Introduction: The Importance of Methodology in Public Law Research

Forthcoming in Daly & Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, 2023)

19 Pages Posted: 3 Jul 2022

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Joe Tomlinson

University of York - York Law School

Date Written: June 23, 2022

Abstract

Public law academics are coming under increasing pressure to be more open about methodology. In part, the pressure results from the increasing sophistication and ambition of legal scholarship. Where lawyers were writing to develop arguments about how other participants in the legal community should develop the law, shared understandings about methodology could safely be taken for granted: the ultimate question was “would a judge find this convincing?” Instinct and experience allowed lawyers to answer this ultimate question.

But legal scholarship is, more and more, directed at other scholars and, sometimes, scholars in other fields. Shared understandings about methodology can no longer be taken for granted. Indeed, a scholar proposing a particular approach to a problem might well meet with questions such as, “Why should I care?” or “Why should I agree with you?” Persuasive answers to such questions often require some discussion of methodology. Even if much legal scholarship is still directed at achieving practical change in the legal community, even the scholars engaged in such work will find themselves being asked these questions. For when questions begin to be posed – by examiners of doctoral theses, peer reviewers, editors at publishing houses, colleagues, and students – they create expectations about the norms of legal scholarship: it would not be fair to insist on methodological rigour from one doctoral student and let another pass based on unarticulated shared understandings about methodology. Even successful authors of widely read treatises might therefore find themselves asked difficult questions about methodological approaches.

This book is about methodology in public law in the English-speaking common-law world. To date, there is no general collection which speaks to methodology in public law. Therefore, this book fills a large and important gap in the legal literature by providing an overview of research methodologies in public law—a broad field of research comprising constitutional law, administrative law, legislation, regulation, and legal theory. We do not seek to define “public law” any further than this, for pragmatic and principled reasons. From a pragmatic perspective, any attempt to define public law is apt to upset at least some readers: a definition cannot, by definition, include everything; and some researchers might feel excluded by our definitional choices. If attention to methodology is as important as we think it is, we should construct as big a tent as possible, to ensure that a multiplicity of voices and a plurality of perspectives are included. From a principled standpoint, defining “public law” in the common law tradition might be impossible and any attempt to do so would be highly contestable. Whereas civilian systems have a fully worked-out category of “public law”, common lawyers have no equivalent. Public law exists in the ether and cannot be distilled to its pure essence. The best we can do, therefore, is to focus our attention on the legal aspects of the creation and regulation of public power.

In this collection, you will find short and accessible chapters on distinct methodological approaches within particular areas of public law, written by leaders in the field. Each chapter will provide a thorough introduction to the key features, characteristics, and challenges of a public law methodology. Students and scholars of public law will be able to look to this collection as a guide on the variety of ways of conducting research in public law. Each chapter will address three central questions. First, what unique perspective/insight does the approach provide? Second, what are the key features of this approach to public law research, i.e. how is this research conducted? Third, what are the key challenges facing a researcher adopting this approach? We could not hope to include all methodologies which have been or could be applied to studying public law, but we have sought to include many of the most common approaches and, beyond that, a diverse range.

We have separated the chapters into four categories: the traditional, the institutional, the technical, and the critical. The labels are, hopefully, self-explanatory. Traditional scholarship is historical, interpretive and doctrinal. In the traditional category, we place three chapters: John Allison on historical approaches to public law; Farrah Ahmed and Adam Perry on interpretation; and Jason Varuhas on doctrinal scholarship.

Institutional scholarship focuses on institutions – we have chosen the well-known branches of government as the objects here (the legislative, judicial, and executive arms), though our lessons could be applied to other organs of public power as well. Louise Thompson writes on legislative process, Emmett Macfarlane analyses the judiciary and we describe scholarly approaches to the administrative state.

By technical, we mean approaches which involve a degree of abstraction from the concerns of traditional scholarship, by engaging in theoretical reflection, comparative analysis or using empirical means. Under the technical heading are grouped three further chapters: Theunis Roux on comparative methodology; Martin Loughlin and Samuel Tschorne on theoretical approaches to public law; and Sarah Nason on empirical research.

Lastly, in the critical section, we group contributions which seek to challenge the received wisdom generated by other methodological approaches: the contributions of Paul O’Connell on Marxism, Helen Carr and Edward Kirton-Darling on socio-legal studies and Janne Promislow on indigenous legal traditions. It is worth acknowledging at the outset that there are many more critical approaches than are catered for in this collection. The exigencies of assembling an edited collection during the COVID-19 pandemic meant that, unfortunately, this collection lacks chapters on feminist or critical race theory. Nonetheless, Carr and Kirton-Darling, as well as Promislow, provide a roadmap for such research and, in his deconstructive approach to legal doctrine – albeit from a Marxist rather than feminist or critical race perspective – O’Connell demonstrates the methodological tools which may be used by feminist or critical race researchers.

Without an account of public law methodology, it is often difficult to convince academics from other fields of the desirability of funding research in public law, the impact and quality of public law scholarship, the need to hire public law scholars as colleagues, and so on. Using this collection as a guide will, we hope, enable public law academics to make stronger arguments about the importance of their scholarship, which is vital both for the career progression of individuals and the health of research in public law.

Keywords: methodology, public law, doctrine, history, interpretation, theory, critical studies, empirical research

Suggested Citation

Daly, Paul and Tomlinson, Joe, Introduction: The Importance of Methodology in Public Law Research (June 23, 2022). Forthcoming in Daly & Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, 2023), Available at SSRN: https://ssrn.com/abstract=4144983

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Joe Tomlinson

University of York - York Law School ( email )

University of York
Heslington, York YO10
United Kingdom

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