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Artikel

Access_open Ethiek en recht, actio in distans

Special issue on Education in (Professional) Legal Ethics, ­Emanuel van Dongen & Jet Tigchelaar (eds.)

Tijdschrift Law and Method, april 2021
Trefwoorden juridische beroepspraktijk, juridische opleiding, ethiek
Auteurs Marcel Becker
SamenvattingAuteursinformatie

    Deze tekst belicht achtergronden van het ethiekonderwijs aan juristen, zoals dat aan de Radboud Universiteit vorm krijgt. Centraal staat eerst de praktisch én theoretisch relevante spanning tussen ethiek en recht. Na een verkenning van deze spanning bespreekt Marcel Becker de status van ethische theorieën en de meerwaarde van sociaalwetenschappelijke kennis voor ethiekonderwijs.


Marcel Becker
Dr. Marcel Becker is associate professor Ethics and Political Philosophy, Radboud Universiteit, Nijmegen.
Artikel

Access_open Teaching Socio-Legal Research Methodology: Participant Observation. Special Issue on Active Learning and Teaching in Legal Education

Tijdschrift Law and Method, januari 2019
Trefwoorden Participant observation, sociolegal research, methodology, teaching
Auteurs Marc A. Simon Thomas
SamenvattingAuteursinformatie

    The basics of how to conduct participant observation are not taught in law schools. This is striking because this methodology has become a common feature of qualitative research and could be very useful in sociolegal research. For those interested in studying ‘law in practice’ instead of ‘law in the books’, qualitative research methods like participant observation are inevitable. However, participant observation is, at best, secondary in the literature on qualitative research in the sociolegal discipline, while there is no guidance on how to conduct this technique whatsoever.Therefore, this article is written with two audiences in mind: It should serve as a useful reference and guide for those who teach qualitative research methods in legal education and who are looking to enhance their knowledge and skills concerning participant observation; it is also meant to serve as a basic primer for the beginning sociolegal researcher who is about to become a participating observer for the first time.


Marc A. Simon Thomas
Utrecht University, School of Law, Institute of Jurisprudence, Constitutional and Administrative Law, Legal Theory; m.a.simonthomas@uu.nl.
Boekbespreking

Access_open Kestemont, Handbook on Legal Methodology. A Review

(Book review of Kestemont, L. (2018). Handbook on Legal Methodology. From Objective to Method. Cambridge: Intersentia, xiii + 97 pp.)

Tijdschrift Law and Method, januari 2019
Auteurs Wibren van der Burg
Auteursinformatie

Wibren van der Burg
Wibren van der Burg, Erasmus School of Law, Erasmus University of Rotterdam and School of Law, Queen Mary University of London.

    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.
Artikel

Access_open Educating the Legal Imagination. Special Issue on Active Learning and Teaching in Legal Education

Tijdschrift Law and Method, oktober 2018
Trefwoorden imagination, artefact, active learners, metaphors
Auteurs Maksymilian Del Mar
SamenvattingAuteursinformatie

    This paper presents a basic model of the imagination and offers pedagogical resources and activities for educating three related abilities to imagine. The basic model is that to imagine is to combine the process of awareness, framing and distancing, and the process of, simultaneously actively participate, by doing things with and thanks to artefacts. Artefacts, in turn, are fabricated forms (here, forms of language) that signal their own artifice and invite us to do things with them, across a spectrum of sensory, kinetic, and affective abilities. Modelled in this way, imagination plays a crucial role in legal reasoning, and is exemplified by the following kinds of artefacts in legal discourse: fictions, metaphors, hypothetical scenarios and figuration. These artefacts and their related processes of imagination are vital to legal reasoning at many levels, including the level of the individual lawyer or judge, the level of interaction in courtrooms, and the level of legal language over time. The paper offers nine learning activities corresponding to educating three abilities in the legal context: 1) to take epistemic distance and participate; 2) to generate alternatives and possibilities; and 3) to construct mental imagery.


Maksymilian Del Mar
Department of Law, Queen Mary University of London.

    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.

    Comparative methodology is an important and a widely used method in the legal literature. This method is important inter alia to search for alternative national rules and acquire a deeper understanding of a country’s law. According to a survey of over 500 Dutch legal scholars, 61 per cent conducts comparative research (in some form). However, the methodological application of comparative research generally leaves much to be desired. This is particularly true when it comes to case selection. This applies in particular to conceptual and dogmatic research questions, possibly also allowing causal explanations for differences between countries. This article suggests that the use of an interdisciplinary research design could be helpful, and Hofstede’s cultural-psychological dimensions can offer a solution to improve the methodology of selection criteria.


Dave van Toor
D.A.G. van Toor, PhD LLM BSc works as a researcher and lecturer in Criminal (Procedural) Law and Criminology at the Universität Bielefeld.

    This article examines the main assumptions and theoretical underpinnings of case study method in legal studies. It considers the importance of research design, including the crucial roles of the academic literature review, the research question and the use of rival theories to develop hypotheses and the practice of identifying the observable implications of those hypotheses. It considers the selection of data sources and modes of analysis to allow for valid analytical inferences to be drawn in respect of them. In doing so it considers, in brief, the importance of case study selection and variations such as single or multi case approaches. Finally it provides thoughts about the strengths and weaknesses associated with undertaking socio-legal and comparative legal research via a case study method, addressing frequent stumbling blocks encountered by legal researchers, as well as ways to militate them. It is written with those new to the method in mind.


Lisa Webley

    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.
    The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research outside rule and case oriented comparative law offers varying approaches, which could usefully be applied in comparative research. Six methods have been identified: the functional method, the structural one, the analytical one, the law-in-context method, the historical method, and the common core method. Basically, it is the aim of the research and the research question that will determine which methods could be useful. Moreover, different methods may be combined, as they are complementary and not mutually exclusive.This paper focuses on scholarly comparative legal research, not on the use of foreign law by legislators or courts, but, of course, the methodological questions and answers will largely overlap.


Mark Van Hoecke
Professor of Comparative Law at Queen Mary University of London, and Professor of Legal Theory and Comparative Law at Ghent University

    This article shows that the debate about the possibility and desirability of a rigid distinction between discovery and justification is being muddled because of differences and ambiguities in the way that different writers use the terms ‘discovery,’ ‘justification,’ and related terms. The article argues that merely distinguishing between ‘discovery’ and ‘justification’ is not precise enough, and that we should make a distinction between different elements within each of these contexts. I propose a six-fold classification, through which we can identify reasons, acts, and processes that play a role both in the context of discovery and in the context of justification. This six-fold classification enables us to move forward from debating whether discovery and justification can be rigidly separated, towards articulating how each element (reasons, acts, and processes) has a role to play in each of the contexts (discovery and justification), and how these elements and contexts are related.


Luiz Silveira
Artikel

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

Teaching International Law from a Critical Angle

Tijdschrift Law and Method, 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 What Epistemology Would Serve Criminal Law Best in Finding the Truth about Rape?

Tijdschrift Law and Method, 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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