Legal arrangements rest on behavioural, cognitive, social, and other assumptions regarding their role and function in society and the legal system. The identification and subsequent evaluation of these assumptions is an important task for legal scholarship. In this article, we focus on the identification and categorisation of these assumptions, providing conceptual distinctions and methodological guidance. We distinguish between assumptions about the value(s), norm(s), or interest(s) underlying a legal arrangement, which can be legal or non-legal, and assumptions about the relationship between the legal arrangement and its underlying value(s), norm(s), or interest(s), which can be logical, causal, or contributory. Regarding the identification, we consider explicit references and inference to the best explanation and theory-driven evaluations as possible methods. Inference to the best explanation, we posit, functions as a manner of reconstructing the theory that the person(s) creating a legal arrangement had in mind regarding the place and function of that legal arrangement in society. Given this, we offer a step-by-step approach to reconstructing this theory in use, drawing from theory-driven evaluations and its sources in the social sciences. These distinctions and guidelines can contribute to understanding the context and untangling the complexities involved in identifying the assumptions that underlie legal arrangements.

Developing the capacity for moral judgment is an essential professional competence for lawyers. What teaching and learning activities in the law curriculum can be used in order to contribute to students’ moral reasoning and moral judgment? Four teaching methods were tried out in the period 2019 to 2021 at the Utrecht University School of Law: teaching methods that either work with (hypothetical) dilemmas (I); in-class reflection papers (II); experiential learning based on own experiences in a simulation situation (III); or clinical teaching in a real law firm (IV). The effects of these methods on the development of moral reasoning were measured using the Defining Issues Test (DIT). Additional information on the effectiveness and utility of the method was gathered using semi-structured interviews with teachers. The DIT results were compared at the beginning and at the end of the courses and related to the teaching methods. This article presents the outcomes of this study and formulates some recommendations for further research on the topic.

Many doctrinal legal research questions require making use of other academic disciplines or perspectives. This article explains the relevance of legal philosophy for doctrinal research projects. Often legal research questions have conceptual or evaluative dimensions that presuppose philosophical understanding. For research on the concept of democracy, the function of constitutional rights, or the possible introduction of a referendum in the Netherlands, questions of a philosophical nature need to be answered. Legal philosophy can supplement and enrich doctrinal research in various ways. In this article, we present seven purposes that legal philosophy may serve in the context of a doctrinal research project: conceptual clarification, exposition and reconstruction of fundamental normative principles and values, theory building, providing creative perspectives, structural critiques, evaluation, and recommendations. For each objective, we illustrate how to use relevant philosophical methods. Thus, this article complements our earlier publication ‘Legal Philosophy as an Enrichment of Doctrinal Research – Part I: Introducing Three Philosophical Methods’.¹x http://www.lawandmethod.nl/tijdschrift/lawandmethod/2020/01/lawandmethod-D-19-00006.

Noten

• * This text has been presented to classes at the University of Zagreb, Queen Mary University of London and Erasmus School of Law, Rotterdam; we profited from the feedback of our students. We also want to thank Irma Bluijs, Machteld Geuskens, Tamar de Waal and the reviewers for their helpful comments on previous versions of this article, and Jacqueline Brand and Robert Poll for providing research assistance.

• 1 http://www.lawandmethod.nl/tijdschrift/lawandmethod/2020/01/lawandmethod-D-19-00006.

This article discusses the key methodological shortcomings of experimental regulations and regulatory sandboxes. I argue that the poor design and implementation of these experimental legal regimes have both methodological and legal implications. The deficient design of experimental regulations and regulatory sandboxes can have three adverse effects: First, the internal validity of experimental legal regimes is limited because it is unclear whether the verified results are the direct result of the experimental intervention or other circumstances. The limited external validity of experimental legal regimes impedes the generalizability of the experiment. Second, experimental legal regimes that are not scientifically sound make a limited contribution to the advancement of evidence-based lawmaking and the rationalization of regulation. Third, methodological deficiencies may result in the violation of legal principles which require that experimental regulations follow objective, transparent, and predictable standards. I contribute to existing comparative public law and law and methods literature with an interdisciplinary framework which can help improve the design of experimental regulations and regulatory sandboxes. I draw on social science literature on the methods of field experiments to offer novel methodological insights for a more transparent and objective design of experimental regulations and regulatory sandboxes.

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.

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.

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.

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.

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.

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.

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.

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.

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 20^th 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.

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.

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.

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.

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.

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.