Adams and Van Hoecke – Comparative disciplines and comparative law: epistemological and methodological issues

Comparative Law has long been faced with a problem of methodology. Traditional national legal doctrine has always focused on the identification of the valid law and the interpretation of texts aiming at maintaining coherence within the legal system. At the same time adapting the law to changing circumstances and views in society has no doubt been a major undertaking also carried out by lawyers in different positions. Yet in all those cases little use has been made of other disciplines. Lawyers seem to think that they understand human beings and human societies well enough without the disciplinary help of sociology, economics, history and other subjects.

It is no surprise therefore that they often act in this way when comparing different legal systems.  Doing comparative law is understood as an instance of the more general form of legal research, and “the way in which it attempts to reconstruct both the foreign and the researcher’s own legal systems is similar to general legal research on either of those systems.”[1] However jurists are very soon confronted with the limits of an approach in which they are cut off from their historical, sociological, economic and cultural context of law.

All scientific work begins with a question, either of a ‘what’/’how’ (facts) or of a ‘why’ (theory) kind. Research questions always come before research methods. The multiplicity of aims and questions is also the main reason why it is impossible to speak of the method of comparative law. Comparative law from this point of view is a collection of methods that may be helpful in seeking answers to an almost endless variety of questions about law or legally relevant objects. Questions that are not only about norms, cultures, legal systems, institutions and the like, but also about what counts as similarities or differences. Questions about what effect law has; or about how to harmonize legal systems; or questions about how and why a legal culture develops, diffuses, or influences other legal cultures; or about what are the implicit cultural assumptions of lawyers, judges, legislators and legal scholars. The questions can be aimed at furthering (legal) knowledge and understanding of some sort; or to aid law reformers or the judiciary in finding solutions to particular problems; or to unify law or create convergence among legal systems and cultures; or to facilitate choice between legal systems and so on. The questions, moreover, almost always assume firm knowledge of a specific domain of the law as such, but answering them very often requires knowledge about some other discipline as well. And, depending on the specific question, they can and should be approached through (a combination of) different disciplinary angles: sociology, economics, cultural studies and the like.

The process of trying to understand foreign law with an eye to subsequent comparison gives rise to particular problems because it goes far beyond mere fact-finding and the national ways of legal interpretation where lawyers engage the (just mentioned) social or cultural context as an almost natural given when determining the meaning of the law. This is indeed one of the main reasons why one of the key areas of scholarly debate on modern comparative law research methodology is the relation between legal and other approaches. Interdisciplinary research is in the heart of comparative law today.

One would expect comparative legal researchers to engage with historians, sociologists, political scientists, anthropologists, linguists, philosophers, economists and others. This however hardly ever happens. It is, then, the aim of this series of seminars to try to learn from other (comparative) disciplines, and to establish more firmly comparative law itself as a truly interdisciplinary ‘discipline’ – a discipline that builds on solid knowledge of the legal discipline as much as it builds on other disciplines. We will be doing this by trying to draw on the experience of the comparative methodology and comparative knowledge of other disciplines. Within this pursuit we have a double focus: first with regard to the type of interdisciplinary research question upon which we are keen on building, and second with regard to the type of disciplines – or disciplinary approaches – with which we want to engage.

As far as the first focus is concerned, it seems worthwhile to make the reader aware of the disciplinary combinations that are possible. Van Klink and Taekema have identified four types, of interdisciplinary legal research^[2]

• In the first type of interdisciplinary research the non-legal discipline is used merely heuristically and possibly arbitrarily. The perspective as such remains firmly within the legal framework, and the other discipline has no argumentative force of its own and is not needed to answer the research question.

• In the second type of interdisciplinary legal research, the other discipline is not just used additionally but also constructively. Again, it is the legal researcher who provides for the problem definition and the research question, but in order to be able to answer the research question, the input of another discipline is necessary.

• The third type is coined ‘multidisciplinary research’. Two or more disciplines, including the legal, are being used as equally important perspectives. As a result, the legal perspective no longer prevails, and each of the disciplines provides a definition of the central problem to be researched. The core of such research is a study in which the transfer of knowledge is not one-way but at least two-way: each of the disciplines involved is both a source and a target domain. The types of question to be asked are for example these. Does this or that rule make a difference in social interaction? If so, to what can this difference be attributed and how does this come about? This type of interdisciplinarity asks for a fuller command of the disciplines that are being drawn upon. Comparison here provides an essential angle to test hypotheses and theories.

• The fourth type of interdisciplinarity fully integrates two or more research perspectives. It starts with an integrated problem definition and research question and ends with conclusions that are justified for all the disciplines that are being used in the research project. In such a ‘transdisciplinary’ approach one tries to leave the specific perspectives of each discipline and to construct a new conceptual and theoretical framework at a higher level.

The ambition here is not to create a new discipline at a ‘higher’ level (transdisciplinarity). Instead we will focus on comparative law as a discipline which aims at developing knowledge about the law, and where law is not just one variable next to many other equally important disciplines. Nevertheless we would hope that comparative legal research will transcend a pure juxtaposition of perspectives, not just methodologically when comparing different legal systems, but also respecting at the same time the identity of each discipline involved. Interdisciplinary comparative law research can, then, most fruitfully be located somewhere on a scale between the second and third type of interdisciplinary legal research. What is envisaged is an approach where the legal perspective is still dominant (but the input of another discipline is necessary to be able to answer the research question) or where two or more disciplines, including the legal, are being used as equally important perspectives and where there is a dialogue between them.

This brings us to the second focus of this project, which has to do with the type of disciplinary approach involved.

Some disciplines, such as theology and philosophy, literary or language studies, largely concentrate on texts and on hermeneutic or interpretative approaches which are dominant in the humanities. In legal doctrine, as well as in legal practice, the interpretation of texts is also a core activity.

Some other disciplines, such as sociology, anthropology or psychology focus on human behaviour, and it is precisely human behaviour which law aims to regulate and to control. The more qualitative approaches from these social sciences are the dominant research modus. Comparison in both of these realms mostly focuses on cultural differences related to the research objects, and the main aim might well be understood as being of a more exploratory type, that is gaining an understanding of the underlying reasons, opinions and motivations for societal developments or phenomena.

Comparative Law has often neglected such cultural differences, as is the case for some scholars in other disciplines. In this regard comparative law may gain important insights from the two categories of disciplines; that is to say from the humanities and from the social sciences, most notably in their comparative and qualitative (interpretative) versions.

[1] J. Bell, “Legal Research and the Distinctiveness of Comparative Law”, in M. van Hoecke (ed.), Methodologies of Legal Research. Which Kind of Method for What Kind of Discipline, Oxford: Hart Publishing, 2011, p. 175.

[2] B.M.J. van Klink and H.S. Taekema, ‘On the Border. Limits and Possibilities of Interdisciplinary Research’, in B.M.J. van Klink and H.S. Taekema (eds), Law and Method. Interdisciplinary Research into Law, Tübingen: Mohr Siebeck, 2011, p. 7.

Maurice Adams (Tilburg University)

Mark Van Hoecke (Queen Mary University of London)

(Suggested citation: M. Adams and M. Van Hoecke, “Comparative disciplines and comparative law: epistemological and methodological issues”, available at https://british-association-comparative-law.org/2017/02/13/adams-and-van-hoecke-comparative-disciplines-and-comparative-law-epistemological-and-methodological-issues)