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 Methodologies of Legal Research

Until quite recently questions about methodology in legal research have been
largely confined to understanding the role of doctrinal research as a scholarly
discipline. In turn this has involved asking questions not only about coverage
but, fundamentally, questions about the identity of the discipline. Is it (mainly)
descriptive, hermeneutical, or normative? Should it also be explanatory? Legal
scholarship has been torn between, on the one hand, grasping the expanding
reality of law and its context, and, on the other, reducing this complex whole to
manageable proportions. The purely internal analysis of a legal system, isolated
from any societal context, remains an option, and is still seen in the approach of
the French academy, but as law aims at ordering society and influencing human
behaviour, this approach is felt by many scholars to be insufficient.
Consequently many attempts have been made to conceive legal research
differently. Social scientific and comparative approaches have proven fruitful.
However, does the introduction of other approaches leave merely a residue of
‘legal doctrine’, to which pockets of social sciences can be added, or should legal
doctrine be merged with the social sciences? What would such a broad interdis-
ciplinary field look like and what would its methods be? This book is an attempt
to answer some of these questions.

European Academy of Legal Theory Series: Volume 9

EUROPEAN ACADEMY OF LEGAL THEORY
MONOGRAPH SERIES

General Editors
Professor Mark Van Hoecke
Professor François Ost

Titles in this Series

Moral Conflict and Legal Reasoning
Scott Veitch

The Harmonisation of European Private Law

edited by Mark Van Hoecke & Francois Ost

On Law and Legal Reasoning

Fernando Atria

Law as Communication
Mark Van Hoecke

Legisprudence
edited by Luc Wintgens

Epistemology and Methodology of Comparative Law

edited by Mark Van Hoecke

Making the Law Explicit

The Normativity of Legal Argumentation
Matthias Klatt

The Policy of Law

A Legal Theoretical Framework
Mauro Zamboni

Methodologies of Legal Research

Which Kind of Method for What Kind of Discipline?
edited by Mark Van Hoecke
Methodologies of
Legal Research
Which Kind of Method for
What Kind of Discipline?

Edited by

Mark Van Hoecke

OXFORD AND PORTLAND, OREGON

2011
 Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
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 Preface
In order to develop a suitable methodology of comparative law, one needs a bet-
ter view on the methodology of legal scholarship within domestic legal systems.
Also, within the context of the current debate on the scientific status of legal
scholarship, the question arises as to what kind of discipline legal doctrine is
(or should be) and which kind of scientific methodology is most appropriate
for what kind of legal research. Here, we are faced with diverging traditions of
legal scholarship (eg United Kingdom versus Continental Europe) and diverging
underlying theories of ‘legal science’ in the course of history: a ‘positive moral
science’ (natural law tradition), a discipline aiming at discovering the will of the
(historical) legislator (exegetic school), an interdisciplinary discipline (law in
context), a social science (legal scholarship as an empirical discipline), a con-
ceptual structure (Begriffsjurisprudenz), a normative ‘imputation discipline’,
clearly distinguishing ‘is’ and ‘ought’ (Kelsen), etc. All this could lead to the
following questions:

In general:
(a) linking specific approaches and specific methods, on the basis of the various
types of research and other distinctions mentioned hereafter;
(b) or scrutinising more deeply one of these approaches or methods, as applied
to legal research in a domestic or comparative context.
(1) Types of research
• explanatory (explaining the law, for instance by diverging historical back-
grounds in comparative research);
• empirical (identification of the valid law; determining the best legal means
for reaching a certain goal – the ‘best solution’ in comparative law);
• hermeneutic (interpretation, argumentation);
• exploring (looking for new, possibly fruitful paths in legal research);
• logical (coherence, structuring concepts, rules, principles, etc – eg the use
of the Hohfeldian analysis of the concept of right in domestic legal doc-
trine or for the purpose of comparing legal systems);
• instrumental (concept-building);
• evaluative (testing whether rules work in practice, or whether they are
in accordance with desirable moral, political, economical aims, or, in
comparative law, whether a certain harmonisation proposal could work,
taking into account other important divergences in the legal systems con-
cerned).
vi  Preface

(2) Use of supporting disciplines

• legal history;
• legal sociology;
• legal anthropology;
• legal psychology;
• law and biology; and
• law and economics.
(3) Levels of comparison
• conceptual framework of legal doctrine;
• principles;
• rules; and
• cases.
(4) Levels of research
• description (interpretation); and
• systematisation (theory building).
(5) Schemes of intelligibility1
• causal;
• functional;
• structural;
• hermeneutical;
• actional; and
• dialectical.
(6) Ideological perspectives
• individualistic versus communitarian;
• nationalistic versus international;
• positivist versus morally, politically oriented;
• monistic (order) versus multi-layered (pluralistic, disorder); and
• nature versus culture.
Doctrinal legal research ranges between straightforward descriptions of (new)
laws, with some incidental interpretative comments, on the one hand, and inno-
vative theory building (systematisation), on the other. The more ‘simple’ versions
of that research are necessary building blocks for the more sophisticated ones.
Inevitably, the more descriptive types of research will be, by far, more numer-
ous. Comparative law usually remains at the level of description, combined with
some comparison (but mostly at the ‘tourist’ level). In attempts of (European)
harmonisation, however, a clear level of systematisation (theory building) has
been established.
1
 See on this J-M Berthelot, L’intelligence du social (Paris, Presses Universitaires de France, 1990)
62–85 and, for an application to legal research, see G Samuel, ‘Taking Methods Seriously (Part One)’
(2007) 2 Journal of Comparative Law 94, 105ff.
 Preface  vii

All scientific research, including legal research, starts from assumptions. Most
of these assumptions are paradigmatic. This means that they are the generally
recognised assumptions (‘truths’) of legal scholarship within that legal system,
or the common assumptions of all the compared legal systems in comparative
research. They constitute the paradigmatic framework, which tends not to be
debated as such within the discipline itself. Apart from this, researchers may also
start from assumptions which are less obvious. In those cases, they have to be
made explicit, but not necessarily justified. In some of these cases, the outcome
of the research will only be useful to the extent that one accepts its underly-
ing assumptions. Alternatively, a given approach may prove to be more fruitful
than research, which (partly) starts from other assumptions. A typical example
is the recognised ‘legal sources’, which are not a matter of discussion within a
given legal system (legal scholarship). Sometimes new legal sources (eg ‘unwrit-
ten general principles of law’) or principles (eg priority of European law over
domestic law) are accepted as assumptions, as they seem to be more fruitful, eg
for keeping law more coherent. A study on such assumptions (and their limits)
in domestic legal doctrine and/or in comparative research is another possible
topic for research.
The questions and suggestions above were proposed to a number of scholars
when inviting them to lecture at a workshop organised, in October 2009, by
the Research Group for Methodology of Law and Legal Research at Tilburg
University. The current book contains the revised papers presented at that
workshop, together with two papers by members of the Tilburg Methodology
research group, which are partly a result of the discussions during the workshop
and a comment on one or more papers presented there. Other members of the
Tilburg Methodology research group who commented during the Conference
have been Jan Smits and Koen Van Aeken.
As an introduction to the contributions in this book, some conclusions of the
workshop are to be found hereafter.
Legal scholarship is torn between grasping as much as possible the expanding
reality of law and its context, on the one hand, and reducing this complex whole
to manageable proportions, on the other. In the latter case, a purely internal
analysis of the legal system involved, isolated from any societal context, is an
option, most notably visible in French legal doctrine.2 In such an approach, law is
largely cut loose from its context, and societal problems are exclusively worded
as ‘legal’ problems, that should be ‘solved’ without taking into account anything
that is not ‘law’. Moreover, law in this view means only, for instance, French state
law, or even more narrowly French official private law. Here, ‘legal reality’ is
confined to legislation and case law. There seems to be no other relevant real-
ity for lawyers. In this way, an artificial world is created, in which (sometimes
artificial) problems are worded and solved, without any necessary connection
to some societal reality. As law aims at ordering society, at influencing human

 See Horatia Muir-Watt’s chapter, ‘The Epistemological Function of “la Doctrine”’ (ch seven).
2
viii  Preface

behaviour,3 such an approach is felt to be largely insufficient by many scholars.

More specifically, the failure of doctrinal legal research to build, to structure, to
interpret and to apply the law in such a way that it fulfils its obvious function in
society, together with a complete lack of any methodology, has led an increas-
ing number of scholars to question its scientific status. In chapter four, Mathias
Siems argues that teaching and a low profile ‘legal doctrine’ may very well be
carried out by legal practitioners (as was actually the case in England until about
half a century ago). So, ‘a world without law professors’ would indeed be pos-
sible in practice.
As a reaction, many attempts have been made, from the nineteenth century
onwards, to broaden legal doctrine, or to conceive it differently. Adding a social
science dimension4 or a comparative dimension5 has proven fruitful. However,
the question then becomes one of demarcating the borders of legal science: is
there still some kind of ‘legal doctrine’ left, to which pockets of social sciences
have been added? Or will legal doctrine have to be merged with social sciences?
If so, which disciplines should be favoured: just traditional legal sociology, or
also law and economics and/or legal history and/or legal psychology and/or
legal anthropology, or even more exotic disciplines such as ‘behavioural eco-
nomics’6 and/or ‘evolutionary analysis in law’.7 How would such a broad inter-
disciplinary discipline look like? Which methods should it use? How can we
educate competent scholars who will be able to carry out such a broad research
programme or even parts of it?
The demarcation of ‘legal doctrine’ is not only a matter of fields to be covered,
it is also, and even in the first place, a question of the identity of the discipline.
Is it (mainly) descriptive? Or rather hermeneutical? Or perhaps normative? Or
should it be explanatory? This question is discussed at length in several papers.8
The main conclusion to be drawn is that several approaches fit with legal doc-
trine and that all those approaches can be defended to some extent, as long as
one keeps a pluralist approach. Under the heading of ‘legal doctrine’ or, if one
prefers, ‘legal science’, many types of research may be carried out: descriptive,
exploratory, explanatory, wording and/or testing hypotheses and/or theories, or
just supporting legal practice (and, in that sense, it becomes normative).
Each of those types of research will involve its own methods and each research
question will imply the use of the appropriate method(s) for that kind of
research.9 Maybe this variety of possible approaches and methods explains the
confusion in the terminology used. Although Jaap Hage (‘Truly normative legal

