The future of European legal scholarship: Empirical Jurisprudence
| Published date | 01 June 2019 |
| Author | Nicolas Lampach,Arthur Dyevre,Wessel Wijtvliet |
| DOI | 10.1177/1023263X19840263 |
| Date | 01 June 2019 |
| Subject Matter | Articles |
Article
The future of European legal
scholarship: Empirical
Jurisprudence
Arthur Dyevre*, Wessel Wijtvliet** and Nicolas Lampach **
Abstract
To avert the twin th reats of isolation and marginal ization, we argue that European legal research
should embrace the methodology of the social sciences to a much greater extent than is cur-
rently the case. To fit the hybrid – academic and professional – character of the law school,
research should emphasize questions of broad interest to lawyers and legal reformers. We
outline two lines of research, under the header of ‘Empirical Jurisprudence’, that, we believe,
should be of fundamental interest to members of the legal community at large: (i) law as the art of
persuasion; and (ii) law as social product and instrument of social planning. We show that the
questions demarcated by these two research programmes are, and have always been, of interest
to lawyers, claims to the autonomy of the legal discipline notwithstanding. We also argue that the
rapidly expanding and increasingly eclectic array of empirical research techniques – from text
mining to network analysis and machine learning – makes the turn to Empirical Jurisprudence
especially promising.
Keywords
Legal research, future, empirical, Europe
1. Introduction: The challenges facing European legal research
The European legal academy is at a crossroad. It faces challenges on multiple fronts, forcing it to
reconsider its teaching and research practices. First, the restructuration of the legal services indus-
try, precipitated by globalization, new technologies and changing demands, is affecting the job
* Professor, Leuven Centre for Legal Theory andEmpirical Jurisprudence, Leuven, Belgium
** Postdoctoral Fellow, Leuven Centre for Legal Theory and Empirical Jurisprudence, Leuven, Belgium
Corresponding author:
Arthur Dyevre, Leuven Centre for Legal Theory and Empirical Jurisprudence, Tiensestraat 41, 3000 Leuven, Belgium.
E-mail: arthur.dyevre@kuleuven.be
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(3) 348–371
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19840263
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prospects of law graduates.
1
Not surprisingly, this has led commentators to ask pointed questions
about the value and pertinence of the approach to legal education that continues to dominate the law
school curriculum throughout the continent.
2
Second, the research output of law schools is being
questioned.
3
Legal academics, at least in non-Anglophone countries, are less likely to publish in
English and less likelyto do so in peer-reviewed journals thanscholars in most other disciplines.The
cause of legal scholars is not helped by the fact that their discipline appears to lack an explicit
methodology.
4
At a time when the panels of research funding agencies are increasingly turning
interdisciplinary ,
5
legal academicsseem to lack criteria to evaluatetheir own research. Replicability,
hypothesis testing, external validity, sample representativeness – the criteria commonly used to
evaluate the quality of scientific research – are largely foreign to the scholarship they produce.
6
To many a lawyer, comparisons with other disciplines, when done along such lines, come across
as profoundly unfair. This is not only because the argument seems to overlook the existence of a
burgeoning European empirical legal literature
7
or, in some areas, the increasing influence of
political philosophy as a source of interdisciplinary insights.
8
Rather, what the comparison seems
1. R. Susskind, ‘The End of Lawyers?: Rethinking the nature of legal services (2010); Attack of the bean-counters’, The
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your-business-attack-bean-counters;The Economist, ‘A less gilded future’,The Economist (2011) http://www.economist.
com/node/18651114; A. Dyevre, ‘Fixing European Law Schools’, 25 European Review of Pri vate Law (2017),
p. 151–168.
2. See M. Reimann, ‘The American Advantage in Global Lawyering’, 78 Rabels Zeitschrift fuer auslaendisches und
internationales Privatrecht (2014), p. 1–36; A. Dyevre, 25 European Review of Private Law (2017); C. Jamin and M.
Xifaras, ‘De La Vocation Des Facult´esde Droit (Franc¸aises) de Notre Temps Pour La Science et L’enseignement’, 72
Revue interdisciplinaire d’ ´
etudes juridiques (2014), p. 107–140; S. Cassese, ‘Legal Education Under Fire’, 25 European
Review of Private Law (2017), p. 143–149.
3. R. van Gestel and H.W. Micklitz, ‘Why Methods Matter in European Legal Scholarship’, 20 European Law Journal
(2014), p. 292–316; R. Van Gestel, H-W. Micklitz and L. Miguel Poiares Pessoa Maduro, ‘Methodology in the New
Legal World’, EUI Working Paper No. 2012/13 (2012), http://cadmus.eui.eu/handle/1814/22016; R. Hirschl, ‘From
Comparative Constitutional Law to Comparative Constitutional Studies’, 11 International Journal of Constitutional
Law (2013), p. 1–12; L. Epstein and G. King, ‘The Rules of Inference’, 69 The University of Chicago Law Review
(2002), p. 1–133; C. Stolker, ‘Ja, Geleerd Zijn Jullie Wel!Over de Status van de Rechtswetenschap’, 78 Nederlands
Juristenblad (2003), p. 766–778; B. Vangeebergen and D. Van Daele, ‘Is de Studie van Het Recht Een Wetenschap En
Wie Kan Het Wat Schelen?’, 72 Rechtskundig Weekblad (2008), p. 986–994; E.L. Rubin, ‘The Practice and Discourse of
Legal Scholarship’, 86 Michigan Law Review (1988), p. 1835–1905; R. van Gestel et al., Rethinking Legal Scholarship:
A Transatlantic Dialogue (Cambridge University Press, 2017).
4. C. Stolker, Rethinking the law school: education, research, outreach and governance (Eleven, 2014), p. 223–224.
5. The most prominent illustration is the European Research Council (ERC), which has no ‘legal’ panel.
6. The sentiment that European legal scholarship is in crisis echoes discussions that took place in the US decades ago. See
E.L. Rubin, 86 Michigan Law Review (1988). The author observes: ‘These are not cheerful times for standard legal
scholarship. In fact, the field is widely perceived as being in a state of disarray. It seems to lack a unified purpose, a
coherent methodology, a sense of forward motion, and a secure link to its past traditions. It is bedeviled by a gnawing
sense that it should adopt the methods of other disciplines but it is uncertain how the process is to be accomplished. The
field even lacks a conceptual framework within which to criticize itself.’
7. See U. Sadl and H. Palmer Olsen, ‘Can quantitative methods complement doctrinal legal studies? Using citation network
and corpus linguistic analysis to understand international courts’, 30 Leiden Journal of International Law (2017),
p. 327–349; G. Shaffer and T. Ginsburg, ‘The empirical turn in international legal scholarship’, 106 American Journal of
International Law (2012), p. 1-46. To this new strand of literature must be added the older empirical Law & Economics
scholarship, see J .Klick, The Empirical Revolution in Law and Economics (Eleven International Publishing, 2011).
8. L. Azoulai, ‘Integration through law’ and us’, 4 International Journal of Constitutional Law (2016), p. 449–463, 461
(describing a critical turn in EU legal studies); J. Dickson and P. Eleftheriadis, Philosophical Foundations of European
Union Law (Oxford University Press, 2012).
Dyevre et al. 349
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