Electronic copy available at: http://ssrn.com/abstract=1113450Electronic copy available at: http://ssrn.com/abstract=1113450

Centre for the Study of European Contract Law

Working Paper Series No. 2008/02

A European Legal Science? On European private law and scientific method

Martijn W. Hesselink

m.w.hesselink@uva.nl

Centre for the Study of European Contract Law Universiteit van Amsterdam

P.O. Box 1030 1000 BA Amsterdam

The Netherlands

Electronic copy available at: http://ssrn.com/abstract=1113450Electronic copy available at: http://ssrn.com/abstract=1113450

A European legal science? On European private law and scientific method*

Martijn W. Hesselink**

I. Introduction

Within the contexts of national research assessment exercises, of national and

European competitions for research funds and of the juries for doctoral theses in law,

the question is often raised whether legal scholarship and its methods are sufficiently

scientific. Obviously, these general questions also apply to academic research into

European law and its methods. With regard to this subject there are even further, more

specific questions. For example, whether European legal scholarship is more scientific

than national legal scholarship by the mere fact that it is international, or that the social

sciences, such as political science and economic analysis, play a greater role therein,

as is often suggested. A further specific question is whether we need a common

European legal method and if so, what it should look like.

These questions all concern the relationship between European law and scientific legal

method. It is this relationship that I will address in this article. What is it that European

legal scholars should do? However, before going into specific methodological

questions concerning European law we first need to clear the ground with regard to

some more general questions about legal method. As I will argue, I will have to make

my methodological and ideological assumptions more explicit before addressing the

specific questions relating to a European legal method. Throughout this article the

focus will be mainly on private law. Not because the same questions would not be

relevant for other parts of European law, but rather because traditionally private law

scholarship has had the most scientific vocation or, if you like, presumption. * This article is based on a paper presented at the seminar ‘Legal Europe – Coherence and/or

Fragmentation’, at the Centre of Excellence ‘Foundations of European Law and Polity’ of the University of

Helsinki, on 31 January and 1 February 2008, and at the workshop 'After the Common Frame of

Reference - What Future for European Private Law?', on 29 February and 1 March 2008, at the European

University Institute at Florence. ** Professor of European Private Law and Director of the Centre for the Study of European Contract Law,

Universiteit van Amsterdam.

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II. How to be a science

A. External scepticism

Traditionally, legal scholars try to answer questions of law. They answer these

questions according to a given legal system (typically their own system). In other

words, they adopt an internal perspective. Moreover, they usually presume that the

legal system contains one single right answer to each legal question. Therefore,

traditional legal scholarship may be characterised as both positivistic and dogmatic.1

The internal perspective is the perspective of the judge. The aim is to become an

oracle of the law.2 The ideal legal scientist is very similar to Dworkin's Hercules, 'an

imaginary judge of superhuman intellectual power and patience who accepts law as

integrity.'3 This explains why the method of legal research and the method of

adjudication (‘finding the law’) have traditionally been assimilated.4 As a consequence,

traditionally there has been little specific attention for methods of legal research.

Larenz’s Methodenlehre der Rechtswissenschaft, an international classic translated

into many languages, is entirely concerned with the application, interpretation and

further development of the law; it underlines that disciplines that study the law from the

outside, such as legal history and legal sociology, are different sciences,5 an idea that

goes back to Hans Kelsen’s theory of pure legal science.6 Another consequence of

adopting the internal perspective is that academic legal research has traditionally been

closely connected to legal practice.7 However, national traditions differ considerably in

this respect: whereas in Germany law professors have traditionally had a major impact

on the development of the law (the treatise), in France the initiative has been more with

the legislator (the civil code) while in England the judges have dominated the scene

(case law) without paying too much attention to the opinions of legal scholars.8 This 1 See Martijn W Hesselink, The New European Legal Culture (Kluwer, 2001), ch. 1, with further references. 2 Of course, in John P. Dawson, The oracles of the law (1968), the phrase refers to judges. 3 Ronald Dworkin, Law's Empire (Fontana, 1986), 239. 4 cf Jan B.M. Vranken, Exploring the Jurist’s Frame of Mind (Kluwer, 2006), 146. 5 Karl Larenz, Methodenlehre der Rechtswissenschaft, 5th ed (Springer Verlag, 1991), 5. 6 Hans Kelsen’s Reine Rechtslehre; Einleitung in die Rechtswissenschaftliche Problematik, 1st ed, [1934]

(Scientia Verlag, 1994) was not in the first place a pure theory of law but a theory of pure legal science; it

was concerned with the definition of law as an object of scientific study. Specifically on the difference

between legal science and legal sociology, see the debate between Kelsen and Ehrlich: Hans Kelsen &

Eugen Ehrlich, Rechtssoziologie und Rechtswissenschaft. Eine Kontroverse (Nomos, 2003). 7 See eg Peter Stein, Roman Law in European History (Cambrigde University Press, 1999). 8 R.C. Van Caeneghem, Judges, Legislators & Professors; Chapters on European Legal History

2

has had important implications for the self-image and practice of legal scholars. As we

will see, today this also influences the way in which scholars from different European

countries see the role (even the task) of legal scholars with regard to the

Europeanisation of private law.

Legal scholars in many continental European countries find it quite natural to speak of

their work as legal science (‘Rechtswissenschaft’, ‘scienze giuridiche’,

‘rechtswetenschap’).9 This is in sharp contrast to the English-speaking world, not only

in the United States (where it is reminiscent of Langdell)10 but also in England where

the notion of a ‘legal science' is often ridiculed, not only by physicists and biologists but

also by legal scholars themselves. The idea is that science equals natural science (or

at least empirical science). On the face of it, that idea is itself not very natural since

science (scientia) means nothing more than knowledge (Wissenschaft). So, unless

legal scholars cannot be said to be producing knowledge, their use of the term science

seems legitimate. This brings us to the core question: can the results of legal

scholarship count as 'knowledge' or is it mere opinion? Doubts have been expressed

from different angles.

Natural scientists look at legal scholarship with some bewilderment. They are often

sceptical for a number of reasons including the following: legal scholarship does not

produce theories that can be tested empirically, it is normative, it is not usually

international, and there seems to be no distinction between pure and applied science.

In sum, it is difficult to see in what sense legal scholarship produces objective

knowledge rather than mere subjective opinions.11 Claims about questions of law (like

any normative claims) look like opinions, not like objective statements of fact. Scholars

in disciplines that emulate the natural sciences, in particular the social sciences, often

have a similar attitude towards legal scholarship: if it is true that ‘science is

measurement,’ then surely legal scholarship cannot be a science? In actual fact, the (Cambridge University Press, 1987), especially chapter 2. 9 Among many examples, in Germany the ‘Max-Planck-Gesellschaft zur Förderung der Wissenschaften’

has seven institutes in the research field of ‘legal sciences’ and in Finland the Centre of Excellence ‘The

Foundations of European Law and Polity’ has a research plan which emphasises its ‘scientific significance

and innovativeness’. 10 cf Neil Duxbury, Patterns of American Jurisprudence (Clarendon Press, 1995), ch 1. 11 cf eg C.J.J.M. Stolker, ‘Ja, geléérd zijn jullie wel!; Over de status van de rechtswetenschap’, Nederlands

Juristen Blad 2003, 766.

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situation is worse than natural and social scientists may imagine: classical legal

scholarship is not even necessarily based on research. The most authoritative opinion

with regard to a question of law may be expressed by the professor who has carried

out the least research. This may be because legal scholarship (die Lehre, la doctrine)

is based to a large extent on (essentially scholastic) authority arguments. It may also

be that the best idea occurs to someone who just looks at the question afresh, without

carrying out any research.12 Still worse, legal scholars often regard themselves as a

source of law.13 This means that legal scholarship becomes both the subject and the

object of study: they analyse their own writings in order to find answers to legal

questions - a somewhat Münchhausen-like situation.

Not surprisingly, scholars who apply the methods of the recognised sciences to the

law, in disciplines such as the economic analysis of law, legal sociology, law &

psychology and many other 'law and' disciplines claim that their way of studying the law

is more scientific than the traditional legal method. According to Richard Posner,

‘[w]hat is missing from law are penetrating and rigorous theories, counterintuitive

hypotheses that are falsifiable but not falsified - precise instrumentation, an exact

vocabulary, a clear separation of positive and normative enquiry, quantification of

data, credible controlled experiments, rigorous statistical inference, useful

technological by-products, dramatic interventions with measurable consequences,

and above all and subsuming most of the previous points, objectively testable - and

continually retested - hypotheses. In law there is the blueprint or shadow of

scientific reasoning, but no edifice.’14

All this is much better in the economic analysis of law: ‘To me the most interesting

aspect of the law and economics movement has been its aspiration to place the study

of law on a scientific basis, with coherent theory, precise hypotheses deduced from 12 Here there is not necessarily a contrast with the recognised sciences, especially in their theoretical

branches (eg theoretical physics). There is even the received idea (or cliché) that physicists do their most

important discoveries when they are young (think of the icon Albert Einstein), ie when they are not yet

burdened by too much knowledge. 13 In their book La doctrine (Dalloz, 2004), Jamin and Jestaz demonstrate how, after having been

abolished by Napoléon and threatened by social scientists with their scientific methods, legal scholars in

France reinvented themselves in the second half on the 19th Century as a third source of law, in addition to

the Code and case law ('la jurisprudence'), which was also invented by them as a second source of law. 14 Richard A. Posner, The problems of Jurisprudence (Harvard University Press, 1993) 69.