3
 See Julie De Coninck’s chapter, ‘Behavioural Economics and Legal Research’ (ch 14).
4
 See the chapters by Julie De Coninck (ch 14) and by Bart Du Laing (ch 13).
5
 See the chapters by John Bell (ch nine), by Geoffrey Samuel (ch 10) and by Jaakko Husa (ch 11),
and Maurice Adams’ comments (ch 12).
6
 See Julie De Coninck’s chapter 14.
7
 See Bart Du Laing’s chapter 13.
8
 See the chapters by Mark Van Hoecke (ch one), Jaap Hage (ch two), Anne Ruth Mackor
(ch three), Pauline Westerman (ch five), Jan Vranken (ch six) and Bert van Roermund (ch 15).
9
 See Jaap Hage’s chapter two.
 Preface  ix

science’) and Anne Ruth Mackor (‘Explanatory non-normative legal doctrine’)

use seemingly contradictory titles, they nevertheless appear to largely agree in
their view on legal doctrine. Roger Brownsword also points to this implicitly,
when asking himself ‘what am I doing as a legal scholar in contract law?’
Should we try to implement some ideal type of ‘legal science’, bearing the
risk of being cut loose not only from legal practice but from the large majority
of legal academics as well? Or should we rather, pragmatically, aim at adjusting
legal doctrine’s centuries-old research tradition? In the latter case, legal doc-
trine could develop as ‘law in context’, while still emphasising the internal per-
spective on law. Elements of social sciences could be used more systematically
for underpinning doctrinal research, instead of trying to realise the ambition
of developing an interdisciplinary super-science, which would integrate every-
thing there is to know about law. Legal doctrine should use those disciplines,
but not try to integrate them. Such integration raises problems of epistemology,
of methodology and of research skills. It would be very difficult, if not impos-
sible, to demarcate a common epistemological framework, within which com-
mon methodologies could be worked out for quite diverging research purposes.
Moreover, such methods should be so diverse that it would be extremely difficult
to combine all the research skills needed, even in a coherent research team. In
practice, the adequate research activities will rather be multi-layered, such as
legal doctrine using elements of behavioural economics which, in turn, uses ele-
ments of evolutionary analysis in law (see the chapters by De Coninck and by
Du Laing).
Four papers in this book have focused on comparative law (Samuel, Husa,
Bell and Adams), but with a clear connection to legal doctrine. Indeed, Geoffrey
Samuel argues that developing methods in comparative law could be a road to
developing the methodology of domestic legal doctrine. Bart Du Laing for his
part shows how the evolutionary analysis of law could be helpful in developing
the methodology of comparative law: varying adaptation of cultures to local
conditions as an element for developing a theory of ‘legal families’.
Finally, I would like to thank Caroline Laske for checking the English lan-
guage for part of the papers, and Dr Antal Szerletics for his help in preparing
the manuscript for publication, and Mustapha El Karouni for taking care of
indexing the book.
Mark Van Hoecke
11 January 2010
 Contents
Preface v
List of Contributors xv
1. Legal Doctrine: Which Method(s) for What Kind of Discipline? 1
Mark Van Hoecke
I. Historical Developments 1
II. What Kind of Discipline is Legal Doctrine? 4
III. Which Methodology for Legal Research? 11
IV. Conclusion 17
2. The Method of a Truly Normative Legal Science 19
Jaap Hage
I. Preliminaries 20
II. The Possibility of a Normative Science 28
III. The Method of a Truly Normative Legal Science 40
IV. Conclusion 43
3. Explanatory Non-Normative Legal Doctrine. Taking the Distinction
between Theoretical and Practical Reason Seriously 45
Anne Ruth Mackor
I. Introduction 45
II. Theoretical and Practical Reason 46
III. Explanatory Legal Doctrine 48
IV. Normative Legal Doctrine 58
V. Conclusion 69
4. A World without Law Professors 71
Mathias M Siems
I. Introduction 71
II. Legal Training and Education 72
III. Legal Research and Writing 78
IV. Analysis: What Next ? 85
5. Open or Autonomous? The Debate on Legal Methodology as a
Reflection of the Debate on Law 87
Pauline C Westerman
I. Introduction 87
II. The Problem of the Lacking Third 88
III. Legal System as Theoretical Framework 90
xii  Contents

IV. Legal Doctrine and Legal Science 94

V. The Quest for Ongoing Abstraction 95
VI. Empty Autonomy 97
VII. Revenge of Reality 101
VIII. The Need for an Empirical Orientation 105
IX. An Empirical Legal Doctrine? 108
6. Methodology of Legal Doctrinal Research: A Comment on
Westerman 111
Jan Vranken
I. Introduction 111
II. The Identity of Subject and Theoretical Framework:
Four Objections 114
III. Methodological Consequences 118
7. The Epistemological Function of ‘la Doctrine’ 123
Horatia Muir Watt
I. On the Choice, as a Topic, of the Epistemological Function
Played Out in French Legal Tradition by ‘la Doctrine’ 123
II. The Current Debates over the Existence and Future of
‘la Doctrine’ and why they are Significant 125
III. How the Emergence of ‘la Doctrine’ is Linked to the Decline
of the Code and the Massification of ‘la Jurisprudence’ 126
IV. How the Changing Relationship between Law and the other
Social Sciences is Relevant to the Rise of ‘la Doctrine’ and
to the Subsequent Shaping of Legal Knowledge 128
V. Why ‘la Doctrine’ is Threatened Today in its Interpretative
Function 129
VI. Why the Current Crisis may be for the Better – and may be
Good for Comparative Legal Research 131
8. Maps, Methodologies and Critiques: Confessions of a Contract
Lawyer 133
Roger Brownsword
I. Introduction 133
II. An Ideological Understanding of Adjudication and of
Contract Law 135
III. The Rationality of Contract Law 137
IV. The Underlying Ethic of Contract Law 139
V. The Fit between Doctrine and Business Organisation 143
VI. The Consent-Based Nature of Contractual Obligation 145
VII. The Mission of Protecting Reasonable Expectations 146
VIII. Contract and the Larger Regulatory Environment 148
IX. Conclusion 152
 Contents  xiii

9. Legal Research and the Distinctiveness of Comparative Law 155

John Bell
I. Introduction: Legal Research as a Normative Social Science 155
II. Hermeneutic Approach to Legal Research 158
III. The Institutional Character of Law 161
IV. The Interpretative Character of Law 164
V. Implications for Comparative Law 167
VI. Conclusion 175
10. Does One Need an Understanding of Methodology in Law Before
One Can Understand Methodology in Comparative Law? 177
Geoffrey Samuel
I. The Problem of Interdisciplinarity 178
II. Methodology and the Status of Comparative Law 182
III. Methodology and Epistemology in the Social Sciences 188
IV. Methodology and Epistemology in Law 192
V. Positivism (Causality) Versus Hermeneutics 194
VI. Positivism (Causality) Versus Dialectics 198
VII. Positivism versus Actionalism and Objectification 200
VIII. Paradigm Authoritarianism Versus Comparative Studies 205
11. Comparative Law, Legal Linguistics and Methodology of Legal Doctrine 209
Jaakko Husa
I. Introduction 209
II. Background of Functionalism 212
III. From Rabel to Zweigert and Kötz 215
IV. Legal Languages and Functionalism 223
V. Conclusion 227
12. Doing What Doesn’t Come Naturally. On the Distinctiveness of
Comparative Law 229
Maurice Adams
I. ‘Doing’ Law is Immutably Comparative 229
II. . . . ‘And Yet it Moves!’ 230
III. Explanatory Comparative Law and Interdisciplinarity 235
IV. To Conclude 239
13. Promises and Pitfalls of Interdisciplinary Legal Research: The Case
of Evolutionary Analysis in Law 241
Bart Du Laing
I. Introduction 241
II. Contemporary Evolutionary Approaches to Human Behaviour
and Evolutionary Analysis in Law 244
III. Taxonomising Evolutionary Analyses in Law: Three Questions 248
xiv  Contents

14. Behavioural Economics and Legal Research 257

Julie De Coninck
I. Introduction 257
II. Behavioural Economics 258
III. Behavioural Law and Economics 262
IV. Closing Remarks 275
15. Theory and Object in Law: the Case for Legal Scholarship as
Indirect Speech 277
Bert Van Roermund
I. Legal Scholarship Pre-Determined by the Law it Investigates? 278
II. Theoretical Language as Meta-Language? 282
III. Some Implications 284

Index 287
 List of Contributors
Maurice ADAMS is Professor of Law at Tilburg University and at Antwerp
University.
[email protected]

John BELL is Professor of Law at the University of Cambridge.

[email protected]

Roger BROWNSWORD is Professor of Law and Director of TELOS at King’s

College London, and Honorary Professor in Law at the University of Sheffield.
[email protected]

Julie DE CONINCK is Postdoctoral Fellow of the Research Foundation –

Flanders (FWO) at the Catholic University of Leuven (KU Leuven), Lecturer
at the University of Antwerp, Substitute Lecturer in Comparative Law at KU
Leuven (Research Master in Law in cooperation with Tilburg University).
[email protected]

Bart DU LAING is Postdoctoral Fellow of the Research Foundation – Flanders

(FWO) at the University of Ghent, Department of Legal Theory and Legal
History.
[email protected]

Jaap HAGE is Professor of Jurisprudence at the University of Maastricht and

Professor of Law at the University of Hasselt.
[email protected]

Jaakko HUSA is Professor of Legal Culture and Legal Linguistics at the University
of Lapland. He is also an Adjunct Professor of Comparative Legal Science at
the University of Helsinki and a Member of the International Academy of
Comparative Law.
[email protected]

Anne Ruth MACKOR is Professor of Professional Ethics at the University of

Groningen.
[email protected]
xvi  List of Contributors

Horatia MUIR-WATT is Professor of Law at the Law School, Sciences-po, Paris.

[email protected]

Geoffrey SAMUEL is Professor of Law at Kent Law School, University of Kent,

at Canterbury.
[email protected]

Mathias SIEMS is Professor of Law at the University of East Anglia in Norwich,

Research Associate at the Centre for Business Research of the University of
Cambridge, and Invited Fellow at the Tilburg Institute of Comparative and
Transnational Law.
[email protected]

Mark VAN HOECKE is Research Professor for Legal Theory and Comparative
Law at the University of Ghent and Research Professor for the Methodology
of Comparative Law at the University of Tilburg. He is also co-director of the
European Academy of Legal Theory.
[email protected] and [email protected]

Bert VAN ROERMUND is Professor of Philosophy and former Chairholder in

the Philosophy of Law at Tilburg University.
[email protected]

Jan VRANKEN is Professor of Methodology of Private Law at Tilburg University.

[email protected]

Pauline WESTERMAN is Professor Legal Philosophy at the University of

Groningen, as well as member of staff of the Academy for Legislation in the
Hague.
[email protected]
 1
Legal Doctrine: Which Method(s) for
What Kind of Discipline?
Mark Van Hoecke

