Why Methods Matter in European Legal Scholarship

Authors

  • Rob van Gestel,

    Professor of Theory and Methods of Regulation, Professor of Methodology of Law and Legal Research, Braudel fellow
    1. Tilburg University
    2. Leuven University
    3. European University Institute
    Search for more papers by this author
  • Hans-Wolfgang Micklitz

    Professor of Economic Law and Head of Department of the Law Faculty
    1. European University Institute
    Search for more papers by this author

Abstract

Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the ‘true nature’ of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and … research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.

Ancillary