4

theory, and empirical tests of the hypotheses.’15 In the same vein Cooter and Ulen

conclude that ‘[g]eneralizing, we can say that economics provides a behavioural theory

to predict how people respond to changes in laws. This theory surpasses intuition, just

as science surpasses common sense.’16 Similarly, the legal comparatists Zweigert and

Kötz observe: ‘It may indeed be that the mere interpretation of positive rules of law in

the way traditionally practised by lawyers does not deserve to be called a science at all,

whether intellectual or social. Perhaps legal studies only become truly scientific when

they rise above the actual rules of any national system, as happens in legal philosophy,

legal history, the sociology of law, and comparative law.’17

Similar points have long been made by legal scholars as well. In the first decades of

the 20th Century, legal realists, both in Europe and the United States, attacked the idea

that it makes sense to adopt an internal perspective with regard to the law, ie to regard

it as a binding system of rights and obligations, and to try to deduce answers to

questions law from it.18 Instead, they thought that legal scholarship could be made

more scientific by focusing on what could be determined empirically. Clearly, they were

quite impressed by the success of the natural sciences and their empirical method. In

the 1980s, the critical legal studies movement politicised the critique and made it more

radical. They argued that the law is so much a result of a political struggle between the

15 Richard A. Posner, ‘Foreword’, in: Michael Faure and Roger Van den Bergh (eds.), Essays in Law and

Economics (Maklu, 1989), at 5. 16 Robert Cooter & Thomas Ulen, Law & Economics (Addison-Wesley, 3rd edn, 2000), 3. 17 Konrad Zweigert en Hein Kötz, Introduction to Comparative Law (Oxford University Press, 3rd edn,

1998), 4. 18 Oliver Wendell Holmes famously said: ‘The prophecies of what the courts will do in fact, and nothing

more pretentious, are what I mean by the law.’ (Oliver Wendell Holmes, ‘The Path of the Law’, 10 Harvard

Law Review (1897), 457). Karl Llewellyn stated, no less famously: ‘What officials do about disputes is, to

my mind, the law itself.’ (Karl N. Llewellyn, The Bramble Bush; On Our Law and its Study (New York,

1951)). Jerome Frank is still known today for the sound-bite that the law depends on what the judge had

for breakfast. Specifically with regard to the work of scholars, Hermann Kantorowicz pointed to the fact that

a given legal system, as it is presented in the various existing textbooks, may look as different as the

personalities of their authors (Gnaeus Flavius (Hermann Kantorowicz), ‘Der Kampf um die

Rechtswissenschaft’, Heidelberg, 1906 (reprinted in: Thomas Würtenberger (ed.), Rechtswissenschaft und

Soziologie; Ausgewählte Schriften zur Wissenschaftslehre von Hermann Kantorowicz (Karlsruhe 1962), at

13, 27-28).

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left and the right that it is intrinsically indeterminate; therefore, it is impossible to derive

any coherent answers from it.19

B. The quest for a scientific method

This scepticism concerning the scientific pretensions of legal scholars raises the

question: what makes a science? The last heroic attempt to clarify the concept of

scientific method was made by Karl Popper. In The Logic of Scientific Discovery he

undertakes a logical analysis of the method of the empirical sciences.20 According to

Popper it is possible (and indeed useful) to draw a logical distinction between science

and non-science. What distinguishes science from non-science, he argued, is the

falsifiability of a theory. A scientific theory can be tested. Data or experiments that

confirm a theory do not prove its correctness. However, failed attempts to falsify a

theory make it stand stronger (for the time being). Statements or claims that cannot be

tested in this way are non-scientific. The more general a theory is, the more it prohibits.

And the more a theory prohibits the more it is exposed to falsification.21 Strictly

speaking, Popper’s project is not concerned with designing a prescriptive method for

engaging in proper science nor is it otherwise normative. It is rather an analysis in

purely formal logical terms of the concept of scientific knowledge (hence the logic of

scientific discovery). He says: ‘I still take it to be the first task of the logic of knowledge

to put forward a concept of empirical science, in order to make linguistic usage, now

somewhat uncertain, as definite as possible, and in order to draw a clear line of

demarcation between science and metaphysical ideas - even though these ideas may

have furthered the advance of science throughout history.’22 In other words, Popper

does not tell us how to do science, nor does he give a value judgment on what he calls

'metaphysical claims'. Indeed, he acknowledges that he shares many such beliefs

himself and says that it is impossible to function without them. However, these are

outside the realm of science. Having said that, what he has to say about, for example,

psychoanalysis is far from flattering.23

19 See eg Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’, 89 Harvard Law Review

(1976), 1685. 20 Karl Popper, The Logic of Scientific Discovery (Routledge Classics, 2002). 21 Popper, Scientific Discovery, 48. 22 Popper, Scientific Discovery, 16. 23 For a very different Viennese thinker who was also irritated by the fashion of psychoanalysis at the time,

see Elias Canetti, Das Augenspiel; Lebensgeschichte 1931-1937 (Fischer, 13th edn, 2001).

6

Clearly, legal scholarship as it has been traditionally understood would not be part of

Popper’s category of science, simply because it does not produce hypotheses that can

be tested empirically. In this respect it is similar to eg history, philosophy and

mathematics. Moreover, whereas natural laws are universal statements, the laws that

legal scholars study are applicable only in a specific territory.24 Finally, scientific

method presupposes the immutability of natural processes,25 whereas legal method

presupposes that its object changes and, indeed, may even be changed by the work of

academics. Finally, the method of falsification is certainly not the ordinary practice of

legal scholars who usually defend, rather than attack, their own theories, as the right

answers (in a normative sense) to a certain legal question. Therefore, if Popper’s

method of falsification were to be adopted as the demarcation line between science

and non-science, classical legal scholarship definitely would be out. A daunting

prospect.26 However, on closer examination a logical distinction between science and

non-science along the lines proposed by Popper tells us nothing more than that only

the empirical sciences produce knowledge through empirical testing. The great merit of

Popper’s theory was that it proposed a new test for empirical knowledge (falsification,

instead of verification) but the claim that this test demarcates science from non-science

would be tautological:27 of course, non-empirical knowledge does not belong to science

if science is defined as empirical science.28

24 Cf Popper, Scientific Discovery, 251: ‘’it is part of our definition of natural laws if we postulate that they

are to be invariant with respect to space and time; and also if we postulate that they are to have no

exceptions.” Of course, my assimilation of natural laws and laws studied by legal scholars is incongruous

since natural laws are not the object but the product of science. 25 Popper, Scientific Discovery, 250. 26 And not only for legal scholarship. Definitions like Popper's, which consider only the empirical sciences

to be scientific, exclude large parts of what is done at the university. Sciences (universitas scientiae, one

could say) according to such a narrow definition would exclude most faculties which have long been

recognised as part of the university (universitas studiorum), indeed much longer than the empirical

sciences. 27 Such a claim is tautological in the same way as Darwin’s evolutionary theory by which it was inspired.

The struggle for life and the survival of the fittest: Who survive? Only the fittest! Who are the fittest? Only

those who survive. 28 Popper does not explicitly make this claim. He merely defines science as empirical science and calls the

remainder metaphysical. However, who would like his discipline to be called metaphysical rather than

scientific? (Parallel with Darwin: who would like to be called ‘unfit’?)

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C. What scientists do

Paul Feyerabend, a former pupil of Popper’s, became one of his most virulent critics.

He pointed to the fact that, in practice, scientific progress has usually been made in

spite of existing methodological conventions. When one examines the events,

procedures and results that actually constitute the natural sciences, he said, one

comes to the conclusion that they have no common structure.29 He warned that

Popper’s methodological rigour would stifle scientific progress. Therefore, Feyerabend

spoke out firmly against the idea of scientific method. In his book Against Method he

famously said: 'To those who look at the rich material provided by history, and who are

not intent on impoverishing it in order to please their lower instincts, their craving for

intellectual security in the form of clarity, precision, 'objectivity', 'truth', it will become

clear that there is only one principle that can be defended under all circumstance and

in all stages of human development. It is the principle: anything goes.'30

In the last few decades more generally philosophers, especially post-modernists and

neopragmatists, have cast significant doubt on the possibility of drawing meaningful

epistemic (as opposed to sociological) distinctions between fact and opinion, true and

false, science and non-science, and to find a method for arriving at the truth of matters.

Richard Rorty, for example, proposes an ‘anti-representationalist’ account of the

relation between natural science and the rest of culture, one that ‘does not view

knowledge as a matter of getting reality right, but rather as a matter of acquiring habits

of action for coping with reality.’31 In other words, ‘an account of inquiry which

recognizes sociological, but not epistemological, differences between such disciplinary

matrices as theoretical physics and literary criticism.’32 Indeed, at the beginning of the

21st Century, apart from a bunch of die-hard analytical philosophers in the Anglo-Saxon

world, there do not seem to be many thinkers left who believe in the possibility of

29 Paul Feyerabend, Against Method (Verso ,1993), 1. 30 Feyerabend, Against Method, 18-19. 31 Richard Rorty, Objectivity, relativism, and truth; Philosophical papers, Vol. I (Cambridge University

Press, 1991), 1. Rorty’s rejection of the philosophy of science is based on his broader claim that

epistemology is pointless. See Philosophy and the Mirror of Nature (Basil Blackwell, 1980) where he

argues that we should stop asking ourselves how we can determine whether our representation of nature

is correct (we should stop mirroring). Since the only thing we will ever have is the ‘representation’, let us

focus on whether it works for the various purposes we have in mind. 32 Ibidem.

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finding a ‘scientific method’ for arriving at ‘scientific knowledge’ and for distinguishing

‘science’ from ‘non-science’.

As a consequence, science studies have gradually abandoned attempts to distinguish

logically between science and non-science, or to develop normative theories of the

right method for scientific research. Instead, they are increasingly interested in what

scientists actually do in practice. The idea is that neither science nor scientific method

are natural categories of absolute truth but contingent, man-made concepts with a

history. In his historical study The Scientific Revolution Steven Shapin shows how the

ideas of science and scientific method were born in the seventeenth century.33 Until

then, the generally acknowledged method for philosophical inquiry (into nature,

morality, the law) in academia (the ‘schools’) had been the scholastic method as

developed in the Aristotelian tradition. A statement was true when it could be traced

back to an authoritative source, the most authoritative of all being Aristotle. The novelty

that was gradually introduced was that natural philosophers started to believe that they

could find truth through experiments and that they could capture nature in abstract

mathematical laws. Shapin wonderfully demonstrates that the acceptance that

experiments could produce general truth occurred only very gradually. At first, there

was a great deal of scepticism and reports on experiments emphasised how many

people witnessed the experiment and that they were all honourable gentlemen. Thus,

natural philosophers gradually diverted their interest from studying authoritative books

to studying the book of nature.34 As a result there was an increasing schism between

natural sciences and other subjects which were increasingly regarded as unscientific.