I. Historical Developments

R oman legal doctrine developed since the second century before

Christ, and reached a very high level as from the third century after Christ.
Its rediscovery and renewed study in Bologna in the eleventh century was the
start for the creation of universities. During the whole of the Middle-Ages, legal
doctrine was highly thought of and considered as a ‘scientific discipline’, as in
those times ‘authoritative interpretation’, not ‘empirical research’, was the main
criterion for the scientific status of a discipline. Slowly as from the seventeenth
century, but mainly as from the nineteenth century, this changed dramatically.
The success of the positive sciences altered the conception of ‘science’ in western
societies. Physics became the model. Hence, a combination of empirical data,
mathematics, testing of hypotheses, developing theories with a general validity
and without geographical limitations, became the ideal for any ‘scholarly disci-
pline’. However, where in legal scholarship do we study ‘empirical data’, handle
them with mathematical models, check ‘hypotheses’ or construe ‘theories’? For
sure, law and legal doctrine clearly have their geographical limitations, so that
there is no claim to ‘general validity’ outside the geographical borders of the
legal system concerned.
As from the mid-nineteenth century, those conclusions have repeatedly led to
the statement that ‘legal doctrine’ misses basic characteristics in order to be con-
sidered a ‘legal science’, whereas until then legal doctrine had largely been seen
to be the model ‘science’.1 More recently, it is particularly the research assessment
1
In 1859, the American legal scholar David Dudley Finn wrote about legal doctrine: ‘Compare
this science with any of the other sciences; with those which are esteemed the greatest in extent,
and the most exalted in subject. Take even astronomy, that noble science which weighs the sun and
the planets, measures their distances, traces their orbits, and penetrates the secrets of that great law
which governs their motions. Sublime as this science is, it is but the science of inanimate matter,
and a few natural laws; while the science which is the subject of our discourse governs the action
of human beings, intelligent and immortal, penetrates into the secrets of their souls, subdues their
wills, and adapts itself to the endless variety of their wants, motives and conditions.’ See DD Finn
2  Mark Van Hoecke

procedures and the repartition of public money among ‘scientists’ that have put
this topic into the centre of the scholarly debate. Lawyers have reacted in different
ways to this pressure. A large majority of them have pointed to the practical util-
ity, and even necessity, of their publications for legal practice and emphasised the
importance of law in society, or they have benignly ignored that criticism. Others
have accepted the criticism, taking over the narrow empiricist view on ‘science’ and
tried to make legal scholarship fit that model.2 In the nineteenth century, this kind
of reaction gave birth to ‘legal theory’ in the sense of a ‘positive science of law’,
a kind of empirical ‘natural law’, a search for legal concepts, legal rules and legal
principles that the whole of mankind would share.3 There has been some research
in legal anthropology (Maine, Post),4 but largely this remained at the stage of
a research programme, which has been forgotten as from the First World War.
Somewhat similar to this reaction, we have seen, as from the end of the nineteenth
century, and mainly in the course of the twentieth century, the birth and develop-
ment of other social sciences focusing on law: legal sociology, legal psychology,
law and economics. All of those disciplines offer empirical research and theory
building in legal matters. However, they never aimed at replacing legal doctrine,
but just wanted to supply legal scholars, legal practitioners and policymakers with
useful information on legal reality. Unfortunately, their impact has remained quite
limited. So, today, there is a somewhat schizophrenic situation in which one disci-
pline, legal doctrine, is basically studying law as a normative system, limiting its
‘empirical data’ to legal texts and court decisions, whereas other disciplines study
legal reality, law as it is. The outcomes of these two strands of disciplines are not

‘Magnitude and Importance of Legal Science’ (1859) in SB Presser and JS Zainaldin (eds), Law and
Jurisprudence in American History, 3rd edn (St Paul, Minnesota, West Publishing C°, 1995) 712.
From a different perspective, Ivanhoe Tebaldeschi could, in 1979, argue that legal doctrine is the
most complete discipline, and, hence, the model science, as it combines deductive reasoning with
inductive reasoning and value thinking: I Tebaldeschi, Rechtswissenschaft als Modellwissenschaft
(Vienna, Springer Verlag, 1979) 156.
2
‘Welcher Abstand zeigt sich hier für die Jurisprudenz gegen die Naturwissenschaften’ in J von
Kirchmann, Die Werthlosigkeit der Jurisprudenz als Wissenschaft (Berlin, Julius Springer, 1848) 14;
S van Houten, Das Causalitätsgesetz in der Socialwissenschaft (Haarlem, HD Tjeenk Willink and
Leipzig, FA Brockhaus, 1888), arguing in favour of the use of the methods of physics in legal scholar-
ship, mainly by focusing on causal relations: ‘Der Grundstein der Socialwissenschaft, wie überhaupt
aller Wissenschaft, ist die volle, unbedingte Anerkennung des Causalitätsgesetzes’ (p 5). See also:
AV Lundstedt, Die Unwissenschaftlichkeit der Rechtswissenschaft (Berlin-Grunewald, W Rothschild,
1932) vol 1; T Mulder, Ik beschuldig de rechtsgeleerde faculteit van onwetenschappelijkheid (Leiden,
1937); G de Geest, ‘Hoe maken we van de rechtswetenschap een volwaardige wetenschap?’ (2004)
Nederlands Juristenblad 58–66.
3
 AH Post, Einleitung in eine Naturwissenschaft des Rechts (Oldenburg, Verlag der Schulzchen
Buchhandlung, 1872). For a short introduction to Post and to his legal anthropological research, see:
A Lyall, ‘Early German Legal Anthropology: Albert Hermann Post and His Questionnaire (2008) 52
Journal of African Law 114–24 (with the questionnaire as an appendix on pages 124–38).
4
 GA Wilken, De vrucht van de beoefening der ethnologie voor de vergelijkende rechtswetensc-
hap, inaugural lecture Rijksuniversiteit Leiden (Leiden, EJ Brill, 1885); SR Steinmetz, Ethnologische
Studien zur ersten Entwicklung der Strafe, 2nd edn, 2 vols (Groningen, P Noordhoff, 1928) (1st
edn, Leiden 1894); SR Steinmetz, Rechtsverhältnisse von eingeborenen Völkern in Afrika und
Ozeanien. Beantwortungen des Fragebogens der Internationalen Vereinigung für vergleichende
Rechtswissenschaft und Volkswirtschaftslehre zu Berlin (Berlin, Julius Springer, 1903).
 Legal Doctrine: Which Method(s)?  3

brought together in any systematic way, nor are they combined or integrated at the
level of legal scholarship.
Today, in different countries, research assessment and the financial means con-
nected with it have made the empiricist view on science even more influential.
This has been to such an extent that it has made lawyers and policymakers in
universities think that legal doctrine can only become ‘scientific’ if it turns into
an empirical social science (de Geest). In other words, the aim is to put an end
to a tradition of more than two millennia and to imitate the empirical sciences
that have a different goal. Instead of concluding that the monist view on sci-
ence, based on physics, is wrong, ‘falsified’ in their terminology, because it does
not fit with disciplines such as legal doctrine, some have concluded that legal
doctrine is (completely) wrong, and has always been so. This is a dangerous
development, which, starting from false assumptions (unity and similarity of all
scientific disciplines) is jeopardising the future of human sciences in general and
legal doctrine in particular.
Of course, the criticism of legal doctrine is partly founded: it is often too
descriptive, too autopoietic, without taking the context of the law sufficiently
into account; it lacks a clear methodology and the methods of legal doctrine
seem to be identical to those of legal practice; it is too parochial, limited to very
small scientific communities, because of specialisation and geographical limits;
there is not much difference between publications of legal practitioners and of
legal scholars. All this may be correct, but as such it does not disqualify legal
doctrine as a discipline in its own right, with its own, appropriate, methods.
In this chapter, I will define legal doctrine as an ‘empirical-hermeneutical dis-
cipline’. Indeed, it has empirical aspects, which make it perfectly comparable
with all empirical disciplines, but the core business of legal doctrine is interpre-
tation, which it has also in common with some other disciplines (theology, study
of literature).
How can we describe the methodology of legal doctrine in a terminology
which is largely used in the scientific community, without narrowing it in such a
way that we lose essential characteristics of this discipline?
Legal doctrine has, in the course of history, been practised and conceived in
varying ways, emphasising, and sometimes overemphasising, diverging charac-
teristics of this discipline. Below, we will discuss the different angles from which
legal doctrine has been presented and the extent to which they give a true picture
of this discipline. It will be followed by an analysis of the methodology of legal
research in terms of hypotheses and theory building.
4  Mark Van Hoecke

II. What Kind of Discipline is Legal Doctrine?

A. A Hermeneutic Discipline

It can hardly be denied that legal scholars are often interpreting texts and argu-
ing about a choice among diverging interpretations. In this way, legal doctrine is
a hermeneutic discipline, in the same way as is, for example, the study of litera-
ture, or to a somewhat lesser extent, history. Interpreting texts has been the core
business of legal doctrine since it started in the Roman Empire.5
In a hermeneutic discipline, texts and documents are the main research object
and their interpretation, according to standard methods, is the main activity of
the researcher. This is clearly the case with legal doctrine.
Often legal scholarship has been presented as another type of ‘science’, in
which the hermeneutic dimension is minimised, or at least made less important.
This was done, for instance, when scholars tried to distinguish legal scholarship
from legal practice, or to separate the description of the law more clearly from
its evaluation, or when legal scholarship was modelled along the lines of the
methodology of other disciplines and more specifically of the positive sciences.

B. An Argumentative Discipline

Close to the conception of legal doctrine as a hermeneutic discipline is the con-

ception of an argumentative discipline. Here, it is the argumentation to support
some legal interpretation or solution that is emphasised, rather than the inter-
pretation as such.6 The argumentative view has the advantage of putting things
into a broader perspective. It allows us to take a step back from the interpreted
text or any other document. A concrete legal question can be answered, or a
case solved, on the basis of generally accepted, or at least acceptable, views.

5
‘L’oeuvre doctrinale, dans la tradition historique française et, plus largement, européenne, est
au premier chef d’interprétation de « lois » écrites . . . Et à cela ne s’est pas borné son rôle. Face à
des sources diverses et hétérogènes, elle s’est trouvé aussi pour fonction d’unifier, de créer un ordre
juridique cohérent et même, à partir du XVIème siècle, systématique, préparant ainsi les voies de
la codification.’ See J-L Thireau, ‘La doctrine civiliste avant le Code civil’ in Y Poirmeur et al, La
doctrine juridique (Paris, Presses Universitaires de France, 1993) 13–51, 16f.
6
 Argumentation theory has always been at the core of jurisprudential writings. That is why
the conception of legal scholarship as an argumentative discipline often acts as an implicit back-
ground (see eg Ch Perelman, Logique juridique. Nouvelle rhétorique (Paris, Dalloz, 1976); R Alexy,
A Theory of Legal Argumentation, translated by R Adler and N MacCormick (Oxford, Clarendon
Press, 1989); R Dworkin, Law’s Empire (London, Fontana Press, 1986) 1314, where this is said rather
explicitly). Sometimes this conception of legal doctrine as an argumentative discipline is argued for
explicitly: J Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’ in
F Grünfeld et al and F Coomans (eds), Methods of Human Rights Research (Antwerp, Intersentia
2009); C Smith et al, ‘Criteria voor goed rechtswetenschappelijk onderzoek’ (2008) Nederlands
Juristenblad 685–90 at 690, where, following Ronald Dworkin, the work of the legal scholar and of
the judge are rather called an ‘argumentative practice’ than a ‘normative discipline’.
 Legal Doctrine: Which Method(s)?  5

In traditional argumentation theory they are called ‘topoi’7. In many cases the
argumentation will support some interpretation of one or more texts, but in
other cases the argumentation may only loosely be related to such texts, eg when
based on unwritten legal principles, or when filling gaps in the law, or when a
text is simply put aside in favour of an interest or value that is considered to be
more important.
From the Middle-Ages until the seventeenth century legal doctrine has devel-
oped as an argumentative discipline, which determined what kind of arguments
were acceptable in which cases, with whole catalogues of arguments.8 Actually,
interpretation and argumentation cannot be separated from each other, both in
legal doctrine and in legal practice. Each text interpretation needs arguments
when diverging interpretations could reasonably be sustained, and a legal argu-
mentation will almost always be based on interpreted texts. So, legal doctrine
and legal practice are both hermeneutic and argumentative, but interpretation
and argumentation appear to be roughly two sides of the same activity, in which
interpretation is the goal and argumentation the means for sustaining that inter-
pretation. Hence, if one has to choose it would seem more appropriate to label
legal doctrine a ‘hermeneutic discipline’ rather than an argumentative one.

