23 Pages Posted: 19 May 2010
Date Written: October 30, 2009
The debate concerning the status of legal doctrine revolves mainly around the question what legal academics should do. This article tries to answer the preliminary question what legal scholars are actually doing if they analyse legal doctrine. What kind of questions do they address, which theoretical framework is used? In this article it is argued that the theoretical framework commonly used by scholars who engage in doctrinal analysis is made up from the legal system itself. The legal system is not only the subject of inquiry, but its categories and concepts form at the same time the conceptual framework of legal doctrinal research. That is why methodological questions are usually addressed by engaging in reflections on the nature of the legal system itself. Those who maintain that there is a separate methodology for legal doctrinal research which is fundamentally different from the methodology of social sciences, argue that law is an autonomous system, to be differentiated from morals, politics or economics. Those who advocate a kind of legal research that makes room for other perspectives, sociological, philosophical, economical or political, clothe their argument equally in terms of considerations pertaining to the legal system itself, arguing that the legal system is open, responsive or purposive. After having investigated the rival pictures of law as open (Von Jhering) or autonomous (Hugo Grotius), the article concludes by examining the background of the contemporary uneasiness with law and legal doctrine and the current emphasis on the desirability of an empirical approach to law.
Keywords: Legal methodology, legal doctrine, autonomy of law, jurisprudence
Suggested Citation: Suggested Citation
Westerman, Pauline C., Open or Autonomous: The Debate on Legal Methodology as a Reflection of the Debate on Law (October 30, 2009). Available at SSRN: https://ssrn.com/abstract=1609575 or http://dx.doi.org/10.2139/ssrn.1609575
By Reza Banakar