The ideal of science came to be objective, dispassionate and independent from the

political and the personal. Indeed, ever since the scientific revolution non-empirical

academic disciplines, notably philosophy, seem utterly ‘unscientific’. This is, of course,

also true for legal scholarship with its essentially scholastic method.35 Shapin says:

33 Steven Shapin, The Scientific Revolution (The University of Chicago Press, 1996). 34 Obviously there are clear parallels here with the way in which natural law became increasingly

discredited. On this latter development, see James Gordley, The Philosophical Origins of Modern Contract

Law (Clarendon Press, 1991). 35 See eg Gerrit De Geest, 'Hoe maken we van de rechtswetenschap een volwaardige wetenschap?',

Nederlands Juristen Blad 2004, 58, who rejects legal scholarship as 'pre-scientific' because - in contrast to

the economic analysis of law - it still uses essentially scholastic methods.

9

‘[I]t is worth noting that the modern boundaries that have sought to place the

explicitly subjective and moral on the other side of the properly scientific have had

interesting consequences for our culture. One effect has been to deny that there

can be such a thing as a science of values. Talk of moral good and bad is

understood to be arbitrary, interested, and irresolvable by reason, whereas talk of

what exists in the natural world can be rational, disinterested, and consensual. ... It

might be said that the success of natural science, and especially its capacity to

generate consensus, has been secured at the cost of separating itself from a

practice now to be called “philosophy” ... Good order and certainty in science have

been produced at the price of disorder and uncertainty elsewhere in our culture.’ 36

Shapin concludes that ‘there is much to commend a revisionist view that formal

methodology is to be understood as a set of rhetorical tools for positioning practices in

the culture and for specifying how those practices were to be valued.’37

In his book Science in Action the anthropologist Bruno Latour describes how

knowledge is produced today in the natural sciences.38 His counter-intuitive claim is

that controversies in science are fiercer than in daily life:

‘When we approach the places where facts and machines are made we get into the

midst of controversies. The closer we are, the more controversial they become.

When we go from daily life to scientific activity, from the man in the street to the

man in the laboratory, from politics to expert opinion, we do not go from noise to

quiet, from passion to reason, from heat to cold. We go from controversies to

fiercer controversies.’39

Latour’s reconstruction of the making of Nobel prize-winning articles in scientific

journals is enlightening because it undermines the idea that today natural scientists do

no longer rely on (scholastic) authority arguments. Indeed, he describes the use of

references to other publications in scientific articles as ‘bringing friends in’. ‘Science is

seen as the opposite of the argument from authority. A few win over the many because

the truth is on their side’, he says, but, ‘[t]he adjective “scientific” is not attributed to

36 Shapin, Scientific Revolution, 162 (emphasis in original). 37 Shapin, Scientific Revolution, 95. 38 Bruno Latour, Science in Action (Harvard University Press, 1987). 39 Latour, Scientific Revolution, 30.

10

isolated texts that are able to oppose the opinion of the multitude by virtue of some

mysterious faculty.’40 The fate of scientific findings, he explains, depends entirely on

how they are received by others. What they do with these findings will determine

whether it will become a fact:

‘You may have written a paper that settles a fierce controversy once and for all, but

if readers ignore it, it cannot be turned into a fact; it simply cannot. You may protest

against the injustice; you may treasure the certitude of being right in your inner

heart; but it will never go further than your inner heart; you will never go further in

certitude without the help of others. Fact construction is so much a collective

process that an isolated person builds only dreams, claims and feelings, not

facts.’41

These and other accounts of what scientists actually do obviously raise the question

whether ‘natural science is action’ is actually as radically (or even categorically)

different from the practice of legal science as is so often assumed. The differences

between the practices and conventions in the various scientific communities

concerning what is accepted as scientific knowledge seem to be gradual (and

rhetorical) rather than categorical.

III. Is legal scholarship scientific?

A. The politics of scientific method

The sustained effort by natural scientists to keep their own practice on a pedestal

seems to be justified neither by logic nor by empirical data. First, a logical distinction

between science and non-science along the lines proposed by Popper tells us nothing

more than that only the empirical sciences produce knowledge through empirical

testing. Therefore, Popper’s logic of scientific discovery is meaningless for most

practical purposes where the distinction between science and non-science actually

plays a role. In particular, as Popper acknowledges, it tells us nothing about the relative

(social, cultural, economic) value or use of such knowledge compared to that of

knowledge that cannot be tested empirically, such as philosophical, linguistic, and

indeed legal knowledge. Secondly, historical and social studies into the practice of the

40 Latour, Scientific Revolution, 31-33. 41 Latour, Scientific Revolution, 40-41

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natural sciences (and their epigones) shows that the practice of knowledge production

in the hard sciences is not as different from that in the areas where softer knowledge is

produced. The difference is at most gradual, not categorical.

What really differs, of course, are the research questions. If one wants to know what

the right answer is to a question of law then empirical research of whatever kind will

simply not be helpful. The real question is therefore whether we want to regard certain

objects of research and certain research questions as more scientific than others. That

position seems hardly tenable. It seems difficult to find a convincing reason why a

certain research question should be per se less scientific. The argument that they

cannot be answered with the help of empirical research is clearly tautological. As

Shapin explains, since the scientific revolution we have put the difficult questions to

one side. Even if normative observations are mere opinions then they can still be more

or less articulate. Is it so strange to call someone who specialises in the answers that

can be given to a normative question a scientist? And similarly, is it so strange to

regard as a scientist a person who tries to answer such questions taking into account

that the answer is somehow bound by what she regards as sources of law? Law is

messy but does that make research into it per se unscientific? Another and probably

more mature and less self-righteous way of looking at this question would be to

observe that accounts such as those by Feyerabend, Rorty, Shapin and Latour (and

the ones by Kuhn, Foucault and Derrida) strongly contribute to the demystification of

the concept of science. The epithet ‘scientific’ becomes less glorious if science is not all

that different from many other more of less respected practices in our culture, including

politics. On the other hand, such an attitude may seem somewhat naive given the fact

that the stakes in the science/non-science divide are still very high. However, it may be

time to address these stakes directly. To be sure, it is perfectly acceptable for a society

to decide that certain research questions are more interesting or more urgent or more

relevant to the economy, to our culture (less likely today), or to certain policies (eg

military, environment, health). Indeed, it would be absurd and socially wholly

unacceptable if the resources currently allocated to neuroscience were to be

transferred to law. There are good reasons for many of the choices that have been

made. However, these preferences should be addressed and expressed directly, not

via the rhetoric of degrees of scientificity. More and less important sciences therefore,

not more or less scientific sciences.

12

B. Are ‘law & ...’ disciplines more scientific?

This also settles the question whether the economic analysis of law and other ‘law & ...’

disciplines are more scientific than traditional legal scholarship, as they so often claim.

The main difference between these disciplines, on the one hand, and traditional legal

scholarship, on the other, is that they ask different research questions, the former being

positive and the latter normative. The typical questions that traditional legal scholarship

asks cannot be answered with the methods that these positive sciences use. So, only if

certain research questions are to be regarded as more scientific than others, are the

‘law & …’ disciplines per se more scientific. However, as said such a distinction is

meaningless for most purposes. In what context should the question how much

importance society places on a certain research question turn on such a tautological

definition of science as empirical science rather than to evaluate the social, cultural,

economic importance of the research question directly? Moreover, what these

disciplines want to explain in economic, sociological, political and other terms is of

course ‘the law’ as it is. However, in doing so they necessarily assume the existence of

the law as a binding system of rights and obligations, from which answers to legal

questions can be derived exactly in the way it is studied by traditional legal scholarship.

They necessarily rely on the findings of traditional legal scholarship (or of findings of

their own, but of exactly the same type), which they use as the starting points for their

comparative, economic, sociological, historical et cetera analysis. In other words, their

science would simply be impossible without the ‘data’ provided by traditional legal

scholarship. And to the extent that traditional legal scholarship is unscientific, their own

scholarship, which is based on it, necessarily has the same flaw.

As said, some of these disciplines increasingly engage in normative debates as well. In

particular, they sometimes claim that they can play a role in answering legal questions.

However, in this context (whatever their scientific merit) they are generally less useful,

because they are based on controversial (or simply implausible) assumptions and

because of their limited perspective. In other words, as soon as they become normative

they become messy as well. A good example is normative law & economics.

Economists usually present their theories in a formalised way in often highly

sophisticated models. These models are by definition abstract (much of reality is left

out) and contain several variables. In theory, these models could be tested empirically

13

against reality but in practice this hardly ever happens.42 Therefore, economists

sometimes simply assume that their models correspond to reality. Of course, these

assumptions are not neutral; they are usually ideologically inspired, often (but not

always) biased towards free-market ideology. Nevertheless, it is to these abstract

models, and with them to these assumptions, that scholars attempt to give normative

force, when they tell policy makers that they must adapt reality to the economic

models, in normative law & economics. Moreover, in order to move from the positive to

the normative they have to add the general normative assumption that more social

welfare (or ‘efficiency’) is per se good.43 As a consequence, for those who reject these

assumptions law & economics scholarship is of little value when answering normative

questions, including legal questions.44 Thus, traditional legal scholarship and scholars

42 See David Heigham, ‘Letter: Why Are Economists So Unscientific?’, in: The Economists' Voice, Vol. 4

(2007): Iss. 2, Article 5. Available at: http://www.bepress.com/ev/vol4/iss2/art5. The assumption that has

been most tested recently is the one that individuals are (merely) rational maximisers of their own welfare;

this behavioural research has led to the somewhat more modest (but no less ideologically biased) concept

of ‘bounded’ rationality. 43 See R. Dworkin, ‘Is Wealth A Value?’, (1980) 9 Journal of Legal Studies 191, 194. L. Kaplow and S.

