(6) Methods and approaches to research legal questions in your thesis

Today we look at how the issues we discussed in the previous classes shape legal research in practice, and how you can make use of our insights for your thesis. We will also discuss a number of different research approaches that exist within legal scholarship, and which might be useful for your own work.

Review: different methods and the “legal method”

We already mentioned that the law, as a social phenomenon, can be researched with different methods stemming from the various social sciences, such as political science, sociology or psychology. Possible methods include:

• Quantitative studies (e.g. whether there are differences in sentencing for the same offense based on region or on race, or whether “hangry” judges pass harsher judgments, how recidivism rates for certain offenses differ between countries, etc.)
• Qualitative studies (e.g. interviews with judges to identify their world views or with asylum seekers about their access to legal information or representation, etc.)

However, we argued that much mainstream legal scholarship (or “doctrinal scholarship”) is concerned with hermeneutical studies, i.e., the interpretation of communications. In particular, we argued that legal scholars are usually engaged in the following activities:

• They employ the “legal method” in order to establish whether a specific measure that has been passed is legal.
• “Discourse analysis”, which analyzes the arguments employed by institutions to justify their exercise of discretionary (or “political”) choice, for example the choice of a specific interpretation of the law.

We have also argued that these two types of hermeneutical research are usually not held apart in legal discourse, but that it is useful to distinguish between the two for a better understanding of what doctrinal scholarship does, and in particular to understand how legal measures can be contested (we will further discuss this second point a little later). We have also argued that these two activities are usually pursued under the premise that the legal system forms, or should form, a coherent whole. Thus, doctrinal scholarship is engaged in the systematization of the legal system. Beyond hermeneutical analysis proper, doctrinal scholarship frequently also engages in the following activities:

• Political commentary: legal scholars often discuss various aspects surrounding legal decision-making, without engaging in method-guided research in a strict sense. They may comment, for example, on the political context within which a norm was enacted, discuss possible problems in application, or speculate about long-term developments.
• Policy arguments and proposals: legal scholars frequently propose minor or more extensive changes to norms, which would then be for the competent lawmaker to implement. Moreover, they comment on the interpretation practice of institutions, and suggest alternative approaches (for example, a proposal that can be frequently found in legal commentary on decisions by the European Commission or the CJEU is that they should be more “consistent”).

A typical article in a law journal will often encompass all four types of activities in some form, as the following example shows.

Legal scholars wear many hats: they employ the “legal method” to confirm or to reject the validity of measures, they employ “discourse analysis” to understand the arguments forwarded by institutions to justify their exercise of discretionary choice, they make policy proposals, and they engage in political commentary.

Analyzing a “generic” law journal article

Based on what we discussed, we can sketch the following outline of a “typical” article in a law journal.

• Legal articles often chose a new legal development as its subject, such as a new court decision or a legal reform, or discuss the potential legal implications of a new societal development.
• It often first sketches the factual and legal context: for example, it can summarize previous ECtHR judgments on the same subject, or discuss the political background of how a norm got enacted.
• It then provides an overview of the measure: the main facts of the judgment or the main aspects of a norm are summarized.
• It then often addresses those aspects of a decision or a norm that are complicated, unusual or contested, or are otherwise deemed important by the author: for example, if the legal standing of a party was seriously in question in a judgment for an unusual reason, it will be often be addressed in the article; if standing was not a contested issue, it won’t. As part of this discussion, the article will often put the measure in question in relation with other parts of the legal system ( → systematization); for example, it can compare a judgment with previous judgments it deems relevant, or put it in relation with relevant fundamental rights
• It may voice some criticism, for example regarding the evaluation of non-legal facts, the interpretation of law, or the exercise of discretionary choice.
• Such criticism will usually imply certain propositions, for example that non-legal facts should be evaluated differently, that a different interpretation of the law is in fact the correct one, that discretionary choice should be exercised differently, or that the legislator should reform the norm in question.

It can be seen in this schematic description of a generic article that it usually employs 1) the “legal method” to establish the validity of a measure, to criticize an incorrect application of the law, or to analyze a specific legal concept; 2) “discourse analysis” to identify the justifications provided by the institution for exercising their discretion they way it did; 3) policy arguments when these justifications are evaluated, and alternative proposals are made; 4) political commentary, when the political and factual background of a measure is discussed, or when the article speculates about future developments. These different aspects of doctrinal scholarship may often not be clearly distinguishable; rather, they often blend into each other. However, in reading legal scholarship and in writing your own thesis it is useful to be aware of these different activities.

