A European Legal Method? On European Private Law and Scientific Method
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
January 1, 2008
European Law Journal, Vol. 15, No. 1, pp. 20-45, 2009
Centre for the Study of European Contract Law Working Paper Series No. 2008/02
This working paper examines the relationship between legal method and European private law. It reaches the following conclusions:
Legal scholars should not try, out of theory guilt, to imitate the natural sciences. If science is defined narrowly as empirical science then legal scholarship will, by definition, never be a science without completely changing its nature. There is no epistemic distinction between the kind of knowledge produced by the natural sciences and that by legal scholars, nor is their such a distinction between traditional legal scholarship (from the internal perspective) on the one hand, and the external perspectives on the law such as the economic analysis of law, on the other, or between the study of national and more international parts of the law like European law. Any existing differences relate, in particular, to the research questions and the different agreed methods and practices for answering these questions. Each of these questions and the conventional or unconventional way of answering it, is equally legitimate from an academic perspective - in this sense anything goes, albeit that from a social, cultural or economic point of view some questions are rightly considered to be more important than others.
A (debate on a) European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. There are at least two political dimensions to the idea of a European legal method. First, the question of who aims to exercise power over whom. Secondly, the question of what should be the underlying values on which this common European legal method should be based.
The Europeanization of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Secondly, because of the less formal legal culture the (formerly) external perspectives have easier access and play an increasing role as policy considerations.
At least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as one progressively developing multi-level system that can be studied from the inside. Any European legal method should fit the (hybrid) character of this dynamic multi-level system.
Number of Pages in PDF File: 38
Keywords: legal method, european private law, scientific method, legal theoryAccepted Paper Series
Date posted: March 28, 2008 ; Last revised: April 8, 2011
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