Shavell, Fairness versus Welfare (Harvard University Press, 2002) even claim that social welfare is the

only thing that matters. 44 A striking example is the amicus curiae brief that was recently presented in a United States Supreme

Court case by 20 professors (including one Nobel Prize winner) who identify themselves as 'leading

professors and scholars who teach and write on economic issues' (Supreme Court Amicus Brief Regarding

Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, Washington

(available at http://ssrn.com/abstract=1034200). The reason for their intervention is that they 'are

concerned about the economic effects that the decision will have on contract certainty in commodities

markets. (...) Amici have a particular interest in the role and importance of contract certainty in promoting

the proper functioning of markets such as the electricity market.' The case concerns long-term contracts

for the supply of electricity that were concluded during the 2001-2002 energy crisis in California and that

were contested by the buyers when the prices had fallen sharply after the end of that crisis. The contracts

had been upheld by the Federal Energy Regulatory Commission but the Ninth Circuit overturned FERC’s

decision, holding that a contract price may be set aside if it falls beyond a ‘zone of reasonableness’ In their

brief the amici argue that this decision should be reversed by the Supreme Court. The reason is that

'certainty of contract is essential to a healthy economy'. Whatever its merit, this expert opinion necessarily

relies on a number of assumptions including the following: the positive assumption (against which there is

much empirical evidence) that contracting parties generally derive certainty from the formal notion that

contracts will be upheld whatever the circumstances rather than from the more substantive notion that

contracting parties rely on the fact that the law will uphold contracts except in cases where the outcome

would lead to extreme hardship or would otherwise be extremely unfair, and the (essentially utilitarian)

normative assumptions that it is an important aim of contract law to preserve a healthy economy (by

14

of law & economics (especially their most fundamentalist representatives) can be said,

in Kuhnian terms, to be working within different paradigms.45 They reject each other’s

assumptions and specific research questions and elaborate their own common system

of knowledge in a sometimes rather mannerist way.

To the extent that the normative argument from one of these perspectives is proposed

with regard to a question of law according to a given legal system, it also collides with

the accepted ideas concerning the sources of law. These received views are

articulated in some countries (notably Germany) in a legal method. The question then

becomes how open the legal system is to the argument and what gateway (typically

general clauses such as good faith) can provide access to the legal system. At first

sight it may seem that this controversy has nothing to do with whether these economic,

historic, comparative or other arguments are more or less scientific; the question here

rather is whether they are legal. However, the point is that rather than making legal

analysis from the internal perspective more scientific, such an argument, to the extent

that it is not recognised as a legal argument, turns the exercise into something different

from answering legal questions: the argument may still be normative, but it remains

outside the realm of legal analysis.46 Legal economists do not always recognise this.

On the other hand, however, legal scholars do not always sufficiently recognise that in

Europe the borderline between the external and the internal perspective is gradually

blurring as a result of an increasingly less formal and more substantive legal culture.47

providing incentives for efficient market transactions) and that this general macro-economic aim is

generally (or at least in the present case) more important than a just and fair outcome of the dispute

between the parties in the case at hand. The point here is not whether the expert argument (which, frankly,

is presented in a rather scholastic fashion) is convincing but that it is presented, not only as a normative

argument (the law is wrong) but as a legal argument (the Ninth Circuit has got the law wrong), and that the

proposed better solution relies entirely on a number of positive and normative assumptions, just as much

as any other normative argument based on a different conception of social justice. 45 Thomas Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 3rd edn, 1996). 46 It may constitute a claim that the law, as it stands, is wrong, ie a claim from the external perspective.

And as such it may be very convincing. 47 The distinction was introduced into jurisprudence by H.L.A. Hart, The Concept of Law (Clarendon Press,

2nd edn, 1961), 88. In the social sciences the internal/external distinction aligns with the

interpretivism/positivism divide. Cf Brian Z. Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a

Social Theory of Law (Clarendon Press, 1997), chapter 3. (Note that ‘legal positivism’ resembles the

internal (not the external) view and interpretivism (not positivism) in the social sciences.)

15

The instrumentalist and impressionistic approach of EC directives, the pragmatic style

of the ECJ, the subversive role of comparative law with its functional method, the

external economic, cultural and political perspectives given by academics, the success

of soft law which is based on substantive authority rather than on formal enactment,

and the gradually less locally-oriented legal education as a result of the implementation

of the Bologna Declaration together contribute to a new European legal culture that is

less formal, dogmatic and positivistic than national legal cultures in Europe have

been.48 In such a less formal approach, substantive arguments have a much easier

access to legal argument than through the cumbersome road of general clauses or

gaps in the system.49 To the extent that the borderline between the internal and the

external perspective is blurring (because legal method is becoming less formal and

admits more substantive arguments) legal analysis can also be said to be moving

gradually from the humanities, that focus on interpretation and meaning, towards the

social sciences, that are mainly interested in the consequences of human agency.

Nevertheless, as long as the law continues to be considered as binding at least to

48 See M.W. Hesselink, The New European Legal Culture (Kluwer, 2001) 49 In Germany, Canaris, Die richtlinienkonforme Auslegung, 9 introduced the concept of

'Rechtsgewinningsquellen' (which must be distinguished from 'Rechtsgeltungsquellen' and

'Rechtserkenntnisquellen'): in contrast to statutes ('Rechtsgeltungsquellen'), case law and legal scholarly

writing ('Rechtserkenntnisquellen') the 'Rechtsgewinningsquellen' do not provide answers to legal

questions on account of being a formally recognised source, but their influence depends merely on

whether they are convincing in substance. However, note that my argument goes further: I argue that

these different sources cannot (or can no longer) be distinguished. My argument also goes further than

Hart’s argument, that ‘detached normative statements’ (made by someone who does not accept an

existing norm) constitute a third kind of statement in addition to the internal and external statement (H.L.A.

Hart, Essays in Jurisprudence and Philosophy (Oxford University Press, 1983), 14-15), and Tamanaha’s

idea that we should distinguish two internal/external axes, with regard to the observed

(interpretative/positivist) and the observers (participant/non-participant) (See Brian Z. Tamanaha, ‘A Socio-

Legal Methodology for the Internal/External Distinction: Jurisprudential Implications’, 75 Fordham Law

Review (2006), 1255). I am arguing (here and below, V, B) that in Europe it is becoming increasingly

difficult (even for Dworkin’s Hercules!) to figure out, and accordingly it is less meaningful, whether a

statement is detached or not, interpretative or positivist and participant or non-participant because it is

unclear where the relevant system, community and practice begins. Are only judges participants? Not so,

according to German legal scholars. Is only Community law part of the system of European law? Not so,

according to those who regard the whole of the law that applies in Europe as one multi-level system. Is

French law or an observation by an American legal economist external to Dutch law? Not for those who

believe in the Europe-friendly interpretation of national law and those who believe that the law should be

interpreted in such a way that the outcome leads to the greatest possible social welfare.

16

some extent,50 it will always remain concerned also with the meaning and interpretation

of sources, very similar to the humanities, and therefore will continue to be an relatively

autonomous discipline.51

An additional question that the internal versions of these economic, comparative,

historical and other perspectives raise, once they are admitted, is which perspective

should prevail. In view of what we saw before, there seems to be no 'scientific' (with a

capital S) way to balance the merit of these different perspectives and their respective

assumptions. Since the argument is normative and the assumptions (eg that efficiency,

or following Roman law, or doing what the majority of other legal systems do, is good)

are normative as well, these questions require value judgements. Having said that,

typically an approach where different perspectives are taken into account will lead to a

more informed and more balanced judgment. That may explain, in part, why multi-

disciplinary research into normative questions has become so fashionable. However,

since nobody will be able to consider all possible insights and to balance them in a

rational and 'objective' way (quite apart from the question whether they are

commensurable!) we will therefore necessarily have to rely on our own set of values

and prejudices. Therefore, ‘eclectic’ may be a more straightforward denomination for

such a contemporary method.52

Finally, a characteristic that these external perspectives and their methods share is

their claim to universality: with their methods it is possible, in principle, to analyse any

legal system in any place at any time. This they have in common with the natural

sciences and other recognised sciences, such as the social sciences. Indeed, several

of them are actually applications of these recognised scientific methods to the object of

the law. This is in sharp contrast to legal method that is local by definition. Universal as

these methods may be, their claims become dubious when they take their assumptions

also to be universal, and then make normative claims. Again, the economic analysis of

law is a case in point. The theory of the efficiency of the common law is a good

50 See below, Section IV, A. 51 Cf Brian H. Bix, ‘Law as an Autonomous Discipline’, in Peter Cane and Mark Tushnet (eds), The Oxford

Handbook of Legal Studies (Oxford University Press, 2003), at 975. 52 In favour of methodological eclecticism is Duncan Kennedy, A Critique of Adjudication {fin de siècle}

(Harvard University Press, 1997), 15. See also M.W. Hesselink, Contractenrecht in Perspectief (Boom

Juridische Uitgevers, 2004), Chapter 7.

17

example: this theory, which goes back to Oliver Wendell Holmes and which has been

advocated by Richard Posner and others, postulates that by its supposedly universal

standards one entire legal system (as it happens, their own) is economically efficient’,

indeed more so than other legal systems (notably the civil law).53 If this theory shows

anything, it is that the economic analysis of law made in the USA - with its peculiar

concept of economic efficiency - fits no society and legal system better than the

American one.54 In comparative law the idea of ‘legal transplants’ may be more

harmless, but its basic assumptions are equally simplistic.55 The same applies to the

neopandectist idea that Roman law could have anything to contribute to the future of

European private law.56

53 For the theory of the efficiency of the common law see Richard Posner, Economic Analysis of Law,

(Aspen, 5th edn, 1998), § 8.1. Contrast Eric A. Posner, ‘Economic Analysis of Contract Law After Three

Decades: Success or Failure?’, 112 Yale Law Journal, 829, who argues, with regard to contract law, that

welfare economics might be able to provide persuasive reasons for the superiority of a free market to a

planned economy, and that a free market requires the making of binding promises, ‘But there are many

ways that promises can be made binding ... And there are many different rules of contract law that will be

equally good at enabling people to make binding promises. Specific performance is about the same as

damages; literalistic interpretation is about the same as purposive interpretation.’ See also the even more

extreme ‘legal origins’ theory by the economists La Porta, Lopez-de-Silanes, Shleifer, and Vishny (LLSV)

who claims the superiority of the common law compared to the civil law, especially in its French version.

