At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Behavioural Economics and Legal Research Julie De Coninck 15. However, one has to be aware that lack of sufficient understanding of foreign legal systems may arise from an imperfect communication within the team. Hence, the functional method has to be complemented by other methods. Raz, The Concept of a Legal System, Oxford: Clarendon Press 1980, p. On the other hand, comparing domestic law with the way the same area has been regulated in one or more countries has become almost compulsory in doctrinal legal research.
Comparative Law, Legal Linguistics and Methodology of Legal Doctrine Jaakko Husa 12. About Methodologies of Legal Research Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. The paper adopts a doctrinal research methodology in achieving its objective. What could be the tertium comparationis when comparing the repudiation of a wife in Islamic law with divorce in Western law? For an overall account of legal reality, an analysis of court decisions in comparative research should be complemented by some legal sociological research. Promises and Pitfalls of Interdisciplinary Legal Research: The Case of Evolutionary Analysis in Law Bart Du Laing 14.
Socio-legal scholars argue that law does not operate in vacuum. Method Undertaking doctrinal research typically involves source-based research and it would be unusual to undertake qualitative or quantitative research under the doctrinal methodology. Non-doctrinal research, also known as socio-legal research is a legal research that employs methods taken from other disciplines to generate empirical data to answer research questions. Merits of Non-Doctrinal Research: Empirical research enhances lawyers ability to understand the implications and effects of the law on society. Are the methods listed above the only possible ones? What additional perspective does it add to your research? Any inquiry whose objective is to determine what is good and what is evil cannot be empirically tested. This shows how a second-order language may partly overlap with the legal languages of the compared legal systems. It tacitly assumes that for every detail of every legislative problem there is one right universal rule, which the lawmaker is seeking to discover and to formulate.
While agreeing with this argument, the purpose of the second section of this paper is to articulate other, perhaps less obvious, benefits. Thus, the combination of methodologies, i. Researchers get easily lost when embarking on comparative legal research. Doctrinal scholars need to be more open and articulate about their methods. Many societal problems, such as accidents, family problems, theft, murder, quarrels between neighbours, etc.
Moreover, the increase in member states, most notably after 2004, when it jumped from 15 to 25 states, made it increasingly difficult to encompass all member states in such a research, so that for instance the Ius Commune Casebooks are mainly focusing on the three main legal systems for private law, England, France, and Germany Beale et al. Referring to Koen Raes, Koen Lemmens pointed to the importance of tax law as an explanation for non-pecuniary losses being widely covered in Belgian law Lemmens 2012, p. It is immediately obvious that those who see comparative law as a method only do not tell us what that method is, leaving this issue unanswered or very vaguely covered, and those who think or feel that comparative law must be more than a mere method do not seem to agree on what this subject-matter is. How should a comparative researcher cope with this apparent paradox? Legal researchers can use social science methodologies themselves to investigate issues, or they can collaborate with skilled researchers from other disciplines. They are, according to Berthelot and Samuel, to be identified as separate epistemological readings in that not one of the six can be reduced, in terms of its fundamental logical relations, to one of the others. Central and Eastern European countries took up the Roman law tradition again, after a few decades of communism in the second half of twentieth century.
In some cases a broader comparative scale, that transcends the borders of one single legal system, may offer more reliable information, compared to purely domestic research. Firstly, it is the traditional method for conducting legal search and is often taught during early stages of legal training. The sources of data are legal and appellate court decisions. Kötz, Introduction to Comparative Law, Oxford: Clarendon Press 1998, p. The import of European family law in most African countries during colonization times, and kept after that, is a clear example of failed transplants because of a quite different cultural context Van Hoecke 2012. We will argue that the answer to this problem is not to try to put doctrinal legal research out with the garbage.
Pospisil, for example, has thus structured all different forms of terrain ownership amongst the Kapauku tribe in Papua New Guinea in the 1960s. However, upon a closer look, it appears that, depending on the context, rather similar constructions may sometimes be discovered and clear differences at other times e. However, in the present context, the more interesting distinction is that between doctrinal and interdisciplinary research which is represented by the horizontal axis. In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative law or not. Moreover, in some cases similar or identical rules in two compared legal systems lead to diverging results.
Socio-Legal Methodology This post focuses on the socio-legal methodology. Maps, Methodologies and Critiques: Confessions of a Contract Lawyer Roger Brownsword 9. Example: In contract interpretation it looks like England, France and Germany are taking rather diverging positions as to what determines the meaning of the contract. If the aim is to harmonize the law, e. It is concerned with people, social values and social institutions.