The research method of your thesis

In principle, the appropriate method follows from your research question: if you wish to study recidivism rates, you will choose a quantitative method, etc. In practice, however, it frequently works the other way around: first, a method is picked, and only then is it asked which research questions can plausibly be tackled from that perspective. Theses written at law faculties often employ a doctrinal approach, which we defined as the use of hermeneutical instruments in the form of the “legal method” and “discourse analysis”. Because mainstream legal scholarship (just like much of the teaching at law faculties) is usually “doctrinal” in the sense just defined, law students may not always be aware that their research, too, is guided by a specific method.

Being clear about the method you employ helps you to stay aware of the method’s blind spots as well. For example, as discussed, the analysis of the reasons provided by an institution to justify their discretionary choices may not necessarily explain why it made that specific choice (for example, a judge may have decided a certain way for reasons of convenience or based on political convictions, and constructed her reasoning accordingly). The hermeneutical instruments employed in doctrinal scholarship do not really help to explore all potential factors that shape a specific decision, and you should be aware of this in your writing. Moreover, the legal method is also of limited help for a number of questions that you encounter in your research, such as the evaluation of non-legal facts. When you develop your research question, you should be attentive as to which questions you can plausibly answer when you employ hermeneutical instruments, but also which questions cannot reasonably be addressed.

Argumentative strategies within doctrinal research

Within doctrinal research, you can pursue different strategies of argumentation. Here we provide stylized examples, as well as possible research questions that are based on these different strategies.

Systematization

In your thesis, you may choose to analyze a new judgment or norm within the broader context of the legal system. We have already proposed a stylized argumentative strategy above when we discussed the “generic” law article, and briefly recap it here. We assume that you pick a new judgment by the CJEU as the object of your research.

• you would start by discussing the legal and political context of the judgment: what is the relevant case law, which measures exist in that field, what are important relevant principles, what is the political background, etc. ( → political commentary)
• Then you provide an overview of the judgment, including the relevant facts of the case.
• Then you address one or multiple legal issues that are relevant in regard to the judgment, and relate them to the broader context of the legal system. For example, if the standing of a party was questionable, you discuss the legal doctrine of standing, refer to relevant cases where standing was also an issue, etc. If the CJEU engages in a proportionality analysis (e.g. is a national measure that has a restrictive effect on the free movement of workers justified on important policy grounds?), you discuss the principle of proportionality, and analyze similar cases. You may also raise new legal concerns that have not been addressed in the judgment. For example, certain fundamental rights which the CJEU has ignored may be of relevance. You may also analyze the exercise of discretionary choice: what are the arguments forwarded to justify a certain interpretation of the law, how are certain non-legal facts evaluated? ( → “legal method” and “discourse analysis”)
• From this analysis you can draw certain conclusions. For example, you could find out that a certain legal concept has now received a different meaning after the latest judgment. You may also encounter contradictions or inconsistencies: for example, the restrictive approach taken by the CJEU in regard to standing may appear to conflict with its more lenient approach in other standing cases. Based on this you could argue that the latest judgment is an exception to the rule, and should not be understood as representing a change in the doctrine of standing. ( → “legal method” and “discourse analysis”)
• Finally, you could give policy advice: you could argue that the CJEU has to find a more coherent approach, that the legislator has to clarify a certain provision, that a norm appears to breach fundamental rights in certain regards and should therefore not be applied, etc. ( → policy arguments)

This is an example for a research question that mainly focuses on systematization (I just made this one up):

Under certain conditions, Union citizens have a right to receive social assistance from the Member State where they reside under the free movement provisions of the Treaty on the Functioning of the European Union (TFEU). The recent CJEU judgment Dano has been interpreted by many as holding that Member States may severely limit that right. However, Union citizens also have significant additional rights under the EU Fundamental Rights Charter (FRC), which have been addressed neither by the CJEU nor in the literature. The present thesis researches in how far the judgment Dano has limited the access to social assistance, and whether the FRC establishes certain minimum standards in that regard.