Stefan Voigt, ‘Are International Merchants Stupid? - Their Choice of Law Sheds Doubt on the Legal Origin

Theory’, 5 Journal of Empirical Legal Studies (2008), 1, neatly points out that, in view of this theory, in

international transactions one would expect a massive choice of law for English or American law, an

expectation which, however, not confirmed empirically (so say the least) by the available statistic evidence. 54 A more dangerous version of the same idea is the so-called ‘Washington consensus’ that advocates

privatization, deregulation, lower public spending et cetera. One does not have to be a radical antiglobalist

to realise that people, societies and their economies differ and that one size does not in fact fit all. It is

therefore definitely unscientific (and immoral, for that matter) to try to impose the Washington consensus,

in the name of economic science, without distinction on any country in the world whatever its social,

political and economic condition. See J.E. Stiglitz, Globalization and its Discontent (Penguin Press, 2002),

78. See on the ‘technical’ economic advice by Nobel Prize winner Milton Friedman and his Chicago boys

to Pinochet, Deng Xiaoping and other brutal regimes: Naomi Klein, Shock Therapy; The Rise of Disaster

Capitalism (New York: Metropolitan Books 2007). 55 See Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New

Divergences’, The Modern Law Review 1998, 11. 56 Pio Caroni, ‘Der Schiffbruch der Geschichtlichkeit; Anmerkungen zum Neo-Pandektismus’, Zeitschrift für

Neuere Rechtsgeschichte (1994), 85 says of the neopandectists: ‘Stark übertreibend, und auch nur im

Sinne einer ebenso gutmütigen wie zusammenfassende Provokation könnte man sagen: Die meisten von

ihnen ... befassen sich mit einer fiktiven Vergangenheit zur Beeinflussung einer ungewissen Zukunft.’

18

In sum, the economic, political, comparative, historical and psychological and other

analysis of law can contribute to solving a legal question in a satisfactory way. This will

be increasingly so to the extent that legal analysis becomes less formal. However, it is

difficult to see why in such a case the answer would be more scientific. As Rorty said,

‘[s]ocial scientists, like novelists, poets, and politicians, occasionally come up with

good ideas that judges can use. For all I know, the brand of economics that centres

on considerations of efficiency may provide Hercules with some very useful ideas.

But I am fairly certain that it would be hard for Posner to explain what was

especially scientific about either the genesis or application of those ideas. My

assurance on this point is the result of watching many philosophers try and fail to

find an epistemic or methodological, as opposed to a sociological or moral,

distinction between science and non-science.’57

To the extent that the normative assumptions underlying these ideas remain implicit,

such ideas may even be more doubtful from a scholarly perspective. With some irony

legal scholars, who are generally more familiar with the different sides of disputes and

are more used to dealing with divergent normative claims and assumptions, could even

claim to be the true masters of normative science.58

IV. What is good about legal method

A. Radical internal critique

This is not the place to go into the question of to what degree the sources of law

actually determine legal outcomes. For present purposes it suffices to recall that,

although almost all answers to legal questions and all legal methods might be (and

often have been) subject to powerful and sometimes devastating critique, or challenged

by competing answers to legal questions and alternative legal methods, none of this

seems to lead to the conclusions that there is no such thing as legal reasoning, or legal

method, or that there is no difference at all between law and politics, or that an internal

perspective is impossible. As Duncan Kennedy says, ‘if the project of legal necessity is

a Golden Bowl, no one has found the fatal flaw that would allow us to shatter it with a 57 Richard Rorty, Philosophy and Social Hope (Penguin, 1999), 96. 58 In this sense, see A.H. Hol, ‘Pleidooi voor een Jurisprudentia - Over recht en wetenschap’, in: J.W.L.

Broeksteeg, E.F. Stamhuis (eds), Rechtswetenschappelijk onderzoek. Over object en methode (Boom

Juridische Uitgevers, 2003), at 5.

19

single blow. Successful critique is “local”, even when the locality is a whole theory of

judicial neutrality.’ There is a shared sense that the project of answering legal

questions and developing legal methods is not pointless (even though the answer or

method proposed by the adversary definitely is).59 The implication is that what is

usually called ‘legal positivism’ is a legitimate practice that can yield knowledge

(scientific, if you like) and expertise. On the other hand, today nobody believes either

that answering questions of law is a matter of mere logical deduction (subsumption)

without any value judgment. This makes legal analysis a hybrid. It is messy.

The aim of legal methods is to make it less messy, eg by developing standards of

interpretation, by trying to demarcate the application of existing law and the creation of

new law by the courts, and by telling the courts what to do when the law 'runs out'.

From the internal (normative) perspective, the available legal materials must be

interpreted (on normative grounds) in such a way that they make the most sense and

that their outcomes are as just and foreseeable as possible. The aim of a legal method

is to contribute to that result. To the extent that the internal perspective makes sense

and yields determinate outcomes, legal method also makes sense and can contribute

to reaching the right (or best possible) outcome. Moreover, articulating one’s method

explicitly can contribute to make the outcome more foreseeable.

B. Legal method as making one’s normative assumptions explicit

Methodology is not a neutral science.60 Indeed, methodological choices in practice are

among the most political ones and the most relevant ones: they determine knowledge

production by setting the rules of the game. Methodological questions may seem to be

at the fringes of science and they often are kept there in good or bad faith (in what

Kuhn would call ‘ordinary science’) but that is different when one approach is contested

by another (in 'revolutionary science').61 Who wins the battle over methodology lays the

foundation for a whole paradigm which will be elaborated in all its details. The method

provides the basis for a dominant paradigm (Kuhn) and the fundamental choices and

assumptions on which it is based, which were once controversial and contested, will 59 Duncan Kennedy, A Critique of Adjudication, 92. Compare Ronald Dworkin, Law’s Empire, 274, with

regard to ‘global internal scepticism’: ‘Nothing is easier or more pointless than demonstrating that a flawed

and contradictory account fits as well as a smother and more attractive one. The internal sceptic must

show that the flawed and contradictory account is the only one available.’ 60 In fact, by Popper’s standard it is not a science at all as it is not empirical. 61 Thomas Kuhn, The Structure of Scientific Revolutions (The University of Chicago Press, 3rd edn, 1996).

20

move to the background (Foucault).62 But if, say, neopandectism or law & economics

or the traditional legal method is rejected as a scientific method, because its underlying

assumptions are rejected, all their findings are placed in doubt. For example, it has

been argued that law & economics, law & behavioural science, law & neuroscience and

other similar disciplines that focus on free agency, competition and natural selection

are essentially neoliberal projects which all circle around the same ideas and values. In

this respect it is interesting to note that Karl Popper, who was a friend of Von Hayek,63

states his method in the terms of Darwin,64 who in turn was inspired by Adam Smith.

The implication is of course that these methods are less attractive to those who do not

share the (neo)liberal project.

The aim of a scientific method is to make scientific results objective. The idea is that if

the process for arriving at the proclaimed truth is ‘nachvollziehbar’ as the German say -

that is, it could be repeated by anyone, the statements cease to be subjective opinions

and turn into empirical data and objective facts. Where this is already doubtful for

empirical sciences because the scientific method will necessarily have to be based on

a number of assumptions which will lead to an infinite regress - hence Popper's rather

relativist position with regard to ‘facts’,65 it is even more problematic for normative

sciences. The reason for this is that there the assumptions concern values - what is

good and what is bad - and people differ substantially about values and - more

importantly - they tend to care more about these values than about the truth of most

positive claims. For example, if someone proposes a private law method which claims

that, in case of doubt or when the law runs out (there is a ‘gap’), private law must be

interpreted in a way that fits best with private autonomy, which is the basic principle

that underlies private law, she will have to convince the audience not only that the law

is based on unwritten principles (ie principles that are not set out explicitly in the code

or statute), but also that party autonomy is the most fundamental among them. She will

probably try to do so either by showing how much private law is already based on party

autonomy (and then the argument becomes circular) or by showing how good private 62 Michel Foucault, Les mots et les choses; une archéologie des sciences humaines (Gallimard, 1966). 63 Conjectures and Refutations (Routledge Classics, 2005) is dedicated to him. 64 The theory of falsification is very similar to Darwin’s theory of natural selection. Popper more than once

explicitly adopts Darwin’s terminology. See eg Popper, Scientific Discovery, 91: ‘We choose the theory

which best holds its own in competition with other theories; the one which, by natural selection, proves

itself the fittest to survive.’ 65 Popper, Scientific Discovery, ch 5.

21

autonomy is for individuals and society as a whole and how much better it is than other

values such as social solidarity. For those who do not believe this - in other words, for

those who do not share this value to the same extent - the sophisticated building

edified on this assumption is of little value. These assumptions are not necessarily as

ideological as in the example of autonomy. Also methods that aim to interpret the law in

a way that makes it (look) coherent is based on the normative assumption that it is

good for a legal system to be coherent (eg because of the equality principle) and on a

more specific view on how important coherence is in comparison to other values, in the

likely case that it should come to a conflict with other desirable characteristics of a legal

system (eg that the law of contract should become more European), based on other

values (eg the value attributed to a well functioning internal market, or to the

contribution that European unity is thought to make to stability and peace).

In sum, a method for normative science is necessarily based on normative

assumptions, and it is unlikely that people will ever reach a final agreement on these

assumptions. There are as many legal methods as there are ways of looking at the

world. By the same token there are as many versions of the legal system as there are

individuals. Articulating one’s version of a legal method may contribute to making the

legal debate more transparent. It may even be worthwhile for legal scholars to

articulate these methodological premises in their publications or, in order to avoid

repetition, once for a set of publications, eg on their personal websites.66 In the

international and European contexts this is even more desirable because the European

and international legal and academic communities are less homogenous than those on

the local level; so misunderstandings are much more likely if assumptions remain

implicit.

