (EU) law, with a history of approximately 60 years, remains one of the younger legal disciplines around the world. The scholarship in this field initially focused on the development of the European Economic Community and its common market, gradually branching out, in tandem with the ever-expanding reach of the relevant rules. The number of books and journals has grown exponentially, with novel genres like blogs and podcasts recently gaining in popularity too. Increases in size or quantity should, however, not be automatically equated with the notion of ‘progress’ as such. For a sound measuring of progress, the key question that needs to be answered is the extent to which the knowledge base has been advanced, and whether genuinely superior insights have been acquired over the course of time. In EU law scholarship, these issues are closely connected to the general tone and objectives of the leading studies, which can be seen to have evolved significantly. The current article zooms in on three publications from the 2010-2020 period, discussing how they fit into the overall picture, indicating in what way the progress label may fruitfully be applied to these pieces, and hereby also reflecting on how they are believed to have exerted a marked influence on the work of subsequent authors.

Henri de Waele
Professor dr. Henri C.F.J.A. de Waele is Professor of International and European Law at the Research Centre for State and Law, Radboud University Nijmegen, The Netherlands, Visiting Professor, Faculty of Laws at the University of Antwerp, Belgium and Senior Fellow at the Centre for European Integration Studies, University of Bonn, Germany.

Access_open Quality, Methodology, and Politics in Doctrinal Legal Scholarship

Keywords doctrinal research, quality, methodology
Authors Rob van Gestel
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    Doctrinal legal scholarship is the oldest form of academic legal research but the quality criteria and methodological ground rules for this type of research have always remained rather implicit. This is increasingly problematic in a ‘post-truth era’ in which academic research is being put under a magnifying glass. Although it is certainly not impossible to make the quality standards more explicit and to require a higher degree of methodological accountability, this is unlikely to happen in the short run because of certain politics in legal academia. These feed the fear of many law school managers to distance legal scholarship too much from legal practice because that may hurt the future prospects of their law students. At the same time, though, law schools need to worry about the fact that not making the quality standards and methodology of doctrinal research more explicit could make legal scholars lose credibility towards other academic disciplines and the larger public.

Rob van Gestel
Prof. dr. Rob van Gestel is professor of theory and methods of regulation at Tilburg University and professor of methodology of legal research at KU Leuven.