Challenging legal necessity + exposing political choice

We have said that a central theme in legal scholarship concerns the dividing line between law and politics, i.e., between what is legally required and what is enabled. Consider the following example: the government holds that a European Directive can be implemented correctly only in one specific way. It therefore argues that the national implementation is mostly or fully determined by higher-ranking law, and that it has no relevant discretionary choice. This could be challenged as follows:

• First, it could be argued that the implementation has negative practical effects in some form (→ policy argument).
• Second, you would try to establish whether the government’s interpretation of the Directive really is the only possible one. Maybe you will be able to show that an alternative interpretation is in fact possible. You thereby expose an alleged legal necessity as an exercise of political choice (→ This is an application of the “legal method.”)
• Third, you identify the arguments the government forwarded to justify its interpretation (apart from the argument that it is legally required, which you already rejected). (→ This is an application of “discourse analysis”)
• Fourth, you could reject the government’s arguments, and argue that better arguments can be made for another interpretation. (→ policy argument.)

This argumentative strategy challenges the dividing line between law and politics proposed by an institution. They claim that they are legally required to act in a certain way, but you can show that under the law they would have other options, which means that they are really making a discretionary or “political” choice for employing a specific interpretation. This “political” choice can then be challenged. In a metaphorical sense it could be argued that this type of argumentation pushes the law/politics line: an alleged legal necessity is exposed as a political choice. This is an example research question that employs such strategy (I also made it up just now):

It is often argued that the European Treaties require the European Central Bank (ECB) to exclusively pursue the objective of low inflation. However, the recent Gauweiler judgment provides support for the claim that the ECB’s mandate is in fact much broader. The thesis researches whether the European Treaties really limit the ECB’s mandate to price stability, or whether they would also enable the ECB to pursue other policy objectives, such as economic growth and full employment.

Challenging the evaluation of non-legal facts

A measure may be based on the evaluation of a specific non-legal fact that you think is incorrect. For example, Dutch authorities may decide that the deportation of individuals to a specific country of origin would not violate the non-refoulement requirement, because their lives or freedoms are allegedly not threatened there. In order to challenge this evaluation, you would have to make a plausible argument that this evaluation is in fact incorrect.

Another version of this strategy would be to argue that a specific evaluation of non-legal facts appears to draw from common sense, but is in fact based on biased assumptions. For example, it could be argued that certain factual evaluation in civil courts (e.g. regarding guardianship) is based on biased views of gender roles, of certain illnesses or handicaps, or of old age. This exposes a seemingly common-sensical evaluation as based on unjustifiable biases. A possible argumentation structure could look like this:

• First, you describe the relevant norm or case law
• Then you identify the presence of a certain view in the case law, for example a certain idea about gender roles ( → “discourse analysis”)
• Then you show, possibly through the discussion of the relevant social science literature on the issue, that this in fact is a biased view, and that other views are possible ( → policy arguments)
• Then you show that this biased view is not actually required by the higher-ranking norm, but that it merely constitutes one among a number of possible interpretations (→ “legal method”)
• then you analyze the arguments (or, if they are absent, possible arguments) to defend the court’s biased view (→ “discourse analysis”)
• Finally you reject the these arguments, and make alternative arguments why a different evaluation would be justified ( → policy argument).

Example research question:

In internal market law, the CJEU routinely has to balance the restrictive effects of national measures on cross-border trade and mobility on the one hand with the policy objectives these measures pursue on the other. While the Court approaches this task on the basis of a seemingly common-sensical understanding of trade and mobility, it can be shown that this understanding is in fact shaped by a specific economic approach, namely neoclassical economics. By contrast, insights from alternative economic approaches, such as Keynesianism or Institutionalism, are usually ignored. It will be argued that balancing under internal market law would frequently come to different outcomes if the different economical views are taken into account.

Approaches

You will see that legal scholars who work on a specific area (e.g. European law, trade law or migration law) often share a specific take on their subject. For example, they may share a specific style of analysis, tend to draw from insights from a specific non-legal discipline, or apply specific assumptions (or share a specific worldview). Sometimes this develops into a distinct style of legal research, which we could describe as a specific “approach” in legal scholarship. There are many different approaches:

• some share a specific analytical focus (e.g. “legal gender studies” assumes that gender is an important analytical category),
• some share a specific technique (e.g. “comparative constitutional law” compares the different constitutional regimes in order to identify interesting research questions),
• some share a specific affinity with another academic discipline (e.g. “legal gender studies” frequently draws from non-legal research on sexuality and gender; “law and economics” employs economic ideas, “behavioral law and economics” draws from psychology)
• some share a specific social theory of the law (e.g. scholars drawing from Foucault, or who employ a Marxist framework)
• Some share a specific worldview, or parts thereof (e.g. mainstream “law and economics” is usually close to neoliberal policy views)