C. An Empirical Discipline

As already mentioned above, since the nineteenth century and under the influ-
ence of the success of the positive sciences, attempts have been made to develop
legal scholarship as an empirical discipline.9 This has been quite explicitly
worded by Alf Ross:
The interpretation of the doctrinal study of law presented in this book rests upon the
postulate that the principle of verification must apply also to this field of cognition
– that the doctrinal study of law must be recognised as an empirical social science.10
According to Ross, this empirical verification takes place by checking statements
in legal doctrine against judicial practice: ‘Our interpretation, based on the pre-
ceding analysis, is that the real content of doctrinal propositions refers to the
actions of the courts under certain conditions.’11
7
 T Viehweg, Topik und Jurisprudenz: ein Beitrag zur Rechtswissenschaftlichen Grundlagenforschung,
5th ed (München, Beck Vergag 1974); G Struck, Topische Jurisprudenz, (Frankfurt, Athenäum Verlag
1971).
8
 GCCJ van den Bergh, Geleerd recht. Een geschiedenis van de Europese rechtswetenschap in
vogelvlucht, 2nd edn (Deventer, Kluwer, 1985) 6.
9
 And not only legal scholarship: ‘Occasionally, scholars in the “lower” disciplines aspiring to
the status of natural scientists have attempted to import an empirical or “scientific” method into
their work. In the nineteenth century, for example, such efforts redefined many of the social sci-
ence disciplines and gave them many of their distinguishing characteristics today.’ See DW Vick,
‘Interdisciplinarity and the Discipline of Law’ (2004) 31 Journal of Law and Society 163–93, 172.
10
 A Ross, On Law and Justice (London, Stevens & Sons, 1958) 40. This view is explicitly rejected
in G Samuel, ‘Is Law Really a Social Science? A View from Comparative Law’ (2008) 67 Cambridge
Law Journal 288–321, among others at 319.
11
ibid.
6  Mark Van Hoecke

This view is typical for the realist movements. Ross was the last important
representative of Scandinavian realism, but here Ross comes quite close to
American realism: ‘The prophecies of what courts will do in fact, and nothing
more pretentious, are what I mean by the law’, in the well known wording by
Oliver Wendell Holmes.12 Ross’ conception of legal doctrine as an empirical
discipline only fits in such a ‘realistic’ approach. Today, this realistic movement
is not very popular in Europe, not even in Scandinavia. Hence, this conception
of legal doctrine cannot be considered to be a workable model as such.
Others have argued that the phenomena which are observed and studied by
legal scholars are in fact their empirical data and amount to ‘legal rules’.13 It is,
however, to be questioned whether ‘legal rules’ can be observed empirically. If
not, where and how do we find them? For Gerrit De Geest they are found through
the reading of published judicial decisions. This view suggests that those rules
only ‘exist’ to the extent that they have been applied by judges. In this way, De
Geest is following Alf Ross and American realism. However, De Geest partly
contradicts himself when defining the ‘empirical truth’ in interpreting the law
as ‘what the legislator or judge really meant’.14 As methods used in this context,
he mentions:
(a) text analysis;
(b) logic (eg syllogism);
(c) field research (including interviews);
(d) statistics; and
(e) methods of historical research.15
It is interesting to note that no psychological methods are mentioned as a pos-
sible means to discover what a judge or legislator ‘really meant’. Without fur-
ther discussing De Geest’s position here, it is obvious that his label ‘empirical
research’ covers a large variety of elements, which show (also according to De
Geest) that legal doctrine is partly a hermeneutic discipline (text analysis), an
axiomatic discipline (logic) and a historical discipline. Indeed, legal doctrine
cannot be reduced to one single type of discipline, but is a combination of sev-
eral of them. Of course, some may be considered to be more important, or
decisive, or typical than others, but, unlike some other disciplines, such as math-
ematics, it is not one-dimensional.
In Hans Albert’s view, the object of an empirical legal doctrine is broader than
just legal rules. It also includes the influence of those rules on the members of
the society in question.16 This means a combination of traditional legal doctrine
with legal sociology. There are good reasons for such an approach, but putting
12
 OW Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457–78, 461.
13
 G De Geest, ‘Hoe maken we van de rechtswetenschap een volwaardige wetenschap?’ (2004)
Nederlands Juristenblad 58–66, 59.
14
ibid 59.
15
ibid 61.
16
H Albert, ‘Kennis en Recht’ in FD Heyt (ed), Rationaliteit in wetenschap en samenleving
(Alphen aan de Rijn, Samsom, 1976) 183.
 Legal Doctrine: Which Method(s)?  7

it into practice seems to be very difficult in most cases. Moreover, one may also
have to include other disciplines, such as economics, psychology and the like.
However, including all this in legal doctrine raises even more questions as to its
feasibility.
For the Historical School in nineteenth century Germany17 and a somewhat
comparable movement in the United States in the same period,18 historical ele-
ments constituted the most important empirical data:
Man is to be studied in every period of his social existence, from the savage to the civi-
lized state, in order to perceive the great truth, that in every condition of freedom, of
intelligence, of commerce, and of wealth, his habits, his virtues, his vices, the objects
of his desires, and hence the laws necessary for his government, are essentially the
same.19

This approach clearly represents a belief in a kind of ‘natural law’ which could
be retrieved empirically. This idea used to be quite popular in Europe and in the
United States in the nineteenth century, but seems to have almost completely
disappeared today.
For others, the object of the empirical research is sociological, economical or
socio-psychological data, or more generally ‘human behaviour’.20
Empirical research is most notably useful in disciplines such as physics, where
a reality is studied which exists independently of this discipline. In disciplines
such as mathematics or theology, empirical research does not seem to be quite
relevant. Mathematical models and theological views create their own reality,
which, by definition, cannot be checked empirically. The same is largely true for
legal doctrine as well. Whether a certain law ‘exists’ may be checked ‘empiri-
cally’, but what legal doctrine is mainly about is the interpretation of that law
or its balancing with other laws or legal principles.
Interpretations are underpinned with arguments and these arguments may
partly refer to an ‘objective’ reality. To this extent the correctness of arguments
may be checked empirically. However, most arguments in legal reasoning are not
‘true’ or ‘false’ but more or less convincing. They do not qualify for an empirical
verification.

17
 See A Brockmöller, Die Entstehung der Rechtstheorie im 19. Jahrhundert in Deutschland
(Baden-Baden, Nomos Verlag, 1997) especially 64 ff (Hugo) and 83 ff (Savigny).
18
 See H Schweber, ‘Law and the Natural Sciences in Nineteenth-Century American Universities’ in
SS Silbey (ed), Law and Science, The International Library of Essays in Law and Society (Aldershot,
Ashgate, 2008) 3–23.
19
 S Greenleaf, A Discourse Pronounced at the Inauguration of the Author as Royall Professor of
Law in Harvard University (Cambridge, Massachusetts, James Munroe, 1834) 14.
20
 MA Loth, ‘Regel-geleid gedrag; over het object van empirische rechtswetenschap’ (1983) 3
Rechtsfilosofie & Rechtstheorie. Netherlands Journal for Legal Philosophy and Jurisprudence 213–
28, 213.
8  Mark Van Hoecke

D. An Explanatory Discipline

A fourth conception of legal doctrine considers it to be an explanatory disci-

pline. According to this view, legal doctrine explains why a rule is a valid legal
rule in a given society. This explanation may be historical, sociological, psycho-
logical, economical and the like, but it may also be based on an internal logic.
In this approach, the existence of a rule will be ‘explained’ by the existence of
a higher norm, from which that rule is derived,21 or the existence of underlying
values or principles, or of a larger network of legal rules and principles.
The first kind of explanation reduces legal doctrine to one or more of the
social sciences involved. The second, internal, ‘explanation’ largely reduces this
concept to something which is not even a main part of legal scholarly activity,
and which does not really fit into our common understanding of what it means
to ‘explain’ something. As Aleksander Peczenik wrote, we are rather faced with
a veiled strategy in which presenting legal doctrine as an ‘explanatory’ discipline
would allow us to consider it an ‘objective science’, and to conceal the legitima-
tion of a rule behind a façade of ‘explanation’.22 In fact, nothing is ‘explained’
here, rather values or principles are postulated, or some interpretation of a
higher rule is posited, which should legitimate the rule one derives from them.
Another view considers it the aim of legal scholarship to explain rule-­
determined behaviour,23 in interaction with other actors.24 However, this is
rather the aim of legal sociology than of legal doctrine. Legal scholarship, in
this approach, becomes a social technology.25
Explaining the whys and wherefores of legal concepts, rules, principles and
constructions is indeed not an unimportant part of legal doctrinal research as
it is necessary for interpreting them correctly. However, explanation is not the
main content of research in legal doctrine, except maybe during some time fol-
lowing large-scale codifications. The hermeneutical and explanatory research
activities are closely linked to each other, but explanation is at the service of
interpretation, not the other way around. Hence, legal doctrine is not mainly an
explanatory discipline.

21
 M Van Quickenborne, ‘Rechtsstudie als wetenschap’ in Actori incumbit probatio (Antwerp,
Kluwer 1975) 223.
22
 A Peczenik, Scientia Juris. Legal Doctrine as Knowledge of Law and as a Source of Law in
E Pattaro (ed), A Treatise of Legal Philosophy and General Jurisprudence (Dordrecht, Springer
2005) vol 4, 4.
23
H Albert, Traktat über rationale Praxis (Tübingen, JCB Mohr, 1978) 79–80: ‘Wer den Sinn des
Gesetzes bestimmen möchte, muss sich eo ipso Gedanken über die mit ihm intendierten Wirkungen
und die damit angestrebte Ordnung machen. Solche Überlegungen machen die Verwendung nomolo-
gischen Wissens erforderlich, denn die Steuerungswirkungen von Gesetzen und Auslegungen sind
nicht einfach logische Konsequenzen der betreffenden Aussagen.’
24
 MA Loth, ‘Regel-geleid gedrag; over het object van empirische rechtswetenschap’ (1983) 3
Rechtsfilosofie & Rechtstheorie. Netherlands Journal for Legal Philosophy and Jurisprudence 221.
25
ibid 215.
 Legal Doctrine: Which Method(s)?  9

E. An Axiomatic Discipline

Legal doctrine has sometimes been seen in continental Europe as an axiomatic

discipline, like mathematics. Gustav Hugo, one of the founders of the Historical
School in nineteenth century Germany, worded it as follows:
Jurisprudenz und Mathematik grenzen auch näher an einander als mancher, der weder
Jurist noch Mathematiker ist, weiss. . . . Auch die Jurisprudenz beruht in der Theorie
auf einer Art von Construction und auch die Jurisprudenz ist in der Theorie eine exacte
Wissenschaft.26
For Hugo, legal doctrine was an applied exact science, with also some empirical
dimension. This approach to legal doctrine culminated in Germany at the end
of the nineteenth century in the ‘Begriffsjurisprudenz’ movement, which saw law
as an algebra of legal concepts.
In the second half of the twentieth century, this approach to legal doctrine had
a revival, which, however, did not last long. Some optimists hoped to encompass
the whole of law in a formal logic and/or in computer programmes which, up to
now, did not prove to be very successful.

