This paper raises two methodological questions from a philosophical perspective: (i) what is involved in a functionalist approach to law and (ii) what should be the focus of such an approach? To answer these questions, I will take two steps with both. To begin with, I argue that Pettit’s view on functionalist approaches may be made relevant for law; functionalist accounts target a virtual mechanism that explains why a system will be resilient under changes in either the system or its environment. Secondly, I make a distinction between two interpretations of his key-concept ‘resilience’, one in mechanical, the other in teleological terms. With regard to the second question I will take two steps as well. I argue why it does not make sense to ascribe wide functions to law, followed by a plea for a limited view on the function of law. This limited view is based on a teleological understanding of the law’s resilience. I argue that these two modes are interrelated in ways that are relevant for the interdisciplinary study of law. |
Artikel |
Law and Functionalism: The Limited Function of Law |
Auteurs | Bert van Roermund |
Samenvatting |
Artikel |
Lessen geleerd: onderwerp, object, en theoretisch kader van rechtswetenschappelijk onderzoek |
Auteurs | mr.dr. Maria Geertruida IJzermans |
Artikel |
Methodology of Comparative Legal Research |
Auteurs | Mark Van Hoecke |
SamenvattingAuteursinformatie |
In this paper, an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism. |
Artikel |
Recht en Utilisme Een pleidooi voor het utilisme als richtlijn voor de wetgever |
Auteurs | Jaap Hage |
Samenvatting |
In this article I plead for utilitarianism as guideline for the editor. The article consists mostly of rebuttals of a number of traditional objections against utilitarianism. In particular (but not exclusively) the following objections are discussed: A substantial part of the article consists of a discussion of coherentism as method for, amongst others, normative reasoning. |
Artikel |
Dworkin’s Constructive Interpretation as a Method of Legal Research. |
Auteurs | Francisca Christina Wilhelmina de Graaf LL.M |
SamenvattingAuteursinformatie |
Central to this contribution is the question whether Dworkin’s theory of constructive interpretation as a method of applying law for the judge, can be used as a method of legal-dogmatic research. Constructive interpretation is a method of legal interpretation that aims to find a normative unity in the diversity of rules that characterize a legal system. In order to find an answer to this question, the key elements of Dworkin’s theory are explained and applied to the author’s PhD research. Methodological difficulties that could give rise to problems when applying Dworkin’s theory, are investigated. In the end, the author concludes that since the judge and the scholar use quite the same methods when interpreting law, the principles of constructivism should fit legal research well, even though some aspects of Dworkin’s theory are difficult to operationalize in practice. As a leading notion however, constructivism constitutes a workable method of legal research. |