A Meta-Methodological Study of Dutch and Belgian PHDs in Social Security Law: Devising a Typology of Research Objectives as a Supporting Tool
| Author | Lina Kestemont |
| DOI | 10.1177/138826271501700303 |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| Subject Matter | Article |
DUTCH AND BELGIAN PHDs IN SOCIAL
SECURITY LAW: DEVISING A TYPOLOGY
OF RESEARCH OBJECTIVES
AS A SUPPORTING TOOL
Lina Kestemont*
Abstract
Th
is article presents a typology of research objectives for legal scholarship in response to
the strong call for research on legal methodology. Based on an in-depth literature study,
the possible research objectives of legal scholarship are classifi ed, labelled and discussed.
In conjunction with the theoretical clarifi cation of the typology, the article also provides
concrete examples of research objectives discerned in Dutch and Belgian PhDs in social
security law.
Th
e development of the typology presented in this article forms part of a broader PhD
project aiming to apply a ‘bottom-up’ approach to research on legal methodology. In
order to do this, the project identifi es which research objectives and research methods
have been used in a representative sample of legal research in the fi eld of social security
law. Looking into existing research on social security law makes it possible to grasp
the ways in which research is being conducted in this particular branch of law. Th
e
sample analysed includes all PhDs on social security law defended at all Dutch or
Belgian Law Faculties between 1945 and 2012. Th
e typology discussed in this article
then serves as a supporting tool for the analysis of the selected PhDs on social security
law.
Keywords: legal research; PhDs in the Netherlands and Belgium; research methods;
research objectives; research on social security law
*
Lina Kestemont is a pre-doctoral research fellow at the Institute for Social Law, Faculty of Law, KU
Leuven, and a substitute teacher at the Faculty of Canon Law; Address: Institute for Social Law,
Blijde Inkomststraat 17, 3000 Leuven; e-mail: lina.kestemont@law.kuleuven.be.
European Journal of Social Security, Volume 17 (2015), No. 3
361
Lina Kestemont
1. INTRODUCTION
Legal scholarship is one of the oldest academic disciplines; how law should be
studied and dealt with has been passed on from generation to generation through
an implicit savoir-faire.1 Th
us, students learn during their studies how to fi nd, read,
analyse and apply the law in a rather intuitive way without having to explicitly
describe how they operate during this process. Consequently, legal scholarship has
never really felt the need to linger over methodological steps and choices made
during legal research. Although legal scholars evidently use specifi c research
techniques, these generally lack a detailed description and justifi cation.2 As a
result, legal scholarship is lacking an explicit methodological framework. Such a
framework
‘contains an inventory and selection of methods that are important to legal scholars. Th
e
framework will label each method and will relate the method to research questions, to
other methods, to sources, to conditions for use, to quality assurance, to the type of result
and to the advantages and disadvantages of using the particular method’.3
Legal scholars have become increasingly aware of the importance of an explicit
methodology. Accordingly, there is a strong call for in-depth research into the methods
of legal scholarship.4 In order to answer this call, a PhD project was created which
aimed to apply a bottom-up approach to analysing research on legal methodology.5
Th
e main goal of the project is to conduct a meta-methodological study by
interpreting, analysing and synthesising the research objectives and methods applied
in existing legal research.6 Th
e scope of the project is restricted to legal research in
one specifi c branch of law, as all branches of law have their own characteristics that
inevitably leave their mark on the way research is conducted: branches of law with
strong codifi cation versus branches of law with fragmented legislation, branches of
law with rapidly evolving legislation versus branches of law which already have a long
1
Pimont (2006: 707).
2
Hutchinson and Duncan (2012: 100); McCrudden (2006: 646); Smits (2012: 109); Taekema and Van
Klink (2011, a: 11ff ); Tijssen (2009: 143); van Gestel and Vranken (2007: 1460); Herweijer (2003: 28);
van Manen (2008: 1929).
3
Tijssen (2009: 30 footnote 17).
4
Adams and Heirbaut (2014: v); Barendrecht, Vranken, Giesen et al (2004: 1427). Hutchinson and
Duncan (2012: 83); Muntjewerff (2010: 2); Smits (2012:1 ff ); Tijssen (2009: 193); Van Hoecke, (2011,
a: v ff );.
