Zoekresultaat: 17 artikelen

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Tijdschrift Law and Method x

    In legal education, criticism is conceived as an academic activity. As lecturers, we expect from students more than just the expression of their opinion; they have to evaluate and criticize a certain practice, building on a sound argumentation and provide suggestions on how to improve this practice. Criticism not only entails a negative judgment but is also constructive since it aims at changing the current state of affairs that it rejects (for some reason or other). In this article, we want to show how we train critical writing in the legal skills course for first-year law students (Juridische vaardigheden) at Vrije Universiteit Amsterdam. We start with a general characterization of the skill of critical writing on the basis of four questions: 1. Why should we train critical writing? 2. What does criticism mean in a legal context? 3. How to carry out legal criticism? and 4. How to derive recommendations from the criticism raised? Subsequently, we discuss, as an illustration to the last two questions, the Dutch Urgenda case, which gave rise to a lively debate in the Netherlands on the role of the judge. Finally, we show how we have applied our general understanding of critical writing to our legal skills course. We describe the didactic approach followed and our experiences with it.


Bart van Klink
Bart van Klink is Professor of Legal Methodology, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

Lyana Francot
Lyana Francot is Associate Professor of Legal Theory, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

    This article introduces the concepts of play and playfulness within the context of legal-philosophical education. I argue that integrating play and playfulness in legal education engages students and prepares them for dealing with the perpetual uncertainty of late modernity that they will face as future legal professionals. This article therefore aims to outline the first contours of a useful concept of play and playfulness in legal education. Drawing on the work of leading play-theorists Huizinga, Caillois, Lieberman and Csikszentmihalyi, play within legal education can be described as a (1) partly voluntary activity that (2) enables achievement of learning goals, (3) is consciously separate from everyday life by rules and/or make believe, (4) has its own boundaries in time and space, (5) entails possibility, tension and uncertainty and (6) promotes the formation of social grouping. Playfulness is a lighthearted state of mind associated with curiosity, creativity, spontaneity and humor. Being playful also entails being able to cope with uncertainty. The integration of these concepts of play and playfulness in courses on jurisprudence will be illustrated by the detailed description of three play and playful activities integrated in the course ‘Introduction to Legal Philosophy’ at the Vrije Universiteit Amsterdam.


Hedwig van Rossum
Mr. H.E van Rossum, LL.M., is a lecturer-researcher in the Department of Legal Theory at the Vrije Universiteit Amsterdam and has been teaching the freshman course ‘Introduction to Legal Philosophy’ since 2011.

    Jurisprudence is a domain related to terms such as rules, morality, principles, equality, justice, etc. Legal scholars have to teach the meaning of these terms. However, these are not terms, one can comprehend by just reading their standard definition. These are terms one must digest and learn to use. My argument is that literature or the law and literature movement can be used as a tool in order to explain and discuss these terms. For instance, beyond simply explaining or teaching legal positivism and natural law, Antigone helps students reflect upon the distinction between them. To cite another example, reading Nana can help students think about sex-workers in a way they would never think before. Moreover, the literature can be a useful means in teaching critical movements in law, such as critical legal studies, feminist legal theory and critical race theory. Finally, the terms I stated at the beginning are not only terms of jurisprudence, they are terms we should use properly in order to construct a healthy legal environment. Therefore, to get students comprehend these terms is a crucially important aim. I argue that literature can be a tool in order to achieve this aim.


E. Irem Aki
Dr. E.I. Aki was a research assistant at Ankara University Faculty of Law until 2017; iremaki@gmail.com.

    This paper starts by reviewing empirical research that threatens law and economics’ initial success. This research has demonstrated that the functioning of the law cannot be well understood based on the assumption of the rational actor and that policies which are based on this assumption are likely to be flawed. Subsequently, three responses to this criticism are discussed. Whereas the first response denounces this criticism by maintaining that the limitations attributed to the rational actor can easily be incorporated in rational choice theory, the second response welcomes the criticism as an opportunity to come up with an integrative theory of law and behavior. The third response also takes the criticism seriously but replaces the aspiration to come up with such an integrative theory by a context-sensitive approach. It will be argued that the first two responses fall short while the third response offers a promising way to go forward.