F. A Logical Discipline

The view on legal doctrine as a logical discipline is a somewhat more moderate

version of the pure axiomatic model:
In der Rechtsordnung spielt das Logische nur eine sekundäre Rolle neben den alo-
gischen Momenten. In der Rechtsanwendung spielen diese alogische Momente die
sekundäre Rolle neben dem Logischen. In der Rechtswissenschaft endlich herrschen
ausschliesslich die logische Funktionen: die Jurisprudenz dient mit logischen Mitteln
dem logischen Zwecke der Systematisierung. 27
So, even if law is not always logical in practice, for Julius Moór legal doctrine
should be exclusively logical in view of systematising the law. Most scholars with
other views on legal doctrine as a discipline have also emphasised the impor-
tance of logic in legal reasoning and in the scientific structuring of legal data.
However, (the contents of) legal data are too indefinite to enable us to conceive
legal doctrine as a purely logical discipline. Too much depends on the interpreta-
tion of legal principles, rules and concepts. Hence, even if logic is quite impor-
tant in law and in legal research, interpretation is even more important. Anyway,
logical coherence is a characteristic of scientific research in any discipline and
not just typical for the legal sciences.
26
 G Hugo, Lehrbuch eines civilistischen Cursus, Philosophische Encyclopedie für Juristen
(Berlin, 1799) vol 5, 10 §8.
27
J Moór, ‘Das Logische im Recht‘ (1927–28) Revue Internationale de la Théorie du Droit
/ Internationale Zeitschrift für Theorie des Rechts, 157–203 at 203. See also, be it less explicitly:
R Kranenburg, De Grondslagen der Rechtswetenschap. Juridische kennisleer en methodologie, 5th
edn (Haarlem, HD Tjeenk Willink, 1955) 30f.
10  Mark Van Hoecke

G. A Normative Discipline

Legal doctrine is often called a normative discipline, which is not only describ-
ing and systematising norms (a discipline about norms), but also and to a large
extent, a discipline which takes normative positions and makes choices among
values and interests. This, indeed, is inevitable when, for example, some inter-
pretation is preferred over alternative ones. Ultimately this choice will be deter-
mined by giving more weight to some values or interests than to competing ones.
For some, legal doctrine is primarily looking for ‘better law’.28 This refers to
elements which are external to law and to legal doctrine: philosophy, morals,
history, sociology, economy and politics. Hence, looking for ‘better law’ may
require empirical research, especially when ‘better’ means better from an eco-
nomic or sociological point of view, or when reference is made to the ‘prevailing
moral (or political) convictions’.
This normative approach bears the risk of subjectivity, when a legal scholar
is trying to present very personal views and convictions as ‘the law’. It should
be obvious that such a normative approach can only have a scientific status if it
looks for an intersubjective consensus, for the prevailing opinion among legal
scholars or among lawyers in general (especially judges and academics who
made their views public through judicial decisions or other types of publica-
tions). It can be checked empirically as to whether an opinion is (largely) prevail-
ing among those professionals or in society.
For Hans Kelsen, legal doctrine as a normative discipline is a matter of inter-
nal logic, not linked to some external criterion for making the law ‘better’. He
considered the distinction between ‘descriptive disciplines’ and ‘normative dis-
ciplines’ to be the basic division among sciences. Descriptive disciplines, such as
the exact sciences, look for causal relations, whereas normative sciences, such
as legal doctrine and ethics, use ‘imputation’ as a method.29 ‘Imputation’ means
determining the existence of some obligation (in its broadest sense) and/or a
breach of it. This obligation will be derived, through an internal legal logic,
from elements of the legal system. Kelsen strongly underestimated the impor-
tance of interpretation in law and the influence of non-legal elements through
such interpretation. The main reason for this unrealistic view is Kelsen’s theory
of ‘meaning’, which he limits to the psychological sender-meaning, that is to
the intention of those having issued a rule or a command.30 By this assumption

28
JAI Wendt, De methode der rechtswetenschap vanuit kritisch-rationeel perspectief (Zutphen,
Paris, 2008) 141.
29
H Kelsen, General Theory of Norms (Oxford, Clarendon Press, 1991) 22–25.
30
‘Someone who issues a command intends something. He expects the other person to under-
stand this something. By his command he intends that the other person is to behave in a certain way.
That is the meaning of his act or will.’ (ibid 32). Hence, according to Kelsen, ‘it is more correct to
say “a norm is a meaning” than “a norm has a meaning”’ (ibid 26). This view is completely unten-
able. See my comments on this issue in M Van Hoecke, Law as Communication (Oxford, Hart
Publishing, 2002) 128–30.
 Legal Doctrine: Which Method(s)?  11

he can minimise the hermeneutic element in legal research and emphasise the
normative characteristic of law.

III. Which Methodology for Legal Research?

It will be obvious that varying conceptions of legal doctrine imply quite differ-
ent methodologies. If we accept that legal doctrine is mainly a hermeneutical
discipline, which fits best in any case with the way legal doctrine has been con-
ceived most of the time in most legal systems, we may describe its methodology
as follows.
Legal scholars collect empirical data (statutes, cases, etc), word hypotheses on
their meaning and scope, which they test, using the classic canons of interpreta-
tion. In a next stage, they build theories (eg the direct binding force of European
Union (EU) law), which they test and from which they derive new hypotheses
(eg on the validity, meaning or scope of a domestic rule which conflicts with
EU law). Described in this way, doctrinal legal scholarship fits perfectly with
the methodology of other disciplines: ‘Scientific inquiry, seen in a very broad
perspective, may be said to present two main aspects. One is the ascertaining
and discovery of facts, the other the construction of hypotheses and theories.’31

A. Empirical Data Used in Legal Doctrine

In a first stage, legal doctrine collects all relevant material, notably:

(a) normative sources, such as statutory texts, treaties, general principles of law,
customary law, binding precedents, and the like; and
(b) authoritative sources, such as case law, if they are not binding precedents,
and scholarly legal writings.
The last category has a somewhat ambivalent position, as it is not external to
legal doctrine, even if it will generally be external to the individual researcher.
Here, we are faced with a mixture of scholarly legal writings as an authoritative
source of law, on the one hand, and legal doctrine as the scientific community
which discusses, accepts or rejects positions taken by colleagues and the theories
they propose on the other.
In general, the discussion about legal sources will be one of relevance.
If, for instance, a statutory text has been declared unconstitutional by the
Constitutional Court, it will become an irrelevant part of the empirical data on
which the legal researcher will build his or her hypotheses or theories. A binding
precedent will be more relevant than a non binding one. A (non binding) deci-
sion of the Supreme Court will be more relevant than one taken by a lower court.

 GH von Wright, Explanation and Understanding (Ithaca, Cornell University Press, 1971) 1.
31
12  Mark Van Hoecke

A publication by a law professor who is generally considered to be an authority

in his or her field will have more weight than the first publication of a young
academic. A well underpinned argumentation will be more relevant than just
positing the same position, without further argument.
For normative sources, the relevance will be a matter of validity in the first
instance: is this rule currently part of our legal system or not? This is a binary
choice between validity and non-validity.
At the level of interpretation, however, it may become a matter of degree:
when weighing and balancing the normative force of equally valid rules and
principles, one of them may be considered to be more relevant than the other
one, even if this higher relevance may be limited to the very case in question.
The relevance of authoritative sources will always be a matter of degree. Even
the most famous professor may have a weak moment and the very first publica-
tion of a promising young scholar may be brilliant. Sometimes decisions of a
supreme court are widely rejected by lower judges and by legal doctrine and,
hence, lose a large part of their relevance. Decisions taken, for instance by the
American Supreme Court, with a majority of five to four, will be less authorita-
tive than unanimous decisions.
Anyway, all those sources have at least some relevance and the researcher will
have to take them into account in her or his research.
A delicate point is the representativeness of the published case law. Actual
publication of judicial decisions represents only small percentage of all decisions
made (in Belgium one or two per cent). However, a higher percentage has been
made accessible through the internet. It is well known that anecdotic motives
sometimes play a stronger role than scientific ones when deciding whether to
publish.32 Controversial decisions will be published more easily than those which
simply confirm earlier ones. Even the supreme courts’ decisions are not all pub-
lished. Adequate electronic storage of all judicial decisions and appropriate
computer programmes and databases should allow a systematic study of all
judicial decisions taken in some field or on some legal problem, including sta-
tistical analyses. However, up to now this is still not operational in many legal
systems.

B. Wording and Checking Research Hypotheses

Every type of scientific research starts from a problem, from some question or
series of questions. Sometimes a simple observation of facts leads rather spon-
taneously to a research question. For example, when there are two conflicting
views within case law and legal doctrine, or between higher and lower judges, or
between case law on the one hand and legal doctrine on the other, the researcher

32
For example, a claim to obtaining the right to visit one’s dog after divorce, when the animal
stayed with the ex-partner.
 Legal Doctrine: Which Method(s)?  13

will automatically look for an explanation for these diverging positions and look
for arguments which would allow a decisive choice in favour of one of them or
that would rather lead to a more convincing third alternative.
In other cases, the research question will be worded on the basis of prior
observation in another context, and the empirical data will consciously be
selected in view of the research question. This is not specific to law, but com-
mon to all disciplines: ‘It is therefore clear that facts must be selected on the basis
of assumptions as to which ones are relevant for resolving a given problem.’33
If one wants, for instance, to inquire to what extent some legal fields in private
law, in some continental European legal system, could be rearranged, inspired by
the English concept of ‘trust’, one will probably collect data around adoption
and bankruptcy law but not from all areas of private law.
Anyway, scientific ‘observation’ is not a neutral perception of facts that would
present themselves spontaneously. We are always faced with a specific reading of
selected facts, steered by the research question. The reading of a purely descrip-
tive overview of case law in a certain field and period may lead to the formula-
tion of a legal problem, in view of which additional material will be collected.
As in all disciplines, the observation of empirical data is theory-guided. A
problem is formulated within some theoretical framework. Apart from the aim
of solving that problem, the outcome of the research will also confirm, refine or
falsify those theoretical assumptions. The selection of relevant legal data will be
based on a theory of legal sources: which legal sources are relevant in this legal
system today, and what are their hierarchical relations? This may, of course, lead
to a research question such as, for example: does European law have priority over
the national constitutional order?
Neither the selection of empirical data nor their descriptions are neutral
activities. When the American Law Institute started, in 1923, the ‘Restatements’
of the American Common Law, it presented it as a neutral, apolitical activ-
ity. The Institute was strongly criticised because it implicitly started from the
false assumptions ‘that it is possible to describe the law as it is in neutral terms’
(pointing to the intertwinement of description and interpretation), ‘that it is
possible to make meaningful statements of legal rules without references to their
rationales’ (the aim of the law as interpretation context), or ‘without reference
to the practical context of their operation’ (concrete application as interpreta-
tion context).34
Indeed, when wording legal rules, as they appear from the valid legal sources,
the texts in question are interpreted. Often, there is no interpretation problem,
as there is an implicit consensus on the precise meaning of the text, but in other
cases we are faced with diverging readings of the same text, or the researcher has
to determine the exact meaning and scope of a newly enacted statute or a recent
33
 E Nagel, ‘The Nature and Aim of Science’ in S Morgenbesser (ed), Philosophy of Science Today
(New York, Basic Books, 1967) 3–13, 10.
34
 See on this: W Twining, Blackstone’s Tower: The English Law School (London, Sweet &
Maxwell, 1994) 134.
14  Mark Van Hoecke

court decision. In these cases it appears clear that the legal scholar is wording
a hypothesis as to the validity and the precise meaning of a legally relevant text
(relevant within the given legal system at the time of the research).35 In other
words, interpretation is at the core of the whole activity of legal scholarship.
Research questions in legal doctrine are, indeed, very often linked to the precise
meaning and scope of legal concepts, legal rules, legal principles and/or legal
constructions.
Every description of the law includes a whole series of interpretations and
offers, in this way, just as many hypotheses about the meaning and scope of
legal concepts, rules, principles and the like, that may be confirmed or falsified
through scientific research. Explicit interpretation questions are not a marginal
phenomenon in law. They arise when texts are unclear, but also when the result
of a literal interpretation leads to unreasonable, inequitable or even absurd
results. The confrontation of this result with the meaning given to the text, in a
way, ‘falsifies’ the implicit, prima facie meaning of the text. This will then lead
to the wording of a new hypothesis about the meaning of a text, which will be
checked with a more conscious, methodological interpretation by the researcher.
A hypothesis about the exact meaning of a legal concept, rule, principle and
the like, does not only refer to finding out what their authors had in mind. The
normative context today and the socially desirable result also co-determine that
meaning. Hence, this meaning is evolving and may change in the course of the
years, without any change in the texts. A unanimity today as to the meaning of
a legal text does not prevent scholars in the future wording new hypotheses as to
a slightly or even completely different meaning.
The wording of research questions is free. There are no rules which would
limit them. Of course, they should make sense and fit with the paradigmatic
theories that act as a framework for the legal doctrinal research in the legal sys-
tem concerned (the theory of legal sources, for instance, or the theory about the
acceptable interpretation methods), unless the researcher aims at questioning
this paradigmatic framework as such.

