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=1113450

Electronic 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.

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.
Larenzs 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 Kelsens 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.

Of course, in John P. Dawson, The oracles of the law (1968), the phrase refers to judges.

Ronald Dworkin, Law's Empire (Fontana, 1986), 239.

cf Jan B.M. Vranken, Exploring the Jurists Frame of Mind (Kluwer, 2006), 146.

Karl Larenz, Methodenlehre der Rechtswissenschaft, 5th ed (Springer Verlag, 1991), 5.

Hans Kelsens 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
8

See eg Peter Stein, Roman Law in European History (Cambrigde University Press, 1999).
R.C. Van Caeneghem, Judges, Legislators & Professors; Chapters on European Legal History

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). 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 Frderung 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, gelrd zijn jullie wel!; Over de status van de rechtswetenschap, Nederlands

Juristen Blad 2003, 766.

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 Mnchhausen-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 clich) 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 Napolon and threatened by social scientists with their scientific methods, legal scholars in
th
France reinvented themselves in the second half on the 19 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.

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
Ktz 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 Ktz, 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 Wrtenberger (ed.), Rechtswissenschaft und
Soziologie; Ausgewhlte Schriften zur Wissenschaftslehre von Hermann Kantorowicz (Karlsruhe 1962), at
13, 27-28).

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, Poppers 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).

Clearly, legal scholarship as it has been traditionally understood would not be part of
Poppers 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 Poppers
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
Poppers 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 Darwins 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?)

C. What scientists do
Paul Feyerabend, a former pupil of Poppers, 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
Poppers 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. Rortys 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.

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
34

Steven Shapin, The Scientific Revolution (The University of Chicago Press, 1996).
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.

[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

Latours 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, Poppers 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

11

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 FERCs
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 others
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
49

See M.W. Hesselink, The New European Legal Culture (Kluwer, 2001)
In

Germany,

Canaris,

'Rechtsgewinningsquellen'

Die

richtlinienkonforme

(which

must

be

Auslegung,

distinguished

from

introduced

the

concept

'Rechtsgeltungsquellen'

of
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
Harts 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 Tamanahas
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 SocioLegal 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 Dworkins 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 multidisciplinary 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 sicle}

(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 fr

Neuere Rechtsgeschichte (1994), 85 says of the neopandectists: Stark bertreibend, und auch nur im
Sinne einer ebenso gutmtigen wie zusammenfassende Provokation knnte 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 ones method
explicitly can contribute to make the outcome more foreseeable.
B. Legal method as making ones 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, Laws 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 Poppers 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 archologie 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 Darwins theory of natural selection. Popper more than once

explicitly adopts Darwins 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 ones 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 europischen Gemeinrecht der Methode

Zeitschrift fr Europisches Privatrecht 2001, 4; Axel Flessner, Juristische Methode und Europisches
Privatrecht, Juristen Zeitung 2002, 14; Stefan Vogenauer, Eine gemeineuropische Methodenlehre des
Rechts - Pldoyer und Programm, Zeitschrift fr Europisches Privatrecht 2005, 234, and the
contributions to Karl Riesenhuber (ed), Europische Methodenlehre; Grundfragen der Methoden des
Europischen 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 ('europische
Rechtsquellenlehre'): Johannes Kndgen, 'Die Rechtsquellen des Europischen Privatrechts', in: Karl
Riesenhuber (ed), Europische Methodenlehre; Handbuch fr 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 prliminaire 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 prliminaire: De la publication, des effets et de l'application des lois en gnral. It

contains rules such as: art. 5: Il est dfendu aux juges de prononcer par voie de disposition gnrale et
rglementaire 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 Saccos 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 Mnchhausen 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 ones 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 "gltige", 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

(Khler Verlag, 1951), 19.

79

See eg Vogenauer, Eine gemeineuropische Methodenlehre; Karl Riesenhuber, Europische

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 (berschieende 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 Brgerliches 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 nonconformity 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), Europische Methodenlehre;
Grundfragen der Methoden des Europischen Privatrechts (De Gruyter, 2006), 1.
80

See eg Vogenauer, Eine gemeineuropische Methodenlehre. The best example of berschieende

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 Commissions 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 Kyprianous 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 (Ocano) 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, Ocano 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.

31

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 ones 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 Jrgen 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 gemeineuropische 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/Valburg 104 - 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, Gemeineuropisches 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 europischen Privatrecht' Zeitschrift fr Europisches 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