For several years, U.S. law schools have tended to expand the amount of empirical research within their walls, and this trend extends to Europe.1x J. Balkin, “Interdisciplinarity as Colonization,” 53 Washington and Lee Law Review 949 (1996); E. Chambliss, “When Do Facts Persuate – Some Thoughts on the Market for Empirical Legal Studies,” 71 Law and Contemporary Problems 17 (2008); R. van Gestel and H. Micklitz, `Methods in European Legal Scholarship`, 20 European Law Journal 292 (2014). As with any newcomer to a competitive field – and research is certainly competitive at the individual, institutional and perhaps national level – this development raises the question: who wins and who loses? The most obvious and immediate lines of competition are between empirical law (ELS) and traditional doctrinal legal research (DLR), as well as between law faculties and social science faculties. The expansion of the ELS could be seen as an initiative of assertive social scientists to challenge the DLR as a way to talk about law in society, or as an initiative of assertive (and wealthy) law schools in the United States to challenge social science faculties in their own game. This is not to say that the process is necessarily a simple one-on-one competition. Absorption, interdisciplinarity – or failed colonization, as Balkin calls reflection – and fragmentation are among the reactions that disciplines can elicit when they meet.2x Balkin, ibid.
As the ELS grows, he might find that the law school environment is changing it – that it absorbs more qualitative methods and is increasingly subject to the theoretical frameworks of legal thought, rather than those that come solely from the social sciences and humanities. When law schools succeed in becoming important players in the (largely quantitative) world of social sciences, they may find that this changes their own character and reduces their autonomy as they are subject to the methodological disciplines of a broader field. The colonizer will inevitably also be changed, even colonized in some mesure.3xEbenda.Je am interested in how the future of the SLA and the faculties of doctrine and law will be revealed, and whether there will be a simple competition for domination or whether, in particular, SLA and doctrine will exert mutual influence and perhaps converge in method and interests, and what it will mean for everyone involved. A small step towards forming an expectation about this – perhaps a predictive theory – is to think about the fundamental relationship between ELS and DLR. What are they all trying to do? What are their main differences? To what extent are they related, or even interdependent? It doesn`t tell us how their future will unfold, but it does suggest how they could and can help think about how they should think about it. It can provide a basis for future empirical research. This article attempts to explore this relationship. He inevitably begins with a brief account of the rise of the ELS, which he seeks to place in the context of other legal research movements as well as institutional and educational developments.
Subsequently, one wonders how the relationship or interrelationship between ELS and DLR is often idealized and how it was idealized in practice and finally, which relationship would be the most coherent and synergistic. Then, in the last part of the article, the price of this consistent synergy is examined. When ELS and DLR are part of a joint project to understand how the law works in action, they inevitably give up some autonomy, both in their research agendas and in their methodology. How do they change and what do they give up when they enter each other`s orbit? To some extent, this debate has taken place. There is extensive scientific work on the methodological and political problems of the ELS – from the perspective of a lawyer, especially a critical lawyer – as well as on a strong defense. Much of this will be repeated in the following text. However, my goal in looking at this review is not to see what kind of research is “the best,” no matter how one may define it. Instead, criticism is used to understand how different ways of studying the legal system might influence each other and what there is to gain and lose from existing methodological communities.