C. Theory Building in Legal Doctrine

A scientific ‘theory’ is defined as ‘a system of coherent, notably non contradictory

assertions, views and concepts concerning some area of reality, which are worded
in such a way that it is possible to deduct testable hypotheses from them.’36
35
 See, eg: A André, ‘Was heisst rechtswissenschaftliche Forschung?’ (1970) Juristenzeitung
396–401, 400; H Albert, Traktat über rationale Praxis (Tübingen, JCB Mohr, 1978) 80; A Aarnio,
Philosophical Perspectives in Jurisprudence, Acta Philosophica Fennica no 36 (Helsinki, Academic
Bookstore, 1983) 163–84 (On the Truth and Validity of Interpretative Statements in Legal Dogmatics).
Compare: ‘Seen in the perspective of time all statements of the law, whether by the legislature, or by
judges, or by jurists, are no more than working hypotheses.’ Lord Goff of Chieveley, ‘Judge, Jurist
and Legislature’ (1987) 2 Denning Law Journal 79–95, 80.
36
 AD De Groot, Methodologie, 3rd edn (The Hague, Mouton, 1966) 42.
 Legal Doctrine: Which Method(s)?  15

In legal doctrine this would mean:

‘A theory in law is a system of coherent, non contradictory assertions, views and con-
cepts concerning some legal system or part of it, which are worded in such a way that
it is possible to deduct from them testable hypotheses about the existence (validity) and
interpretation of legal concepts, rules or principles.’

For instance, from the theory of direct effect of EU law one may deduct hypoth-
eses about the (in)validity and (re)interpretation of legislative rules in one’s own
domestic legal system within the EU.
Such theories are, in their turn, based on generally accepted assumptions that
create the paradigmatic framework of legal doctrine. These shared assump-
tions include: a shared understanding of what ‘law’ is and of its role in society;
a theory of valid legal sources and their hierarchy; a methodology of law; an
argumentation theory; a legitimation theory and a shared world view (com-
mon basic values and norms). Within legal doctrine these are ‘meta theories’,
for which the definition of ‘theory’ given above is also valid. Such paradigmatic
assumptions are deeply rooted in tradition, but may evolve, and sometimes also
revolve. Examples are, within the theory of legal sources: the acceptance of the
priority of European Union law over domestic law, or the acceptance of ‘unwrit-
ten general principles of law’ as a valid source of law; within the methodology
of law: the acceptance of a more active role for the judge in interpreting the law;
as to the shared world view: changed views on marriage, family, homosexual-
ity, abortion, euthanasia. In each period, the paradigmatic assumptions of that
time are to constitute the framework within which more concrete theories about
law may be elaborated, tested, and discussed within the scientific community of
legal scholars.
The strength of scientific theories lies in their capacity to cover a domain as
large as possible, with a simple framework of concepts, rules and principles and
with a capacity to generate a large amount of testable hypotheses. For explana-
tory disciplines, the explanatory capacity of a theory is another element for
judging its strength.
In a first stage, concepts are construed for ordering reality. This implies
abstraction, logical coherence and, as far as possible, simplicity. One may, for
instance, assume that in primitive societies animals were originally classified
according to their size and colour and/or according to their capacity to fly, to
swim or to run. Later on, however, when more advanced theoretical knowledge
became available, the classification was based on other divisions: mammals/
non mammals or similarities and differences as to their DNA structure. In the
same way, the development of law and legal doctrine shows an increasing level
of abstraction. As, in more primitive societies, rules developed on the basis of
concrete cases, there were originally different rules, for instance, for the theft
of a horse, a cow or a sheep. In a later stage, a more abstract concept of (theft
of) ‘cattle’ was introduced. In a next stage of abstraction this became (theft of)
‘movables’. Concepts like ‘cow’, ‘sheep’ or ‘horse’ directly refer to visible objects
16  Mark Van Hoecke

in reality, whereas a concept like ‘cattle’ is an abstraction based on the utility of

certain types of animals for men, just like ‘pets’ or ‘deer’ which have another
type of utility for human beings, and as opposed to ‘vermin’, which is considered
as having no utility for mankind. The very general division between ‘movables’
and ‘immovables’ uses in turn, as a decisive criterion, the mobility and hence
negotiability of objects. By introducing the distinction between ‘corporeal’ and
‘incorporeal’ matters, the ‘goods’ as tangible objects are broadened with ‘rights’
and other abstractions, that may only be classified as ‘goods’ within a developed
legal system. All those divisions may seem to be ‘natural’ to most of us, as we
have grown up with them and can hardly imagine a legal system built on other
divisions, such as a division between ‘rats’ and ‘non-rats’, which used to be the
main division in the law of the Kapauku tribe in Papua.37
In other words, behind such concepts and divisions, there is some underlying
world view and choice of values, interests and principles, which explain the theo-
ries these concepts and divisions encompass. Reality is described, understood
and ordered, and actually partly created through such concepts and clusters of
concepts, which translate an underlying world view. Concepts, indeed, are not
neutral tools, they are theory driven. Concept formation and theory building are
closely intertwined in each discipline. As Hempel noted, they are in reality two
sides of the same activity.38 Concepts translate divisions of reality that are con-
sidered to be more important or more relevant than other divisions. In biology,
nowadays, the way of procreation of animals (mammals or not) is considered to
be more important than their biotope (water, air or land). In Roman law, the dis-
tinction ‘movable’/‘immovable’ was at the core of civil law and not, for instance,
the distinction between living creatures and non living things. The underlying
criterion is the different economic importance of those categories: Real estate,
‘immovable’ goods, constituted the main part of every fortune in Europe until
the nineteenth century. Movables generally had much less value. Today, however,
the economic importance of this legal division has largely been undermined by
the birth and development of partnerships. Companies have become the own-
ers of important real estate, whereas the shares in that company are considered
to be movable goods. In this way, through the legal construction of companies
and firms, ‘immovables’ changed into ‘movables’, which made this division
largely lose its economic importance. In the 1804 Code Napoléon, the distinc-
tion between ‘movables’ and ‘immovables’ determined which goods, in the statu-
tory marriage settlement, became ‘common’ (movables) to both spouses, and
which remained the property of one spouse only (immovables).39 When (thor-
oughly) changing the law on marriage settlements in 1976, the Belgian legisla-
37
 As recorded by L Pospisil, Anthropology of Law. A Comparative Theory (New York, Joanna
Cotler Books, 1971) 274–302.
38
 CG Hempel, Fundamentals of Concept Formation in Empirical Science (Chicago, The
University of Chicago Press, 1952) 1f.
39
 This means the movables and immovables the spouses possessed on the day of their wedding
(arts 1401 and 1404 of the 1804 Code Napoléon, which remained unchanged for almost two centu-
ries in several countries (in Belgium, for instance, until 1976).
 Legal Doctrine: Which Method(s)?  17

tor dropped this different ruling according to the division movable/immovable

and replaced it by the division between the goods that one possessed before
the wedding (which remain one’s own) and goods acquired during the marriage
(which become common).40 This new division was based on changed views of
marriage, including the acceptance of successive marriages and divorces. It is no
longer assumed that marriage lasts ‘until death separates us’, but that successive
relationships have become rather the rule than the exception. Hence, nowadays
it seems reasonable that spouses would only share what they built up together,
during their marriage.
In this way, concepts play an important role in theory building, but at the same
time they are, in combination with rules and principles, a result of those theories.
Theory building aims at combining specific interpretations of legal princi-
ples, rules and concepts in a (newly) systematised whole.41 In legal doctrine,
systematising means theory building. Re-systematising the law is a continuous
activity of legal scholarship due to an inflation of legislation and case law. New
legislation, for example in the area of consumer protection, requires some re-
systematisation of contract law. New judicial interpretations may necessitate
a refinement, or even a radical change, of previous theories. New European
rules, which directly affect domestic law, will require a re-systematisation of the
affected areas of law in the national legal systems of the Member States.

IV. Conclusion

From this short overview of the nature and methodology of legal research it
appears that legal doctrine is a scientific discipline in its own right with a meth-
odology that, in its core characteristics, is quite comparable to the methodology
used in other disciplines.
However, it also emerged that there is no agreement among legal theorists
on the nature of legal doctrine as a discipline, even independently from dif-
ferences among national traditions of legal scholarship. Starting from the way
legal doctrine has been practised in the course of history, since Roman times,
in most countries, we may consider it as a mainly hermeneutic discipline, with
also empirical, argumentative, logical and normative elements. Description of
the law is closely linked to its interpretation and, when describing the law, the
legal scholar is wording hypotheses about its existence, validity and meaning.
The level of systematisation and concept building is the level of theory building
in legal doctrine.
Some aspects which could not be discussed and are open for further research
and debate include:
40
 Arts 1399, 1405, 1406 and 1408 of the Belgian Civil Code.
41
 See, as to the close intertwinement of interpretation and systematisation in law, eg: J Chevallier,
‘Conclusion générale. Les interprètes du droit’ in Y Poirmeur, et al, La doctrine juridique (Paris,
Presses Universitaires de France, 1993) 276.
18  Mark Van Hoecke

• T he close relationship between legal practice and legal doctrine, including

scientific production by (full-time) legal practitioners and scholars active in
legal practice, make it difficult sometimes to draw the line between both and
to make the distinction between ‘scientific’ publications and sheer ‘vulgarisa-
tion’, transfer of information on some area of the law.
• Obviously, varying theories of meaning co-determine varying theories on the
nature of legal scientific research and its appropriate methodology. It can be
doubted if a consensus on such theories of meaning can ever be reached among
the international scientific legal community, or even within the community of
legal scholars of one single legal system. Hence, it will be even more difficult
to reach such a consensus as to the nature and methodology of legal doctrine.
• The problem of ‘objectivity’ in legal research, as there is no ‘objective’ reality
outside the constructions of legal doctrine. Moreover, legal scholars very regu-
larly take normative positions; posit some choice among values or interests,
which is ‘subjective’ par excellence. More than in the exact sciences, the only
form of ‘objectivity’ one may reach is the intersubjective consensus among
legal scholars.
• Not all research is about testing hypotheses or construing theories. There
are, for instance at a preparatory stage, also ‘exploratory inquiries’ or purely
‘descriptive research’ (eg collecting data in view of formulating hypotheses at
a later stage, not just vulgarisation).
• It is not because description/interpretation of the law and systematisation/
theory building has always been the core business of legal doctrine that one
should not consider broadening it, in a more interdisciplinary direction, by
putting law more systematically in context and use the appropriate method-
ologies of other disciplines. The question here is: how far should legal scholars
go in that direction and where do they reach their point of incompetence?
Conformity with the approach of empirical sciences is not a good reason to
do so, but in order to simply understand law and to elaborate theories and
concepts in law, one needs this law-in-context approach.42