Having said that, a debate on European legal method is not likely to make controversy

go away. On the contrary, it will bring underlying assumptions of European private law

scholarship, which are currently lurking in the background, to the foreground where

they belong. Therefore, a debate on the method of European private law could

contribute immensely to the transparency of European legal scholarship. With a view to

66 This seems to be much more useful than the methodological guidelines that some want to borrow from

other sciences (formulating falsifiable hypotheses et cetera). See eg R.A.J. van Gestel, J.B.M. Vranken

‘Rechtswetenschappelijke artikelen. Naar criteria voor methodologische verantwoording’, Nederlands

Juristen Blad 2007, 1448.

22

the important role that legal scholars effectively play in the shaping of European private

law, this transparency is most desirable. It would mean bringing the current European

private law debate to the more fundamental level, the level of its normative foundations.

Apart from some non-controversial questions of logic and from some terminological

issues (but even terminology easily becomes political) the debate will mainly have to be

about underlying values. It would be a debate about the values that one attributes to

the system and in the light of which one interprets it, eg through postulated 'principles'.

These may prove a powerful tool in bending the law one's way by means of

'interpretation' or filling up ‘open norms’ in general clauses such as good faith. To put it

strongly: ultimately there is not much difference between the debate on social justice in

European private law and the one on European legal method.

C. Articulating a method of legal scholarship

Adopting a legal method implies, in particular, adopting a theory of law (and

adjudication) and probably (depending on the theory of law) also a theory of justice.

The definition of ‘law’ depends on the purpose and context of the definition. If law is

studied as a phenomenon, then a positive definition is required. However, if the law is

studied as a binding set of norms, from the internal perspective, then a normative

definition is needed. In the latter case, the definition can only be for a specific legal

system (the legal system of a specific community). It is a definition of what counts (or

rather: what should count) as the legal system for the community in which the internal

perspective is adopted. There can be no universal theories of law as a norm.

Such a theory of law requires, among other things, a view on what role political,

economic, historical, comparative and other ‘external’ arguments should play in legal

analysis (ie a normative position on how separate the legal system should be from

politics, economics, legal history and other related discourses). Seen from the other

side, this is a position on how much legal outcomes can and should be determined

exclusively by ‘legal sources’. In other words, the choice for a theory of law implies a

position with regard to the idea of sources of law and, if adopted, on a more operational

level, the recognition of a certain set of sources. The next question is how these

sources should be interpreted and what should happen when these sources do not

seem to provide an answer (‘the law runs out’) or provide more than one different

answer (contradiction). Finally, the theory should answer the question what should

happen if the outcome that seems to follow from the sources seems unfair. This

23

requires a theory of justice. The theory should determine which role the law plays in

achieving social justice and what should count as a just outcome.

The next question is whether any method(s) we adopt when dealing with European

private law should be European, and what this means.

V. Towards a European legal method

A. Whose method?

1. The struggle for hegemony

Several German legal scholars have argued that we need a European legal method.67

Unlike what one might expect, these scholars are not concerned, in the first place, with

the academic quality of European private law scholarship, be it outside or within

Germany. Their real concern is with the application of the law by the courts, in

particular the ECJ. The idea is that the application, interpretation and further

development of European law - unlike the application of German law - is insufficiently

rational, principled, foreseeable, and that legal scholars must do something about it.

They must do so by prescribing the courts (and all others who apply the law - in the

sense of answering questions of law -, including themselves) how to interpret and

further develop European law. Obviously, the idea fits well with the view that the

communis opinio doctorum on a legal question (die Lehre, la doctrine) matters: if legal

scholars can be experts who can provide right answers to questions of law, they

certainly must have expertise with regard to the method needed for arriving at these

answers. However, as said, the status of legal scholars is different, in this respect in

different countries (judges, legislators and professors). And a leading role or even a 67 See eg Klaus-Peter Berger, ‘Auf dem Wege zu einem europäischen Gemeinrecht der Methode’

Zeitschrift für Europäisches Privatrecht 2001, 4; Axel Flessner, ‘Juristische Methode und Europäisches

Privatrecht’, Juristen Zeitung 2002, 14; Stefan Vogenauer, ‘Eine gemeineuropäische Methodenlehre des

Rechts - Plädoyer und Programm’, Zeitschrift für Europäisches Privatrecht 2005, 234, and the

contributions to Karl Riesenhuber (ed), Europäische Methodenlehre; Grundfragen der Methoden des

Europäischen Privatrechts (De Gruyter, 2006). See from Switzerland: Ernst A. Kramer, 'Konvergenz und

Internationalisierung der juristischen Methode', in: Christian J. Meier-Schatz (ed), Die Zukunft des Rechts

(Helbing & Lichtenhahn, 1999), at 71. In favour of a European theory of legal sources ('europäische

Rechtsquellenlehre'): Johannes Köndgen, 'Die Rechtsquellen des Europäischen Privatrechts', in: Karl

Riesenhuber (ed), Europäische Methodenlehre; Handbuch für Ausbildung und Praxis (De Gruyter, 2006),

at 133, 158.

24

monopoly for legal scholars with regard to legal method is absolutely not a necessity.

There are countries where the legislator has instructed the courts how to apply the law.

The classical example is the Titre préliminaire of the French civil code.68 And there are

also examples where the courts themselves give guidelines for interpretation. Think

only of the rule developed by the ECJ that national law must be interpreted in

conformity with Community law (harmonious interpretation),69 in particular directives,

and the principle, adopted in many different contexts, that EC law must be interpreted

autonomously. Therefore, the efforts made by scholars towards a European legal

method can best be seen in terms of the power struggle between judges, legislators

and professors.

This brings us back to the relationship between legal scholarship and legal practice.

Legal scholars are not the only ones who are interested in the right answers to legal

questions. Therefore, any information that legal scholars can provide to judges and

advocates concerning the answer to legal questions (positive law) or the way in which

the answer must be found (legal method) may be of direct use to the exercise of their

profession. On the other hand, however, scholars in many countries have recognised

‘case law’ (la jurisprudence) as a source of law which must be taken into account when

finding the right answer to questions of law. However, that is not the case in all

countries: be it on account of the formal argument that neither the constitution nor a

statute recognises it as a source, or of the ideal of the separation of powers (courts

should apply the law, not create it). And in some countries where case law is

recognised as a source of law, it is not considered to be the only or final authority, at

least not in all cases.70 In those countries, therefore, scholars’ accounts of the existing 68 The full title is Titre préliminaire: De la publication, des effets et de l'application des lois en général. It

contains rules such as: art. 5: ‘Il est défendu aux juges de prononcer par voie de disposition générale et

réglementaire sur les causes qui leur sont soumises.’ See also arts 6-8 Austrian ABGB and the famous art

1 of the Swiss Civil Code (which, in para. 3, refers to legal doctrine and case law). 69 Claus-Wilhelm Canaris, 'Die richtlinienkonforme Auslegung und Rechtsfortbildung im System der

juristischen Methodenlehre' in: Helmut Koziol & Peter Rummel (eds), Im Dienste der Gerechtigkeit

(Festschrift Franz Bydlinski) (Vienna, New York: Springer 2002), at 47, rightly points out that in this context

the concept of 'interpretation' as it is used by the ECJ must be understood as including both interpretation

in a strict sense (which remains within the possible meaning of the words in the law) and the further

development of the law (he speaks of 'richtlinienkomforme Rechtsfortbildung') in case it contains gaps

(interpretation contra legem is forbidden), as they are usually distinguished in Germany and some other

Member States. 70 Larenz, Methodenlehre, 429, drew a conceptual distinction between sources that produce law

25

law (positive law) may differ, sometimes considerably, from the case law by the

supreme court. In those cases, they will say that the decision by the supreme court was

wrong, not morally wrong or economically unsound or politically unwise but legally

wrong: a correct interpretation of the legal sources would lead to a different result.71

Obviously, this practice has a price. In most countries, courts tend to follow their own

precedents and that of the higher courts (whether or not by explicitly recognising their

own case law as a source of law,72 or through a formal rule of stare decisis). And since

legal practitioners are mainly interested in the likely outcome of cases that come before

the courts (on this point Holmes was right, of course), they will care little about

‘scientific knowledge’ or the prevailing opinion in ‘la doctrine’ or ‘die Lehre’ if it deviates

from case law, right as these scholarly opinions may be on their own terms. Therefore,

to the extent that ‘la doctrine’ ignores case law as a source of law it makes itself

irrelevant. (However, a ‘doctrine’ that slavishly follows the courts and never says that

they are wrong (in law) also risks losing much of its influence.73) The relevant point

here is that the legal community that engages in answering legal questions is broader

than the academic community.74 Therefore, it is not obvious, to say the least, that a

debate on legal method in Europe should be limited to legal scholars or should be led

by them: is it primarily for the academic community to determine the rules of the game?

2. An open method of coordination

Moving from an external to an internal perspective, from the descriptive to the

normative, the question is therefore with whom we, as European legal scholars, are to

share the internal perspective. Who should be the community with whom we should

decide on the appropriate method? Should anyone within the given territorial borders -

on this further below - be excluded on account of the fact that they are not legal ('Rechtsgeltungsquellen') and sources that merely say what the law is ('Rechtserkenntnisquellen'). The

latter category includes, in particular, case law and scholarly writings. Contrast Canaris (Larenz,

Methodenlehre, 256) who recognises case law as a Rechtsgeltungsquelle. 71 Rodolfo Sacco’s theory of comparative law is based on the idea that, with regard to the same legal

question, different ‘legal formants’ in one legal system can point in different directions (Rodolfo Sacco,

‘Legal Formants: A Dynamic Approach to Comparative Law’, 39 American Journal of Criminal Law (1991),

1-34 and 43-401). 72 Again, we see some Baron von Münchhausen traits. 73 Canaris warns of ’die Verzwergung der Rechtswissenschaft zur Rechtsprechungskunde’ (Claus-Wilhelm

Canaris, Karl Larenz Lehrbuch des Schuldrechts (Beck, 13th edn, 1994), vol II, part 2, vi. 74 Contrast Tamanaha, Realistic Socio-Legal Theory, 1270, according to whom judges and legal scholars

‘are involved in completely separate and very different practices.’

26

scholars? And, specifically, if we are to recognise, within our method, case law as an

important source of law, should it then not also be recognised as an important ‘source’

of legal method?

