The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law. |
Search result: 286 articles
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Journal | Erasmus Law Review, Issue 2 2015 |
Authors | Sanne Taekema and Wibren van der Burg |
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Journal | Erasmus Law Review, Issue 2 2015 |
Authors | Matyas Bodig |
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This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities. |
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Journal | Erasmus Law Review, Issue 3 2015 |
Authors | Annie de Roo |
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The article takes as its point of departure some of the author’s multidisciplinary projects. Special attention is given to the question of whether the disciplines united in the various research team members already constituted a kind of ‘inter-discipline’, through which a single object was studied. The issue of how the disciplinary orientations of the research team members occasionally clashed, on methodological issues, is also addressed. |
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Journal | Erasmus Law Review, Issue 3 2015 |
Authors | Andria Naudé Fourie |
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There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories. |
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Journal | Erasmus Law Review, Issue 3 2015 |
Authors | Harm Kloosterhuis |
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In this article, I want to show that some doctrinal problems of legal interpretation and argumentation can be analysed in a more precise way than a standard doctrinal analysis, when we use insights from speech act theory and argumentation theory. Taking a discussion about the accusation of the criminal act insulting as a starting point, I will try to show that the doctrinal perspective on meaning of statutory norms and of the qualification of utterances as legal acts lacks the instruments to explain why discussions about these meanings and utterances are so complicated. In short, a doctrinal analysis focuses on word or sentence meaning, distinguishing between the literal or semantic meaning on the one hand and the meaning in context on the other. However, the analysis of this ‘meaning in context’ is often rather vague, especially in cases of indirect and strategic communication. It is the analysis of this meaning in context that can profit from insights from speech act theory. I do not want to ‘solve’ the problems of the interpretation of the norms concerning insulting. I only use this case in point as an exemplary example to discuss important (often implicit doctrinal) starting points about the related concepts meaning and intention (or commitment) in interpretative discussions. |
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Journal | Erasmus Law Review, Issue 3 2015 |
Authors | Terry Hutchinson |
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The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. |
Editorial |
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Journal | Erasmus Law Review, Issue 3 2015 |
Authors | Sanne Taekema and Wibren van der Burg |
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Journal | Erasmus Law Review, Issue 4 2014 |
Keywords | legal advice, police interrogation, European Union, England and Wales, France |
Authors | Anna Ogorodova and Taru Spronken |
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In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice. |
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Journal | Erasmus Law Review, Issue 4 2014 |
Keywords | legal representation, counsel, juvenile justice, police interrogations, children’s rights |
Authors | Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink |
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The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator. |
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Journal | Erasmus Law Review, Issue 4 2014 |
Keywords | confession, interrogation, evidence |
Authors | Eric Rassin Ph.D. and Han Israëls |
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Intuitively, confession is a strong piece of evidence, because it appears unlikely that a suspect would confess to a crime he did not commit, thereby acting against his own best interest. Surprisingly, experimental studies show that innocent and well-educated individuals do tend to confess falsely when questioned about something they did not in fact do. In this contribution, an overview is presented of the experimental research on confession evidence. Limitations and implications of the scientific insights are discussed. |
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Journal | Erasmus Law Review, Issue 4 2014 |
Keywords | Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive |
Authors | Paul Mevis and Joost Verbaan |
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This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR. |
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Journal | Erasmus Law Review, Issue 4 2014 |
Authors | Willem-Jan Verhoeven Ph.D. |
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Journal | Erasmus Law Review, Issue 3 2014 |
Authors | Laura Maria van Bochove Ph.D. |
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The Rome I Regulation on the law applicable to contractual obligations contains several provisions aimed explicitly at the protection of ‘weaker’ contracting parties, such as consumers and employees. However, in addition to this, the interests of weaker parties are sometimes also safeguarded through the application of ‘overriding mandatory provisions’, which are superimposed on the law applicable to the contract to protect a fundamental interest of a Member State. This article is an attempt to clarify the extent to which the concept of overriding mandatory provisions may serve as a vehicle for weaker party protection. To do this, it examines the definition and limitations of the concept and its relation to conflict of laws rules based on the protective principle. Finally, the article seeks to establish whether the doctrine of overriding mandatory provisions remains relevant in the case of harmonisation of substantive law at the EU level, for which it will differentiate between full and minimum harmonisation. |
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Journal | Erasmus Law Review, Issue 3 2014 |
Keywords | private international law, conflict of laws, foreign judgments, European Union, United States |
Authors | Christopher Whytock M.S., Ph.D., J.D. |
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In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics. |
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Journal | Erasmus Law Review, Issue 3 2014 |
Keywords | CSR, conflicts of law, Kiobel, Shell |
Authors | Geert Van Calster Ph.D. |
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This contribution firstly reviews developments in the EU and in the United States on corporate social responsibility and conflict of laws. It concludes with reference to some related themes, in particular on the piercing of the corporate veil and with some remarks on compliance strategy, and compliance reality, for corporations. |
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Journal | Erasmus Law Review, Issue 3 2014 |
Keywords | global governance, family relations, nationality, habitual residence, party autonomy |
Authors | Professor Yuko Nishitani Ph.D. |
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As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms. |
Editorial |
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Journal | Erasmus Law Review, Issue 3 2014 |
Authors | Laura Carballo Piñeiro and Xandra Kramer |
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Journal | Erasmus Law Review, Issue 3 2014 |
Keywords | private international law, applicable law, overriding mandatory provisions, transnational employment relations, posting of workers |
Authors | Prof.dr. Aukje A.H. Ms van Hoek |
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The regulation of transnational employment in the European Union operates at the crossroads between private international law and internal market rules. The private international law rules are currently laid down in the Rome I Regulation. This regulation is complemented by the Posted Workers Directive, a directive based on the competences of the EU in the field of free movement of services. The current contribution first describes the rules which determine the law applicable to the employment contract under Article 8 Rome I Regulation and the way these rules are interpreted by the CJEU before critically analysing these rules and the reasoning that seems to lie behind the court’s interpretation (section 2). The law applying to the contract is, however, only of limited relevance for the protection of posted workers. This is due inter alia to the mandatory application of certain rules of the country to which the workers are posted, even if a different law governs their contract. This application of host state law is based on Article 9 Rome I Regulation in conjunction with the Posted Workers Directive. Section 3 describes the content of these rules and the – to some extent still undecided – interaction between the Rome I Regulation and the PWD. The conclusion will be that there is an uneasy match between the interests informing private international law and the interests of the internal market, which is not likely to be resolved in the near future. |
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Journal | Erasmus Law Review, Issue 2 2014 |
Authors | Willem H. van Boom |
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