42
 See, eg: W Twining, ‘Reflections on “Law in Context”’ in W Twining, Law in Context. Enlarging
a Discipline (Oxford, Clarendon Press, 1997) 36–62.
 2
The Method of a Truly Normative
Legal Science*1
Jaap Hage

T his chapter contains an argument to the effect that the proper

method for legal science depends on what one takes to be the nature of sci-
ence, the nature of the law and the kind of questions that are addressed in legal
science. It starts from three assumptions, namely that
(a) science is the collaborative pursuit of knowledge;
(b) the law consists of those norms which ought to be enforced by collective
means; and
(c) the proper standard to determine what ought to be done is what maximises
the long-term happiness of all sentient beings (the H-standard).
On the basis of these assumptions the following positions are argued:
1. Legal science, in the sense of a description of the law, is not impossible for the
reason that it is a normative science.
2. In abstract the method of all sciences, including legal science, is to create a
coherent set of positions that encompasses ‘everything’, and therefore also
beliefs about the law.
3. The proper method for a normative legal science consists primarily of the
methods of sociology, psychology and economics, because the ultimate ques-
tion to be answered is the collective enforcement of which norms satisfies the
H-standard. The more traditional hermeneutic methods only play a role to
the extent that they establish positive law that contributes to happiness by
providing legal certainty.

1
* The author would like to thank Anne Ruth Mackor, Jan Smits, Michal Araszkiewicz and the
other participants of the Tilburg Workshop on the methodology of legal research for useful com-
ments on a draft version of this contribution and discussions on the nature of legal knowledge and
science.
20  Jaap Hage

I. Preliminaries

In this chapter I will outline a method for a truly normative legal science. With
‘truly normative’ I mean that this legal science provides the answer to some
version of the question ‘what should we do?’ I will argue that the issue of the
method for legal science hangs together with views on the nature of science, on
the nature of law, on the justification of alleged knowledge, and – as I will argue
– in the end with almost everything. The second section of this chapter will be
devoted to an argument that the method for a normative science is essentially
the same as that of a science that deals with ‘facts’. In this first section I discuss
a number of assumptions that are needed to get the argument started. The pre-
cise status of these assumptions will be clarified in section III, which deals with
the method of normative legal science in particular. Section IV summarises the
argument of this chapter.

A. The Nature of Science

If we want to know what the proper method for legal science is, we should at
least have some idea of what we mean by ‘science’.1 Science has to do with the
pursuit and accumulation of knowledge.2 Moreover, it aims to systematise this
knowledge. How this systematisation takes shape depends on the object of the
knowledge. In the case of historical sciences, the system derives from the way
in which facts and events explain each other. In the case of physical sciences,
the system consists in the laws that are formulated and that are used to explain
and predict events and facts, and in the way in which laws are derived from each
other. In mathematics, the system consists in the axiomatisation of a subdomain
and in the derivation of theorems from these axioms.
A third characteristic of science, which explains other important character-
istics, is that science is a social phenomenon. It is impossible to be the only
scientist in a field, at least in the long run. Science is a cooperative enterprise
aimed at the acquisition, accumulation and systematisation of knowledge. The
advantage of science over individual acquisition of knowledge is that scientists
can build on the results of their colleagues. To quote Newton: ‘If I have seen
further it is only by standing on the shoulders of giants.’ 3
1
 However, the editor of Blackwell’s A Companion to the Philosophy of Science (Oxford,
Blackwell, 2000), WH Newton-Smith, refused to give a definition in the Introduction of the book,
because the prospect to succeed would be bleak.
2
 According to Anne Ruth Mackor, ‘Explanatory Non-Normative Legal Doctrine’, in chapter
three of this volume, an important task of sciences, including legal doctrine, is to explain legal
norms. This view is well compatible with the view of science exposed here, because the explana-
tion Mackor is after boils down to the knowledge that particular legal norms can be derived from
(amongst others) other norms.
3
 In original Latin: ‘Pigmaei gigantum humeris impositi plusquam ipsi gigantes vident.’ Letter
to Robert Hooke of 15 February 1676. See en.wikiquote.org/wiki/Isaac_Newton (last consulted
15 December 2009).
 The Method of a Truly Normative Legal Science  21

Let us assume that science is a way in which people collaborate in the pursuit
and systematisation of knowledge. If such collaboration is to be possible, sev-
eral conditions must be met. First it must be assumed that the aspired knowledge
is, at least approximately, the same for everybody involved in the cooperation.
If everybody would have his or her own ‘truth’, it would be impossible for one
person to build on the results of other persons.4 This demand would, in the eyes
of many, exclude aesthetics and astrology from the arena of science. Very often
the assumption that truth is the same for everybody is made on the basis of
another assumption, namely that knowledge describes a world which is mind-
independent and therefore the same for everybody (ontological realism). A true
description of this independent world would be the same for everybody too. It
is possible, however, to assume a truth that is the same for everybody without
endorsing ontological realism. Mathematical truth would, according to many,
be a case in point.

B. Science and Method

A second precondition for the possibility of cooperative knowledge pursuit is

that there exists, at least to a large extent, agreement on what count as good
reasons for adopting or rejecting a potential piece of knowledge.5 Here is where
method comes into the picture. For what is a scientific method?
In one sense of the word, it is a way of going about doing science. It is a kind
of procedure that is to be followed if the results are to count as ‘scientific’.6 An
example of such a procedure would be the empirical cycle as described by De
Groot7 or the Herculean method described by Dworkin in the chapter ‘Hard
Cases’ from Taking Rights Seriously.8
In another sense, a scientific method indicates what count as good reasons
for adopting or rejecting a potential piece of knowledge. Take, for instance, the
mathematical thesis known as the Goldbach conjecture,9 that all even numbers
bigger than two can be written as the sum of two prime numbers. One mathema-
tician would count on proof to establish the truth of this thesis, while another
mathematician would take a large collection of random even numbers, check
whether they can be written as the sum of two primes, and decide from that
4
 As Mackor pointed out to me, it is possible that there are several subgroups within a scientific
community with different ‘truths’ in the sense of points of belief convergence. Every such group
could theoretically have its own science.
5
 Arguably, there are other preconditions for science in the sense of collaborative knowledge
acquisition. One may think in this connection of ways in which scientific results are published,
financed, etc. For the present purposes the two mentioned preconditions, a shared knowledge object
and a common method, are the most important ones.
6
 Scientific method, even in the sense of a way of going about doing research, is general. This
means that a method is not an algorithm to be followed in a particular research project.
7
 AD de Groot, Methodologie (’s-Gravenhage, Mouton, 1961) chapter 1.
8
 See R Dworkin, Taking Rights Seriously, 2nd edn (London, Duckworth, 1978).
9
 See en.wikipedia.org/wiki/Goldbach%27s_conjecture (last consulted 2 November 2009).
22  Jaap Hage

sample that the conjecture is almost certainly true. If they consider their own
method as the only legitimate one, these two mathematicians cannot cooperate
in the pursuit of knowledge on number theory.
The adoption of a particular method in this second sense boils down to agree-
ment on what count as such good reasons. Since such an agreement is a precon-
dition for science as collaborative knowledge acquisition, a shared method is
almost by definition a precondition for science.10
Reasons in general, and therefore also reasons for accepting or rejecting a par-
ticular piece of potential knowledge, are facts that are relevant for what they are
reasons for or against.11 The adoption of a method is a choice for what counts
as relevant. It is also a choice concerning the kind of data that must be collected
in order to argue for or against a potential piece of knowledge. For instance, on
a hermeneutic method for legal science, the relevant data for a particular legal
conclusion might be that this conclusion is supported by the literal interpreta-
tion of a statute, which is adopted as an authoritative text. Therefore, a legal
researcher should consult this text, and apply, possibly amongst others, a literal
interpretation to it.12
The proper way of going about legal research method in the first sense is, to
a large extent,13 determined by method in the second sense of the recognition of
particular kinds of data as relevant for the issue at stake. It is this second sense
of ‘method’ that will be at stake in the rest of this chapter. Science in the sense
of collaborative knowledge acquisition is practically impossible without such a
method.

C. Method and the Object of Knowledge

The idea of a method is often connected to disciplines such as law, physics,

mathematics, biology, medicine, history, sociology or psychology. In the follow-
ing I will continue to write about the methods of a discipline, but this is, in a
strict sense, incorrect. Which facts count as reasons for or against a conclusion
depends on the type of conclusion and therefore on the research question at
issue. One discipline may deal with several kinds of research questions and then
different methods are relevant in answering these questions. Legal science is a
10
That science requires a shared method does not exclude that this method is mostly implicit,
or that it changes over the course of time. If such a change is drastic, for instance, if physics comes
to be based on experiments rather than on interpretation of authoritative texts, the nature of the
science also changes.
11
 An extensive discussion of the nature of reasons can be found in JC Hage, Reasoning with
Rules (Dordrecht, Kluwer, 1997) chapter 2. See also C Redondo, Reasons for Action and the Law
(Dordrecht, Kluwer, 1999).
12
 It is in this respect that Van Hoecke mentions normative and authoritative sources such as leg-
islation and case law, as empirical data used in legal doctrine. See ‘Legal Doctrine: Which Method(s)
for What Kind of Discipline?’ in chapter one of this volume.
13
 Other factors might be conventions on how results are to be published and restrictions on how
research may be financed.
 The Method of a Truly Normative Legal Science  23

case in point. The question as to what the criminal law of a jurisdiction is – the
traditional doctrinal question – differs, for instance, from the question how the
contents of the criminal law developed in the course of time – the legal histori-
cal question. It is improbable that the same kinds of facts would be relevant to
answer these two questions. So, if within a discipline different kinds of research
questions are being asked, the issue of method should be focused on a type of
research question, rather than on the discipline as a whole.14 For the following
discussion of the method of legal science, I will focus on the description of the
(contents of the) law of a particular jurisdiction at a particular place and time.15
The methods of a scientific discipline are normally chosen because the partici-
pants in the discipline assume that these methods lead to the kind of knowledge
pursued in their discipline. A good example is formal logic. One of the questions
with which formal logic deals is what the theorems of a particular logical system
are. Logicians believe that this question has one correct answer. Moreover, each
potential theorem either is or is not a theorem of the system at issue. Logicians
cooperate in identifying the valid theorems and by giving reasons (proofs) why
the proposed theorems are valid. Moreover, the alleged theorems and the accom-
panying proofs are published, to share the results with other logicians who can
build upon them, and who are also enabled to check whether the alleged theo-
rems have been proven. Logicians consider proofs to be relevant because they
assume that proofs lead to conclusions which are true, not only for the person
who gave the proof, but also for all other logicians. In fact, they even attempt to
prove that proofs lead to true results by showing that a particular proof theory
is ‘sound’. There exists an independent test, in the shape of model theoretic
semantics, which determines whether a particular theorem is true, and a particu-
lar logical calculus is sound (a recommendable characteristic) if its proofs lead
to theorems that are true according to the semantics.16
The point of this example is that scientific disciplines tend to assume that there
is truth to be had and also that the methods they employ are normally suitable to
discover this truth. Formal logicians assume that proofs lead to true theorems;
theorists of the physical sciences assume that the cycle of hypothesis formula-
tion, empirical testing of hypotheses, and improving the hypotheses on the basis
of the test results, leads to ever better (in the sense of more true) theories,17 and