Peter Mascini
Prof. dr. P. Mascini, Erasmus School of Law and Erasmus School of Social and Behavioural Sciences, Erasmus University Rotterdam.

    This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. The paper discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. The law as a normative discipline has its own constraints of justifiability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim.


Ioanna Tourkochoriti
School of Law, NUI Galway, Ireland.

    In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the “competing vision of who we are and who we wish to be as a political community” (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition.
    The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical “horizontal” comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.


Antonia Baraggia
Emile Noël Fellow, Jean Monnet Center for International and Regional Economic Law & Justice, NYU School of Law and Post-doc Fellow in Constitutional Law, University of Milan. For helpful comments on an earlier draft I am grateful to Luca Pietro Vanoni, Sofia Ranchordas and two anonymous reviewers.

    Both H.L.A. Hart and John Searle repeatedly refer to games in their work on the concept of law and the construction of social reality respectively. We can argue that this is not a coincidence, Hart’s analysis of law as a system of primary and secondary rules bears close resemblances to Searle’s analysis of social reality as a system of regulative and constitutive rules and the comparison to games leads to interesting insights about the ontology of law and legal epistemology. The present article explores both the institutional theory of law that can be devised on the basis of the work of Hart and Searle, the method of analytical philosophy they employ and the particular consequences that can be deduced for legal research from the resulting legal theory.


Arie-Jan Kwak
Dr. A.J. Kwak, Faculty of Law, Leiden University, Leiden, The Netherlands.

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.


Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.

    Legal novices are generally not very well educated in the do’s and don’ts of empirical legal research. This article lays out the general principles and discusses the most important stumbling blocks on the way forward. The presentation starts at the formulation of a research question. Next, the methodology of descriptive research (operationalization and measurement, sampling and selection bias) is briefly addressed. The main part of the article discusses the methodology of explanatory research (causal inference, experimental and quasi-experimental research designs, statistical significance, effect size). Medical malpractice law is used as a central source of illustration.


Ben C.J. van Velthoven
Associate professor of Law and Economics at Leiden Law School. I wish to thank Nienke van der Linden, Ali Mohammad and Charlotte Vrendenbargh from Leiden Law School and two anonymous reviewers and the editors of this journal for helpful comments on earlier drafts.
Artikel

Access_open On Experiments in Empirical Legal Research

Tijdschrift Law and Method, maart 2016
Auteurs Prof. dr. Kees van den Bos en Mr. Liesbeth Hulst B.Sc., M.Sc.
Samenvatting

    The current paper presents some observations on experiments in empirical legal research. The paper notes some strengths and weakness of the experimental method. The paper distinguishes between experiments run in controlled laboratory settings and experiments conducted in field settings and notes the different goals the different types of experiments generally have. The paper identifies important stumbling blocks that legal researchers who are new to setting up experiments may face and proposes that focusing the research in a constructive and independent way is important to overcome these problems. The necessity of running multiple studies to overcome other problems are discussed as well. When conducted in this way, experiments may serve an important role in the field of empirical legal studies and may help to further explore the exciting issues of law, society, and human behavior.


Prof. dr. Kees van den Bos

Mr. Liesbeth Hulst B.Sc., M.Sc.

    Public law is sometimes said to deal with distributive justice. Such allocation issues are at least very dominant when public authorities grant only a limited number of public rights (authorizations, subsidies, etc.) and the number of applicants exceeds this maximum. The characteristics common to these ’limited public rights’ raise the question whether there are some general allocation rules applying to any allocation of limited public rights. This article shows how economic allocation theory can be helpful in constructing general allocation rules as a corollary of general legal principles. Allocation theory turns out to provide for general concepts and results clarifying general allocation rules and revealing mutual connections. Extending this allocation perspective from limited public rights to public law in general requires the hidden allocation issues in public law to be unveiled.