These different approaches usually stay within the broader scope of doctrinal scholarship. However, they share a specific trait that might be interesting for your research. In what follows, we discuss a few of these approaches

Comparative approach

Comparative law is a distinct approach in legal scholarship, and has developed specific sub-disciplines (e.g. comparative private law, comparative constitutional law) and analytical techniques. A comparison between different legal systems could be a research question in its own right, or it could be a starting point to find an interesting research topic. A typical question drawing from the comparative approach could be one of the following:

• How is an international agreement or a European measure implemented or applied in the different Member States? Is it referred to in law-making or adjudication? Are there similarities or differences between the countries?
• How is a specific issue regulated in different countries? For example, how is hate speech regulated? How high can certain fines be?

Such comparisons may in turn be an interesting basis for critical analysis:

• For example, it could be interesting to find out what the causes of the differences between Member States are.
• Or, the existence of different implementations of e.g. the same Directive could support the argument that the national legislator in fact has different options to interpret and apply the higher-ranking law. This, in turn, could be the basis of criticizing the legislator for choosing a specific solution and not providing good-enough reasons for that.
• A comparative research may also be the basis for a policy proposal to reform the national law (e.g., let’s adopt the Norwegian approach to ensure gender equality in corporate boardrooms).

It’s true, but also kinda obvious. Comparative legal studies sometimes delivers interesting results, and sometimes less so.

Legal gender studies

Gender studies is an interdisciplinary field, which stretches across political science, sociology, psychology, economics, biology and medicine. The core assumption is that gender is a relevant category of analysis. For example, anthropologists and historians can study how gender roles are comparable or different in different societies and in different periods of time; psychologists or sociologists can study how dominant gender roles are established, reinforced or altered through e.g. the educational system. Medical researchers may be interested in whether diseases affect women and men differently, e.g. if they show different symptoms, and whether doctors are sufficiently aware of this.

Legal gender studies adopts this focus on gender as an analytical category, and allows for many interesting research questions:

• For example, it could be researched at which points and how the law distinguishes between two or more genders;
• reaching further, it can be asked whether these distinctions are informed by certain ideological views, and whether these legally imposed distinctions in turn enforce gender roles in practice.
• Or, it can be analyzed at which points regulation appears to be neutral, and yet has adverse effects on a specific group (e.g. a disadvantageous regulatory regime for part-time workers may be indirectly discriminatory against women, if they constitute the majority of part-time workers, which in turn may be influenced by traditional gender roles).

It is quite obvious that legal gender studies quickly touches on issues that require methods other than hermeneutics, such as employment statistics. In practice, legal gender studies is well integrated into the interdisciplinary gender studies discourse, with jurists frequently incorporating non-jurist scholarship and vice versa. Legal gender studies, in conjunction with the success of the feminist movement in general, has given rise to specific bodies of law that deal with gender discrimination (such as anti-discrimination law); this further stabilizes legal gender studies as a distinct scholarly approach within legal scholarship.

Law and Economics

The “law and economics” approach combines a variety of aspects or elements that are quite unrelated, at least at first sight. “Law and economics” is also termed, by its proponents, the “economic analysis of the law”: this definition already points towards two different elements of this approach:

• first, the application of “economic” analytical methods to answer “economic” research questions;
• second, the (“normative”) claim that law should be interpreted on the basis of a specific view or a specific set of values, namely “economic” ones.

The first element is easy to understand: we already discussed that law, as a societal phenomenon, can be analyzed from the perspective of various social sciences: for example, quantitative studies may show how specific psychological states (e.g. hunger) influence the outcome (quantitative analysis of legal processes from a perspective of psychology), or how race or gender influence outcomes (quantitative analysis of legal processes from a perspective of sociology). Consequently, law can also be analyzed on the basis of “typically” economic research methods (these are essentially quantitative methods also employed e.g. in psychology or sociology) in order to answer “economic” research questions (e.g., does a specific tort law system have a distributive bias in favor of e.g. consumers or producers?).

By contrast, the second element of the “law and economics” approach involves, in philosophical terms, a “normative” claim, i.e., the claim that law should be interpreted on the basis of a specific viewpoint or certain principles.