5
Kestemont ‘Towards a legal methodology: an explicit methodological framework for academic legal
research in social security law.’ PhD thesis (in progress), Faculty of Law, KU Leuven. Supervisor:
Prof. Dr. P. Schoukens. Co-supervisor: Prof. Dr. D. Pieters.
6
Zhao (1991).
362
Intersentia
A Meta-Methodological Study of Dutch and Belgian PhDs in Social Security Law
established body of rules, traditional branches of law versus new interdisciplinary
branches of law etc.7
Th
is PhD project opted to focus on ‘social security law’. More specifi cally, it
examines all the PhDs on social security law defended at a Dutch or Belgian law
faculty between 1945 and 2012.8 Th
e motivation behind this choice of sample was as
follows.
Social security law was chosen for three reasons. First of all, research on social
security law is an interesting object of study because of its versatility: on the one
hand it is closely connected to other academic disciplines, e.g. to the social sciences
and to economics, on the other hand it is strongly intertwined with the major areas
of legal scholarship, i.e. with public law and private law. Secondly, comparative
law seems to be one of the most popular methods in contemporary legal research.
However, within social security law, the method of comparative law was still in
its infancy until recently.9 Studying social security law is therefore intriguing as
it indicates not only how comparative law has slowly developed within the fi eld
of social security law, but also what kind of legal research was carried out before
comparative law became an established method. Finally, the legal discipline of
social security law is a relatively young one and for that reason the number of PhDs
is quite limited. Th
is allows the sample to cover a considerable period of time while
still being exhaustive.
Only PhDs on social security law are included in the study. Th
is choice was mainly
motivated by the current uncertainty as to which types of legal publications are
‘scientifi c’ or ‘academic’.10 However, this uncertainty does not hold for PhDs as a PhD
is only granted for academic work of outstanding excellence. Moreover, some authors
argue that PhDs are indicative of the way academic legal research is conducted in a
given country.11
As mentioned above, our sample contains all PhDs on social security law defended
at a Dutch or Belgian law faculty. Only two countries were included as the role of
legal scholarship can diff er from one country to another, and this may infl uence the
practice of legal research.12 A thorough analysis of social security law research in
two countries was considered to be preferable to a superfi cial study including more
countries. Th
e choice of the Netherlands and Belgium was infl uenced by the debate on
legal methodology, which has proved to be very popular in the Netherlands, but has
had a rather low-profi le in Belgium. It will be interesting to see whether the diff erence
7
Fisher, Lange, Scotford and Carlarne (2009: 230); Kunneman (1991:14, 22); Tijssen (2009:152); Van
Hoecke (1984: 195);.
8
Th
e sample covers eighty PhDs.
9
Pieters (1992: 16).
10
Tijssen (2009: 39).
11
van Dijck, van Gulijk and Prinsen (2010: 52).
12
Hesselink (2009: 22).
European Journal of Social Security, Volume 17 (2015), No. 3
363
Lina Kestemont
in attention paid to this debate had a demonstrable infl uence on the methodology
applied in the selected PhDs.
Intrinsically, a meta-methodological study is based on an interpretative
procedure.13 It is therefore helpful to rely on a theoretical framework when analysing
the PhDs in the sample. Th
is kind of framework provides guidance and gives some
direction to the analysis without imposing itself, and therefore leaves room for the
PhDs to ‘speak for themselves’.
During the fi rst phase of the PhD project the theoretical framework was
created on the basis of an in-depth literature review which focused on classifying,
labelling and elaborating research objectives and methods discussed in academic
legal literature.14 Th
e result is a typology of ‘Research Objectives and Research
Methods in Legal Scholarship’. Th
e aim of this article is to outline one part of the
typology, i.e. possible research objectives in legal scholarship, and to demonstrate
them by presenting concrete examples taken from the PhDs on social security law.
In this article each research objective is exemplifi ed by a limited and fragmented
set of examples. It is therefore possible that the article may of necessity fail to fully
represent the objectives of the authors of the PhDs and that they may have valid
criticisms of it.
2.
RESEARCH OBJECTIVES IN LEGAL SCHOLARSHIP
Legal research can pursue diff erent research objectives. In this article we distinguish:
descriptive, defi ning, comparative, explanatory, evaluative and recommendatory
objectives. Th
e number of diff erent research objectives in a piece of legal research will
always depend on the complexity of the topic,...
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