Johan Mr.dr. Wolswinkel
C.J. Wolswinkel LLM MSc PhD is Assistant Professor at the VU University Amsterdam and participates in the research programme Public Contracts: Law and Governance of the VU Centre for Law and Governance. This article expands some methodological issues developed in his PhD thesis De verdeling van schaarse publiekrechtelijke rechten. Op zoek naar algemene regels van verdelingsrecht (The Hague: Boom Juridische uitgevers 2013).
Artikel

Access_open Skeptical Legal Education

How to Develop a Critical Attitude?

Tijdschrift Law and Method, februari 2013
Trefwoorden academic learning, skepticism, Oakeshott, judgment, Critique
Auteurs Bart van Klink en Bald de Vries
SamenvattingAuteursinformatie

    Law teachers at the university want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted? In this article we intend to elucidate the role that critical thinking may play in legal education. We will introduce the idea of skeptical legal education, which is to a large extent based on Michael Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential. Subsequently, the article presents a teaching experiment, where students, based on self-organization, study and discuss basic texts in order to encourage critical thinking.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.

Bald de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.
Artikel

Access_open ‘I’d like to learn what hegemony means’

Teaching International Law from a Critical Angle

Tijdschrift Law and Method, februari 2013
Trefwoorden Bildung, cultural hegemony, international law, teaching
Auteurs Christine E.J. Schwöbel-Patel
SamenvattingAuteursinformatie

    This contribution explores the possibility of teaching international law in a critical fashion. I examine whether the training which is taking place at law schools is establishing and sustaining a cultural hegemony (a term borrowed from Antonio Gramsci). I ask whether the current focus on technical practice-oriented teaching is a condition which should be questioned, even disrupted? In my thoughts on reorientations of this culture, a central term is the German word Bildung. Bildung refers to knowledge and education as an end in itself (John Dewey) as well as an organic process (Hegel), and therefore incorporates a wider understanding than the English word ‘education’. In terms of international law, a notion of Bildung allows us to acknowledge the political nature of the discipline; it may even allow us to ‘politicize’ our students.


Christine E.J. Schwöbel-Patel
Christine E.J. Schwöbel-Patel is Lecturer in Law at University of Liverpool.
Artikel

Access_open The Role of Hierarchy, Example, and Language in Learning

A Confrontation between a Liberal and a ‘Critical’ Understanding of Legal Education

Tijdschrift Law and Method, januari 2013
Trefwoorden skeptical legal education, academic learning, Critique, Knowledge, CLS, liberalism, power
Auteurs Bart van Klink
SamenvattingAuteursinformatie

    In The Voice of Liberal Learning, Michael Oakeshott characterizes learning as a strictly non-instrumental activity. In schools and universities, knowledge is acquired for its own sake. Obviously, this liberal understanding of education differs fundamentally from a ‘critical’ notion of education as advocated by Duncan Kennedy and other members of the CLS movement. From a ‘critical’ perspective, Oakeshott’s conception may be seen as yet another attempt – typical for liberalism and conservatism alike – to depoliticize the process of knowledge production and reproduction and to conceal (and thereby to strengthen and legitimize) its effects on the distribution of power, wealth, status and so forth in society. In this paper, the author will confront both views with each other, especially within the context of legal education. The general purpose is to develop a notion of skeptical legal education, which is to a large extent based on Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.
Artikel

Access_open A Plea for Rigorous Conceptual Analysis as a Central Method in Transnational Law Design

Offer and Acceptance as Juridical Acts in the Draft Common Frame of Reference as a Case in Point

Tijdschrift Law and Method, januari 2013
Trefwoorden DCFR, Conceptual Analysis, Juridical Acts, Transnational Law Design
Auteurs Rudolf Rijgersberg en Hester van der Kaaij
SamenvattingAuteursinformatie