It should be reminded that these questions are normative questions which require

value judgments. It is submitted here that the practices of legal scholarship and of

adjudication in European law make more sense (coherence, foreseeability and, indeed,

justice are more likely) to the extent that they take place, as much as possible, on the

same terms. A legal scholarship that would aim to answer legal questions exclusively

on its own terms and with its own methods, in isolation from legal practice, would be

pointless. Therefore, a common legal method, with a common idea concerning legal

sources and interpretation, seems desirable. Such a common method can only be

developed in a dialogue between all those affected, ie the legislator, the courts and

scholars on all levels of governance (notably the national and the Community level) -

an open method of coordination as it were.

B. The definition of the European system of private law

The next question is what should count as the legal system for which the method is

meant. This raises the question whether European (private) law is a legal system that

can be studied from the inside.

By definition, with the traditional legal method one studies a specific legal system. The

aim is not to obtain general insights into the phenomenon of law. One tries to find the

(right) answers with regard to questions of law according to a given system of law.

Normative questions always relate to the specific community where these norms apply.

Only under a natural law theory are there norms of universal application. The normative

science that studies the law from the internal perspective must therefore necessarily

relate to a specific legal system. There are no universal answers to, say, questions of

contract law. The relevant system does not necessarily have to be a national system; it

may very well be a system of international, European, regional or municipal law. What

matters is that one’s findings have no claim for universality, as is the case in most other

sciences.75 The implication is that a legal method, which is the method for the

75 Even though those claims of universality may be very abstract since in practice the findings of eg

vulcanologists only really apply to places where there are volcanoes. In the same terms one could even

construe a claim with regard to Dutch law as a universal claim, valid for all places having the current Dutch

27

normative study of a given legal system from the internal perspective, must necessarily

be local as well.76

Of course, this does not exclude that, from an external perspective, legal methods (like

legal rules or outcomes) in different legal systems may look very similar, especially

when they are situated in countries with very similar social, economic and cultural

conditions or when they share a common history. Nor does it exclude that they

converge gradually as a result of Europeanisation and globalisation.77 Moreover, even

though foreign methods are not binding on local law appliers they can be a source of

inspiration when developing a local method, especially when the social, economic and

cultural conditions are similar or if one wishes (or feels compelled) to have a closer

connection with the country or system from which one is borrowing, or when further

international or European convergence is thought to be desirable. As a result of such

inspiration from abroad the borderline between the external and internal perspective

will be both blurred and become less important, which will be a further step in the

direction of a less formal legal culture in Europe. Nevertheless, however internationally

inspired a legal method may be, as long as there are borders it will still remain local to

some degree. This raises the question to what extent European private law is a legal

system that can be studied from the internal perspective and the more difficult one of

what its limits are.

Adopting the idea of the localness of a legal method, the German scholars that have

argued for a European legal method argue that they cannot simply apply the usual

German method, with its canon of recognised modes of interpretation (grammatical,

historical, systematical and teleological) et cetera,78 to European law.79 A new method

legal system. 76 In the same sense see eg Kramer, Konvergenz, 71 ('Es gibt bekanntlich, wenn man dies

rechtsvergleichend betrachtet, keine universal "gültige", einheitliche juristische methode'). On the link

between the method of interpretation and a given legal culture (in time and place) see Stefan Vogenauer,

Die Auslegung von Gesetzen in England und auf dem Kontinent (Mohr Siebeck, 2001), especially his

fourth conclusion: no legal method is a priori superior to another. 77 See Kramer, Konvergenz; passim Ole Lando, 'Some features of the law of contract in the Third

Millennium', (2000) 40 Scandinavian Studies in Law, at 343, 361. 78 See Larenz, Methodenlehre, 141. This canon goes back to F.K. von Savigny, Juristische Methodenlehre

(Köhler Verlag, 1951), 19. 79 See eg Vogenauer, Eine gemeineuropäische Methodenlehre; Karl Riesenhuber, ‘Europäische

28

has to be developed, that is common to all Europeans, and that is specifically adapted

to European law. That method has to be applied to European law which is defined as

the primary and secondary law of the European Union. The latter, when it comes to

directives (at present the most important source of Community private law) extends to

the parts of national law that were adopted or changed pursuant to the transposition of

a directive and, according to some, also to national law that was adopted when

transposing but went beyond what was required by it (‘überschießende Umsetzung’).80

However, that is the limit: the part of German private law that has remained unaffected

by the Community legislator remains subject to the domestic legal method.

On this view Germans live under two different, albeit interconnected, legal systems,

each with its own legal method, ie German law and Community law.81 This notion is

problematic in a number of ways: practical, theoretical, political and conceptual. First,

different methods apply to different parts of the Bürgerliches Gesetzbuch (BGB); each

part belonging to a different system with its own internal perspective. To the extent that

Community private law will grow and become more coherent there will be an increasing

tension between the two.82 It even raises the question of how long these two different

legal systems must remain codified in one code. Second, different methods may have

to be applied in the same dispute (and by the same court) in cases where the dispute

concerns different questions, one belonging to a subject that has been harmonised and

one that has remained national (eg offer and acceptance and remedies for non-

conformity respectively). Thirdly, the rules of European origin remain (also) German

law. Indeed, harmonised law is a hybrid, both European and national. Therefore,

should not at least a hybrid method apply to harmonised law? Of a different order is the Methodenlehre - Begriff, Inhalte und Bedeutung’ in: Karl Riesenhuber (ed), Europäische Methodenlehre;

Grundfragen der Methoden des Europäischen Privatrechts (De Gruyter, 2006), 1. 80 See eg Vogenauer, Eine gemeineuropäische Methodenlehre. The best example of überschießende

Umsetzung is the recent reform of the law of obligations in Germany. This Schuldrechtreform was

triggered by the obligation to transpose a number of directives concerning consumer protection but

extended many of its rules beyond consumer contracts. 81 In the same sense, it seems, Hondius, Nieuwe methoden, who reserves the European legal method

('communautaire rechtsvinding') for Community law-related cases, and probably also Canaris, Die

richtlinienkonforme Auslegung, who, however, seems to have a less rigid conception of the borderline

between the two, eg where he considers a radiating effect ('Ausstrahlungswirkung') of Community law,

beyond harmonious interpretation, into the law that is beyond the scope of the directives. 82 On this growing tension, see further M.W. Hesselink, ‘The Ideal of Codification and the Dynamics of

Europeanisation: The Dutch Experience’, 12 European Law Journal (2006), 279.

29

question what should happen to rules that are directly applicable. In the area of

contract law, think of Article 81 (2) EC that declares cartels void. Community law leaves

the private law consequences to national law, but the ECJ increasingly requires

national law to meet a number of standards. After Courage/Crehan and Manfredi are

the private law consequences still (exclusively) a matter of national law?83 In other

words, in a dispute between private parties concerning an asserted cartel, certainly the

European method must apply to the cartel part, but to the private remedies (damages,

injunctions et cetera) should the European method apply or the national method or

both? Even more problematic are the four freedoms. In principle, they can affect any

area of national law including private law. A rule - also of private law - that violates any

of these freedoms has to remain inapplicable. So, it is difficult to see where the

borderline should lie between the parts of the law that should be studied, applied,

interpreted and further developed (by the courts, scholars, students) under one method

or under another.

The next problem is the Common Frame of Reference (CFR. This year, the 'academic

draft' of CFR was published.84 In its Action Plan on European contract law, the

European Commission has announced that it envisages adopting such a CFR, which

will be instrumental in revising the Acquis and could provide the basis for an optional

European code of contracts.85 Moreover, it is the Commission’s plan that the CFR will

become the object of an inter-institutional agreement between the Commission, the

European Parliament and the Council.86 This raises the question what effect the CFR

should have on adjudication. This is a classical question of legal method (sources of

law). And even if the answer is none (as is often suggested) then still the question

arises, where, and according to which method, national or European?

83 Case C-453/99, Courage and Crehan [2001] ECR I-6297; Joined Cases C-295/04 to C-298/04 Manfredi

[2006]. 84 Von Bar et al. (eds.), Principles, Definitions and Model Rules of European Private Law; Draft Common

Frame of Reference (DCFR) Interim Outline Edition (Sellier, 2008). 85 A More Coherent European Contract Law; An Action Plan, 12 February 2003, COM (2003) 68 final;

European Contract Law and the revision of the acquis: the way forward, COM (2004) 651 final. 86 See eg Commissioner Kyprianou’s opening address at the conference on ‘European contract law: better

lawmaking to the common frame of reference’ (first European Discussion Forum), London, 26 September

2005; Action Plan, 80; The Way Forward, 6.

30

The German idea relies on the constitutional notion that some rules are of purely

national origin and others of European Union (or mixed) origin. In a multi-level system

conceived in such a formal way the situation may become rather complex (and

artificial). Think only of the operation of general clauses. In several legal systems

(notably Germany and the ones inspired by it) general clauses like good faith are

regarded as gateways through which justice and constitutional values enter the legal

system. The EC directive on unfair terms contains, in Article 3, a test for unfairness that

refers to the concept of good faith. The directive has been transposed in most countries

(but not in all)87 with the national equivalents of the concepts of justice and good faith.

This raised the question whether these concepts of fairness and good faith had to be

understood as European concepts that had to be interpreted autonomously or as

identical to the local concepts or as something in between. This question was sent to

the ECJ by the German supreme civil court (BGH) in the Freiburger Kommunalbauten

case. In an earlier case (Océano) the ECJ had decided that a jurisdiction clause of the

kind at hand was unfair, independent of its local context, and that national law had to

be interpreted in conformity with the directive.88 This gave the impression that

unfairness (and good faith) in the national laws based on the directive was something

different from the local understandings of unfairness and good faith. However, in

Freiburger Kommunalbauten the ECJ told the BGH that it was for the national courts to

decide whether clauses of a certain type were unfair, taking into account the local

context.89 Therefore, it seems that in the eyes of the ECJ the concepts of unfairness

and good faith in the unfair terms directive are a hybrid, as harmonised law in Europe is

by definition. On the one hand, in Germany good faith is a portal for national

conceptions of justice and national constitutional values to be elaborated by the local

courts according to the local traditional method; on the other hand, there are minimum

(and possibly in the future also maximum) standards to be set by the ECJ according to

a developing European method, and which must then be applied by the local courts

according to the same European method. A rather schizophrenic situation. Unless, of

course, one accepts that the method for applying the good faith clause must be a

hybrid as well.

