“Even when laws have been written down, they ought not always to remain unaltered.” – Aristotle. Should legal academics concern themselves with transcendental legal themes or should they resign themselves to work within the legal system? Jan Smits examines what legal academics actually do, questioning the traditional approach to the study of law.
Traditional legal scholarship has been under attack for quite some time now. In his famous book Academic Tribes and Territories, Tony Becher qualified traditional work in British legal academia as ‘narrow, conservative, illiberal, unrealistic and boring.’ It would focus too much on doctrinal work and pay too little attention to the more interesting ‘big’ questions of real relevance to society. Becher’s harsh words remind us of the status of the legal discipline vis-à-vis other fields of academic research: too often, the study of law is considered the odd one out in the modern university. While this special position was without severe consequences until not too long ago, this has rapidly changed in most countries in the last few years: universities and funding organisations increasingly allocate money on basis of the position Faculties and academics have on European and global rankings. These rankings are often based on the amount of publications in international journals. This is a problem for jurists writing in their own language about their own national law. In addition, legal scholars often have a hard time convincing colleagues from other disciplines about their methodology. Traditionally, the method of the legal academic is largely similar to that of the judge, but this seems to fall short of the methodological requirements modern scholarship requires. This explains why a debate has evolved about the aims and methods of the academic study of law. This debate takes place in a wide variety of countries including the United Kingdom, Germany, France, the Netherlands and the United States.
What I find particularly interesting about this debate is that it forces us to think through what we, as legal academics, actually do when we research or teach the law, and what it is that we should do. Should legal academics mainly study (national or international) legislation and case law and consider how to accommodate these in the legal ‘system’ (an activity that is increasingly regarded as lacking in creativity), or should they write about much more elevated themes? Another question is what methods should be used in legal research, and how to assess this research, prompting the question of which research is ‘better’ and why this would be the case.
It is clear that legal scholars can aim for different things when they do research. They can describe the existing law (as happens in most doctrinal work), focus on the question of what is law (as in legal theory), or research the effects law has on society (as in empirical legal science). In my view, however, these three activities do not capture the core of legal scholarship. I believe that jurists excel in answering the normative question of what the law ought to be (‘What is allowed in law and what is not?’). For example, should disinheriting one’s children be permitted? Should death penalty be imposed for criminal offences? Under which circumstances is it justified to go to war? Should constitutional review be allowed? May shipwrecked sailors eat their weakest companion if they are likely to die of starvation? To answer these and similar questions is in my view the pre-eminently legal approach. I find it extremely important to make this explicit: while biologists, mathematicians and economists have no trouble in explaining to the outside world what their main activity is, jurists find this much more difficult. As Nobel Prize winner Gary Becker rightly observed, economists are acutely aware of the fact that there is such a thing as the ‘economic way of looking at life’ [http://www.nobelprize.org/nobel_prizes/economics/laureates/1992/becker-lecture.html]. There is a similar way to approach the law: the academic study of law is then not so much about the substantive law of one jurisdiction, but it is much more about a method. To me, this method consists of showing how a normative question can be answered in fundamentally different ways with reference to different jurisdictions. This makes legal science an international discipline.
In my forthcoming book The Mind and Method of the Legal Academic I consider these and other points in detail. Apart from a discussion about the aims and methods of legal research, it also discusses how we should teach the law and how we can best organise our law faculties and assess their achievements.
Jan Smits holds the Chair of European Private Law at Maastricht University and is Research professor of Comparative Legal Studies at the University of Helsinki. He is also the academic director of the Maastricht European Private Law Institute and HiiL Chair Visiting Professor Internationalisation of Law [http://www.hiil.org/prof-jan-m-smits]. His research interests are in the field of private law, legal theory, comparative law and internationalisation of law. In 2010 he was elected member of the Royal Netherlands Academy of Arts and Sciences (KNAW). Apart from his academic activities, Jan Smits is an enthusiastic long distance runner.