    Although shared legal problems are generally easily identified in transnational law design, it is considerably more difficult to design frameworks that transcend the peculiarities of local law univocally. The following exposition is a plea for giving more prominence to rigorous conceptual analysis in transnational law design in order to disambiguate the terms used in such frameworks. It does this by taking the formation of contracts in the model rules of the Draft Common Frame of Reference (DCFR) as a case in point. A conceptual analysis of the basic legal notion ‘juridical act’ in its model rules for contract law shows that the DCFR allows for two mutually conflicting interpretations of contract formation that are by no means fictional. A rigorous conceptual analysis of basic legal notions in the formative stages of transnational law design would have prevented a conflation of two legal traditions resulting in an ambiguous legal framework. As such it is an indispensable method for achieving a univocal interpretation of the legal end product.


Rudolf Rijgersberg
Rudolf Rijgersberg is assistant professor Methods and Foundations of Law at Maastricht University.

Hester van der Kaaij
Hester van der Kaaij is promovendus PhD candidate in Legal Theory at Maastricht University.
Artikel

Access_open Exciting Times for Legal Scholarship

Tijdschrift Law and Method, februari 2012
Trefwoorden legal methodology, law as an academic discipline, ‘law and …’-movements, legal theory, innovative and multiform legal scholarship
Auteurs Jan Vranken
SamenvattingAuteursinformatie

    Until recently, legal-dogmatic research stood at the undisputed pinnacle of legal scientific research. The last few years saw increasing criticism, both nationally and internationally, levelled at this type of research or at its dominant role. Some see this as a crisis in legal scholarship, but a closer look reveals a great need for facts, common sense, and nuance. Critics usually base their calls for innovation on a one-dimensional and flawed image of legal-dogmatic research. In this article, the author subsequently addresses the various critical opinions themselves and provide an overview of the innovations that are proposed. He concludes that there are a lot of efforts to innovate legal scholarship, and that the field is more multiform than ever, which is a wonderful and unprecedented state of affairs. This multiformity should be cherished and given plenty of room to develop and grow, because most innovative movements are still fledgling and need time, sometimes a lot of time, to increase in quality. It would be a shame to nip them in the bud now, merely because they are still finding their way. In turn, none of these innovative movements have cause to disqualify legal-dogmatic research, as sometimes happens (implicitly), by first creating a straw-man version of the field and then dismissing it as uninteresting or worse. That only polarises the discussion and gains us nothing. Progress can only be achieved through cooperation, with an open mind towards different types of legal research and a willingness to accept a critical approach towards their development. In the end, the only criterion that matters is quality. All types of research are principally subject to the same quality standards. The author provides some clarification regarding these standards as well.


Jan Vranken
Jan Vranken is hoogleraar Methodologie van het privaatrecht aan de Universiteit van Tilburg.
Artikel

Access_open What Epistemology Would Serve Criminal Law Best in Finding the Truth about Rape?

Tijdschrift Law and Method, januari 2012
Trefwoorden epistemology (‘scientific’ versus ‘critical’), rape in criminal law, normative classification, empirical evidence
Auteurs Nicolle Zeegers
SamenvattingAuteursinformatie

    This article answers the question of why and in what respects a ‘critical epistemology’, compared to a ‘scientific epistemology’, offers the better alternative for criminal law investigations into rape. By resuming the recent debate concerning the importance of scientific truth in criminal law investigations the author shows that this debate overlooks the cultural values that are necessarily involved in many criminal law cases. Such involvement of cultural values will be illustrated with a historical overview of law cases concerning rape in the context of a heterosexual relationship. Whereas value-free knowledge is the ideal strived for by a ‘scientific epistemology’, the basic idea of a critical epistemology is that knowledge is theory dependent and not free of values. Therefore this epistemology offers the best guarantees for acknowledging the values that are necessarily involved in many criminal law inquiries.


Nicolle Zeegers
Dr. Nicolle Zeegers is universitair docent Politieke Wetenschappen aan de Rijksuniversiteit Groningen.
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