How would such “value” become relevant in law? You will remember that law is always under-determined: this means that there are always multiple interpretations possible, and lawyers have to pick one among them (e.g., a judge picks one possible interpretation of a legal provision over others). When lawyers “systematize” or “order” the legal system (e.g. when they put a new court judgment into relation with the existing case law and with the legal system in general), they do so on the basis of a certain underlying understanding of what the legal system should be about — this is logical: you can order things only if you apply a certain underlying principle. Maybe the following comparison is helpful for you: you may remember that we compared the activity of legal scholars to re-arranging a room when a new piece of furniture is acquired: the new and the existing pieces of furniture are moved around until a satisfiable room arrangement is found, and all pieces work well together. However, such re-arranging or ordering activity requires an implicit assumption about what is a “good” way of organizing rooms (e.g., don’t put the wardrobe in the middle of the room or in front of windows or doors). Similarly, when the legal system is “ordered”, such “ordering” or “systematization” activity must necessarily be informed by certain values or principles.

Mainstream “law and economics” scholars would argue that the law should be interpreted on the basis of what is necessary to make the markets run optimally. In other words, an allegedly “economic” viewpoint should inform the interpretation of law. The problem is, however, that there is not one “correct” economic viewpoint. Rather, there are a number of very different views of how the economy works (Neoclassical, Keynesian, Marxist, green, etc.), and consequently also how a legal system should be interpreted. Mainstream “law and economics” scholars usually posit a specific economic view as the “correct” one that is supposed to guide the interpretation of law, which could be described as “neoliberal” (individuals are conceptualized as rational maximizers of their utility, markets are conceptualized as efficient insofar as they are better able than states to allow individuals to maximize their utility, etc.)

The two elements of “law and economics” are, as such, unrelated: the first is about studying law and legal processes from a non-legal research perspective, applying e.g. quantitative methods. By contrast, the second is about positing a specific value or viewpoint that is supposed to guide the interpretation of law. However, “law and economics” does not really distinguish between the two, which has ideologically problematic consequences: while it is certainly legitimate and interesting to research law on the basis of “economic” methods, this does not, as such, justify why a specific ideological view is picked as the “correct” economic view that is supposed to shape the interpretation of law.

Alternative approaches — e.g. “behavioral law and economics” — may focus in different non-legal research methods to study the law (e.g., psychological) and may propose different research questions (e.g. focusing on how e.g. biases shape legal outcomes). Beyond that, they may posit different values for the interpretation of law: e.g., “behavioral law and economics” conceptualizes individuals in a more realistic way than mainstream “law and economics”, i.e., often driven by “irrational” considerations.

In order to understand how different values shape the interpretation of law, imagine the following situation: a contract between a customer and a large company contains terms and conditions that are very unfair for the former. A judge informed by mainstream “law and economics” may assume that — because individuals are assumed to rationally optimize their utility on the market — the contract is still beneficial for the customer: if the contract would not increase her utility, she would not have concluded it. Consequently, the judge will be reluctant to invalidate the contract. By contrast, a judge informed by “behavioral law and economics” does not assume that consumers always act in a way that is increasing their utility. The judge may therefore be more inclined to invalidate the contract because of the unfair terms and conditions.

Conclusion

The following concluding points can be made:

• Legal scholarship may employ all kinds of research methods and may ask all kinds of research questions relating to non-legal disciplines, including quantitative approaches to answer research questions stemming from psychology, etc. However, in practice, mainstream legal scholarship (which we describe as “doctrinal” scholarship) focuses on the hermeneutical method (i.e., interpretation of communications), in order to establish whether a specific communication is “legal” according to a specific legal system (“legal method”), and to study the arguments forwarded by e.g. courts for picking a specific interpretation of the law over others (“discourse analysis”). Beyond that, legal scholars often engage in political commentary and policy propositions.
• We encountered a number of “typical” argumentative strategies in legal scholarship: the most common is the “systematization” or “ordering” of the legal system (e.g., putting a new judgment into context with the existing law). Beyond that, we encountered more explicitly critical strategies, which include “challenging legal necessity + exposing political choice”, and “challenging the evaluation of non-legal facts.”
• Finally, we saw that legal scholars often employ what we termed specific “approaches”. These approaches may be characterized by very different aspects: some share a specific analytical focus (e.g. “legal gender studies”, which assumes that gender is an important analytical category), while others share a specific analytical technique (e.g. “comparative constitutional law” compares the different constitutional regimes in order to identify interesting research questions).