A Method of (Free) Choice
By: Urška Šadl
Philosophical Questions at the Empirical Turn
By: Jakob v. H. Holtermann
Adopting a meta-perspective, this introductory contribution focuses on the ongoing empirical turn in legal scholarship as such. A recurrent issue of controversy and (self-) doubts has to do with understanding the intricate relationship between empirical findings and more traditional doctrinal approaches to law. This discussion centers on the following line of questions: i) In what sense do empirical studies form part of a legal science? ii) Why, if at all, should they be pursued at a law faculty? iii) What do empirical studies tell us about valid law? iv) What do they tell us about what obligations and rights people have? v) How do empirical findings relate to the kind of knowledge traditionally sought in the doctrinal study of law? Rather than attempting to give an answer to these questions, this contribution suggests a taxonomical framework within which discussion about them ought to take place. Based on an analysis of the different stances taken by prominent theorists on the relation between traditional doctrinal work and empirical work in the legal field, the author suggests that we should distinguish between the following three attitudes on the relation between traditional legal doctrinal studies and empirical studies of law: toleration, replacement, and synthesis.
Interviewing Lawyers: A Critical Self-Reflection on Expert Interviews as a Method of EU Legal Research
By: Emilia Korkea-aho and Päivi Leino
Interviews are commonly used as a research method in social and political science, where they are considered an effective means to elicit information on political and social behaviour. Interviews are less frequently used in legal research outside characteristically ‘socio-legal’ or ’empirical legal’ research, which is a type of legal research that relies on qualitative or quantitative methods. Drawing on the authors’ own experiences from conducting and using interviews with legal professionals as a source of legal research in the context of EU law, this article offers both a theoretical contribution and some practical insights. Theoretically, it builds on the existing literature on ‘expert’ interviews by examining lawyer interviews as a particular form of ‘expert’ investigations. We argue that interviews with lawyers pose particular challenges, which have been ignored and overlooked in general discussions on expert interviews. These challenges relate to access, confidentiality and control of research data, each of which is discussed in detail.
What ‘if’? The Emerging Epistemic Community of International Criminal Law
By: Jakob v. H. Holtermann and Anne Lise Kjær
Using international criminal law as a case study, this article aims to demonstrate how computer-assisted corpus linguistics combined with philosophy of law and sociology of science can help improve our understanding of legal knowledge and science. The article is built on a computer-driven corpus linguistic study of all judgements from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) from 1996 to 2017. To our surprise, this study revealed that the frequency of the use of ‘ifs’ in all judgements had exhibited an almost perfectly steady annual decline – from 93 per 100,000 words on average in 1996 to 34 in 2017. As a linguistic phenomenon, this contradicts how we would expect language to behave. In the search for an explanation, we move from linguistics into the philosophical and sociological study of (legal) knowledge and science. In the most general terms, the explanation links the disappearing of ‘ifs’ to the emergence of international criminal law as a distinct specialized legal science, a separate sub-discipline constituted by a professionally shared corpus of knowledge – or of ‘a substantial body of jurisprudence on genocide, crimes against humanity, war crimes, as well as forms of individual and superior responsibility’, as the ICTR put it upon its closure.
Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law
By: Amalie Frese and Henrik Palmer Olsen
Recent years have seen increased interest in data-driven methods in legal research. Technologies provide new automated alternatives to traditional doctrinal approaches, which rely on manual information retrieval. In this article, we address one aspect of this development. On the basis of a citation network containing judgments on Article 14 of the European Convention of Human Rights, we identify which cases are most frequently cited and explicitly used in the legal argumentation of the European Court of Human Rights. We subsequently compare our findings with presentations of Article 14 in German, French and British textbooks. We aim to demonstrate that 1) network analysis can provide relevant input to legal analysis by relying on objective measures of case importance and 2) scholarship relying on traditional doctrinal methods is more dependent on the authors’ subjective outlook than necessary.