87 Poland, for example, used the concept of good customs. See article 3851 § 1 Polish civil code. 88 Joined Cases C-240/98 to C-244/98, Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941. 89 Case C-237/02, Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Ludger Hofstetter and

Ulrike Hofstetter [2004] ECR I-3403.

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Indeed, one could very well decide to regard the whole of contract law, or even of

private law, applicable in Europe as one multi-level system (downward looking:

international conventions like the CISG, European Community law, the 28 Member

State private laws, the existing regional private laws (eg of Catalonia), or as part of a

(pluralist) global system.90 This is not in itself prohibited by the formal constitutional

notion that some private law rules are of a purely national origin and others are of a

European Union origin while still others are mixed. In other words, the implications of

Europeanisation (and of globalisation) are more radical and unsettling than the German

scholars who call for a European method seem to realise. In many respects we are in a

post-national condition,91 without a Grundnorm (Kelsen) at the top of our pyramid of

laws (Stufenbau), or a ‘rule of recognition’ (Hart) for identifying the ‘primary rules’ that

belong to the legal system.92 As a result, it is very difficult to determine the limits of the

legal system. Vogenauer says that it is possible to agree on the need for a European

method, whatever one thinks of the desirability of European private law.93 However, the

opposite seems to be the case. It seems impossible to define a system of European

private law and its boundaries in an objective and static way. It all depends on the

conception one has of Europe, of where it is going and, especially, where it should be

going. Therefore, to me it seems perfectly legitimate to define one’s own condition as

being part of a multi-level European system of private law and to propose a

Europeanisation-friendly method of private law.94 Just as it is legitimate to propose an

autonomy-friendly interpretation of (European) private law even though no constitution

explicitly says that party autonomy is the underlying principle of private law. Clearly,

both localism (with emphasis on legal families, legal cultures etc) and universalism

(with emphasis on the market, social justice et cetera), like nationalism and

cosmopolitanism, have strong ideological connotations. But that does not make them

less legitimate. On the contrary, any normative method of legal analysis necessarily

has to be based on a certain way of looking at the world.

90 cf Gunther Teubner, ‘”Global Bukowina”: Legal Pluralism in the Wold Society’, in: Gunther Teubner (ed),

Global Law Without a State (Dartmouth, 1997), at 3. 91 See Jürgen Habermas, Die postnationale Konstellation. Politische Essays (Suhrkamp, 1998). 92 Contrast Canaris, Die richtlinienkonforme Auslegung, 53, who argues that the Stufenbau theory merely

needs to be adapted and that the idea of a pyramid of laws must be further developed into that of a 'double

building'. 93 Vogenauer, Eine gemeineuropäische Methodenlehre. 94 By the same token, it is legitimate to propose a globalisation-hostile or -friendly method.

32

To my mind, it is not only legitimate but also convincing to define European contract

law as a hybrid and dynamic multi-level system,95 that can be studied from the inside.

The tendency in contract law is clearly towards further Europeanisation. With the

Common Frame of Reference,96 the upcoming (probably horizontal) revision of the

acquis,97 and a possible future optional instrument,98 if we are not there yet we will

soon be beyond a turning point where the system is more European than national,

where the natural internal perspective will be the European one. The implications for

the European legal method are manifold.

What are the specific features of a method for a dynamic multi-level system? In such a

system, there is no Grundnorm, nor is there a Kompetenz-Kompetenz for saying on

what level legislation and other law making should take place.99 This also applies to the

legal method. There are players on all four levels (international, European, national,

regional). On each level, there are different players (including courts, legislators and

academics) having different roles and there are different sources of law with different

hierarchies. Therefore, it is well possible that we will (temporarily) have different

scholars, working within different paradigms: each with a different idea of what the legal

system is that they study from the inside. On the one hand, there will be those who try

to keep distinguishing formal borderlines between the national and European in an ever

more Europeanising legal culture (which includes not only legislation and adjudication

but also legal scholarship, legal education and advocacy). On the other hand, there will

be those who claim that in more substantive terms a common European legal system

with national ramifications already exists.

C. Underlying values: social justice

As said, in addition to a theory of law we may need a European theory of justice. What

underlying values do we attribute to the emerging system? Should European private

95 See Christian Joerges, ‘The Impact of European Integration on Private Law: Reductionist Perceptions,

True Conflicts and a New Constitutional Perspective’, European Law Journal 1997, 378. 96 See below. 97 See Green Paper on the review of the Consumer Acquis, 08.02.2007, COM(2006) 744. 98 See Action Plan, The Way Forward. 99 On the problem of Kompetenz-Kompetenz, see J.H.H. Weiler, The Constitution of Europe; “Do the New

Clothes Have an Emperor?” and Other Essays on European Integration (Cambridge University Press,

1999), esp. ch 9.

33

law only or mainly be interpreted with a view to market facilitation (favor mercatus)?100

Or in terms of the values expressed in the new Reform Treaty, including the Nice

Charter of Fundamental Rights to which it gives the same legal value as the

Treaties?101 Or should another specific set of values be developed, like the one

expressed in the introduction to the academic draft CFR?102

A specific question is whether the further Europeanisation of private law should itself be

regarded as a value that should underlie a European legal method. Several authors

have long advocated a ‘Europe-friendly interpretation’ of private law on the national

level, as a step towards further convergence.103 This would mean, for example, that if

Dutch law is the only legal system in the European Union where a party who breaks off

contract negotiations may be liable to compensate the loss of profit that the innocent

party would have made had the negotiations not been broken off (the expectation

interest), then according to this idea the next time the Dutch Hoge Raad hears a case

on broken off negotiations it should renege on its policy adopted in Plas/Valburg104 - as

it can, since the Dutch rule is a mere jurisprudential rule, not based on a provision in

the Civil Code - and limit liability to the reliance interest, like the vast majority of the

other Member States.105 However, by the same token the English House of Lords that

has rejected the duty to negotiate in good faith should abandon its Walford v Miles

ruling (which, however, was given in a single speech) and accept a duty of

100 And what does this mean? What is the character of Europe's internal market? See eg Miguel Poiares

Maduro, ‘Striking the Elusive Balance Between Economic Freedom and Social Rights in the EU’, in: Philip

Alston (ed.), The EU and Human Rights (Oxford University Press, 1999), at 449. See also the concept of

Europe's 'social market economy' that was introduced by Art 3 Para 3 of the Treaty of Lisbon 2007. 101 See Article 6. 102 See Von Bar, Draft Common Frame of Reference, 15-36. 103 See eg Christian von Bar, Gemeineuropäisches Deliktsrecht (Beck, 1996), Vol. 1, 406; Kramer,

Konvergenz, 81 and E.H. Hondius, Nieuwe methoden van privaatrechtelijke rechtsvinding en

rechtsvorming in een Verenigd Europa (KNAW, 2001), 43. Cf also Nils Jansen, 'Dogmatik, Erkenntnis und

Theorie im europäischen Privatrecht' Zeitschrift für Europäisches Privatrecht 2005, 750, who, however, is

more concerned with the development of common European legal concepts and legal doctrines than on

the mere convergence of outcomes. 104 Hoge Raad 18 June 1982; Nederlandse Jurisprudentie 1983, 723, note Brunner, Ars Aequi 32 (1983),

758, note Van Schilfgaarde (Plas/Valburg). 105 See John Cartwright & Martijn Hesselink (eds), Precontractual Liability in European Private Law

(forthcoming Cambridge University Press, 2008).

34

precontractual good faith.106 Personally, I favour a moderate version of such a favor

Europae interpretation rule, but I realise that it would be controversial.107

VI. Final remarks

What should European legal scholars do? In this article I have analysed the

relationship between legal method and European private law. I will briefly summarize

the main findings.

Legal scholars should not try, out of theory guilt, to imitate the natural sciences. If

science is defined narrowly as empirical science then legal scholarship will, by

definition, never be a science without completely changing its nature. There is no

epistemic distinction between the kind of knowledge produced by the natural sciences

and that by legal scholars, nor is their such a distinction between traditional legal

scholarship (from the internal perspective) on the one hand, and the external

perspectives on the law such as the economic analysis of law, on the other, or between

the study of national and more international parts of the law like European law. Any

existing differences relate, in particular, to the research questions and the different

agreed methods and practices for answering these questions. Each of these questions

and the conventional or unconventional way of answering it, is equally legitimate from

an academic perspective - in this sense anything goes, albeit that from a social, cultural

or economic point of view some questions are rightly considered to be more important

than others.

A (debate on a) European legal method is a good idea. Not primarily because it will

make European private law scholarship look more scientific, but because a debate on

the method of a normative science necessarily has to be a debate on its normative

assumptions. In other words, a debate on a European legal method will have much in

common with the much desired debate on social justice in European law. There are at

least two political dimensions to the idea of a European legal method. First, the

question of who aims to exercise power over whom. Secondly, the question of what

106 Walford v Miles [1992] 2 AC 128. 107 The best example of this method of interpretation is White v Jones [1995] 2 WLR 187, where the House

of Lords (Lord Goff) drew on the experience of a number of European jurisdictions, including German and

Dutch law, when it had to decide a case concerning third party rights.

35

should be the underlying values on which this common European legal method should

be based.

The Europeanization of private law is gradually blurring the dividing line between the

internal and external perspectives, with their respective appropriate methods, in two

mutually reinforcing ways. First, in the developing multi-level system it is unclear where

the external borders of the system lie, in particular the borders between Community law

and national law. Secondly, because of the less formal legal culture the (formerly)

external perspectives have easier access and play an increasing role as policy

considerations.

At least after the adoption of the Common Frame of Reference by the European

institutions, European contract law can be regarded as a developing multi-level system

that can be studied from the internal perspective. It is submitted that any European

legal method should fit the (hybrid) character of this dynamic multi-level system.

36