14
 A consequence of this position is that a researcher should be explicit on the kind of research
question that he or she tries to answer, and in particular on the impact which this has for the choice
of a method. This is especially true where different questions within one field require different meth-
ods. Clarity about the kind of question that is addressed is crucial.
15
The clause ‘of a particular jurisdiction’ will be relativised in section III.
16
More on the nature of logic and in particular the relation between proof theory and (model
theoretic) semantics can be found in thorough introductions to formal logic, including S Haack,
Philosophy of Logics (Cambridge, Cambridge University Press, 1978) and LTF Gamut, Logic,
Language, and Meaning, 2 vols (Chicago, University of Chicago Press, 1990).
17
cf KR Popper, ‘Truth, Rationality, and the Growth of Scientific Knowledge’ in KR Popper,
Conjectures and Refutation, 4th edn (London, Routledge and Kegan Paul, 1972) 215–50. More on
the idea of verisimilitude can be found in C Brink, ‘Verisimilitude’ in Newton-Smith, Companion to
the Philosophy of Science (Oxford, Blackwell, 2000) 561–63.
24  Jaap Hage

moral philosophers assume that mutual adaption of concrete moral intuitions

and general moral principles lead to ever better moral theories.18
The methods of scientific disciplines are often based on implicit theories con-
cerning the nature of the discipline’s objects and the suitability of these methods
for obtaining knowledge about objects with that nature. As mathematical theo-
rems are different from physical laws, it takes different data to argue for the truth
of theorems than for the existence of physical laws. Changing insights into the
nature of a discipline’s knowledge object may lead to changes in method. If, for
instance, the law is not (anymore) considered to be an answer to the question of
what to do, but rather a body of rules, rights and principles that happen to exist
at a particular time and place, we might stop arguing about the contents of the
law by pointing out the consequences of particular rules, and revert to the study
and interpretation of authoritative texts or the behaviour of leading jurists.
A discipline and its methods are part of a wider body of (hypothetical) know­
ledge, which includes views on the nature of the discipline’s knowledge objects
and theories on how and why particular data are relevant to establish knowledge
about such objects. In connection with the proper method of legal science, this
would mean that the view concerning this method hangs together with a view
on the nature of the law, and a view on which data are relevant to determine the
truth – if there is any to be had – of potential pieces of legal knowledge.
At this point I want to mention the possibility that legal ‘science’ does not aim
at the pursuit of knowledge about something at all. Many lawyers are involved
in keeping the law of a particular jurisdiction in good shape. This is done by
describing the law as it is, incorporating recent changes caused by, for instance,
new legislation and case law, into the body of legal knowledge, by evaluating
the existing law and by proposing changes to it, or even – if one is in the posi-
tion to do so – by bringing about the desired changes.19 This is an important
task of legal ‘science’, and it is benefited by an academic level of dealing with
the law, but it is not science in the sense of the word used here of cooperative
knowledge acquisition. It is rather a form of highly qualified maintenance of the
legal system. There may be some overlap in method with ‘real’ legal science, but
maintenance of the legal system is a different discipline from legal science and I
will not deal with it here.

18
The standard reference here is J Rawls, A Theory of Justice, 1st edn (Cambridge, Harvard
University Press, 1971) section 9. See also N Daniels, ‘Reflective Equilibrium’, which can be found
at www.plato.stanford.edu/entries/reflective-equilibrium (last consulted 11 October 2009). Those
moral philosophers who consider themselves as being involved in a normative scientific enterprise
will also assume that the better theories are closer approximations of a moral ‘truth’ which should
be accepted by everybody, whether they agree or not. Mackor pointed out to me that moral philoso-
phers might, like mathematicians, confine themselves to axiomatising a body of moral rules. That is
correct, but then these moral philosophers would not be engaged in a normative enterprise anymore.
19
 See also the description of the practice of the legal discipline by P Westerman, ‘Open or
Autonomous? The Debate on Legal Methodology as a Reflection on the Debate on Law’ in chapter
five of this volume.
 The Method of a Truly Normative Legal Science  25

D. Three Views on the Nature of Law

In most disciplines, a method reflects a view of the discipline’s knowledge

domain. For instance, in physics it used to be assumed that nature obeys cer-
tain ‘laws’ and that these laws manifest themselves in observable phenomena.
Observations can be used to induce hypotheses about the laws and to test the
laws through predictions of new observations.20 The proper method is therefore
to use observations to induce laws from (empiricism), or to falsify predictions
(critical rationalism). In mathematics the idea is that the domain consists of a set
of theorems that somehow ‘follow’ from the discipline’s axioms. The appropri-
ate method is then to deduce the theorems from the axioms (or to prove, if that is
possible, that a potential theorem cannot be proven). Similarly, one would expect
the method of legal science to reflect a view about the law.21

i. Purely Procedural Law

It is possible to distinguish at least three fundamentally different views on the

nature of the law. One view is that questions about the contents of the law, even
‘easy’ questions, have no true answers and that the law consists merely of a set
of acceptable argument forms, such as an appeal to legislation, to case law, to
legal principles, human rights, legal doctrine, and the standard canons for legal
interpretation and legal reasoning. Legal argument is not aimed at finding the
contents of the law, because there is no such a thing. It is aimed at convincing one’s
auditorium of a particular legal position. Some arguments are more authoritative
than others22 and should therefore be more convincing, but what counts in the end
is not whether the correct position was defended – because the correct position
does not exist – but which argument was most convincing in the sense of being
effective. The law would be, to use Rawls’ phrase, purely procedural,23 with the
not unimportant clause that the procedures that constitute the law, the acceptable
20
 See eg R Harré, The Philosophies of Science (Oxford University Press, 1985) chapter 2 and
AF Chalmers, What is this thing called Science?, 3rd edn (Indianapolis, Hackett, 1999) chapters 4–5.
21
That is what one should expect, but as yet I know only a few authors writing on legal method,
who based their views on a theory about the nature of law. One example is C Smith, ‘Het normatieve
karakter van de rechtswetenschap. Recht als oordeel’ (‘The Normative Nature of Legal Doctrine.
Law as Judgement’; Rechtsfilosofie en Rechtstheorie 2009/ 3, 202–225), who bases himself on the
purely procedural view of the law that is described below. Another example is Mackor, ‘Explanatory
Non-normative Legal Doctrine’ in chapter three of this volume, who bases her explanatory account
of legal method on the view of law as social fact.
22
 If the authoritativeness of arguments is measured by standards which exist as matter of social
fact, the procedural view of the law merges with the view of law as social fact. The ‘only’ difference
between the two would then be that the procedural view of the law focuses on arguments by means
of which legal positions can be supported or attacked, while the view of law as social fact focuses
on the positions that turn out to be right given the argument forms that are commonly considered to
be authoritative. This difference is comparable to that between traditional and dialogical presenta-
tions of logical systems. cf EM Barth and ECW Krabbe, From Axiom to Dialogue (Berlin, Walter
de Gruyter, 1982).
23
 Rawls, A Theory of Justice (1971) section 14.
26  Jaap Hage

argument forms and the materials to which they refer – legislation, treaties, case
law and custom – to a large extent constrain the possible outcomes.24 The law for a
concrete case, or for a case type, would be the outcome of a battle of arguments.25
Legal science in the sense of collaborative knowledge acquisition requires the
possibility of agreement. If the law is purely procedural, this possibility can
only exist if the nature of the legal procedure constrains the possible outcomes
of a battle of arguments to such an extent that only one outcome is viable.26
However, then the law is not purely procedural anymore, because most legal
discussions would have only one possible outcome if played by the procedural
rules, and then the contents of the law are fixed, more or less in the same way
as mathematical theorems are fixed by the axioms and the rules of the proof
system. If the law is purely procedural, however, that is if the procedural rules
in combination with the contents of the legal sources do not determine the out-
comes of legal argument battles, there is no basis for agreement on the contents
of the law27 and legal science in the sense of collaborative pursuit of knowledge
is impossible.

ii. Law as Social Fact

A second view of the law holds that the law exists as a matter of social fact,
independent of what individuals may believe about it, but dependent on what
sufficiently many sufficiently important members of a social group think about
the contents of the law and think about what others think about it.28 A special
variant of this view is that of law as institutional fact, according to which most
of the law exists thanks to rules that specify what counts as law.29
This view of law as social fact has two advantages. First, it explains why the
law appears to be a matter of fact, independent of what individual persons think
24
These constrained options correspond to the norm-contentions described in Mackor,
‘Explanatory Non-normative Legal Doctrine’ in chapter three of this volume.
25
This view is defended by Smith, Het normatieve karakter van de rechtswetenschap, by A Soeteman,
Rechtsgeleerde waarheid (valedictory address at Vrije Universiteit, 19 June 2009) and by J Smits,
Omstreden rechtswetenschap (Den Haag, Boom Juridische uitgevers, 2009) 93f. The latter author also
gives references to other Dutch adherents of the view that the law is purely procedural (discursive).
Formal elaborations of the procedural view of the law are discussed in my paper ‘Dialectics in
Artificial Intelligence and Law’ in JC Hage, Studies in Legal Logic (Dordrecht, Springer, 2005) 227–
64.
26
 Soeteman, Rechtsgeleerde waarheid (2009) 15, writes about legal truth, and therefore seems to
assume that the law (often) sufficiently constrains legal arguments to make one outcome the right
one. Whether this single right answer can be identified easily or authoritatively is a different matter.
27
There may be agreement on what the law is not, however. In that sense, some knowledge is pos-
sible even on a purely procedural view of the law.
28
 One version of this view was made popular in HLA Hart, The Concept of Law, 2nd edn
(Oxford, Oxford University Press, 1994).
29
This approach is described in, amongst others, N MacCormick and O Weinberger, An
Institutional Theory of Law (Dordrecht, Reidel, 1986); E Lagerspetz, The Opposite Mirrors
(Dordrecht, Kluwer, 1995); DWP Ruiter, Institutional Legal Facts (Dordrecht, Kluwer, 1993); also
DWP Ruiter, Legal Institutions (Dordrecht, Kluwer, 2001) and N MacCormick, Institutions of Law
(Oxford, Oxford University Press, 2007). In chapter nine of this volume, the institutional approach
is explicitly adopted by J Bell, ‘Legal Research and the Distinctiveness of Comparative Law’.
 The Method of a Truly Normative Legal Science  27

of it, and that the contents of law depend on a particular jurisdiction. Second,
it explains why lawyers tend to argue about the law as if it already exists and as
if two conflicting legal positions cannot both be true.
The view of law as social fact has also an important disadvantage, namely
that there would be less law than seems at first sight. If law exists as a matter of
social fact, there cannot be more law than is fixed by social reality. In particular
there cannot be law about which knowledgeable lawyers fundamentally disa-
gree.30 And yet, such disagreements seem to occur frequently. Does this mean
that these lawyers do not disagree about the law, but rather about how the law
should be expanded to cover the case at issue? If this is the case, why do these
lawyers not clearly separate the two discussions, one about the law that actually
exists and the other about the most desirable way to create new law? Somehow
the arguments about the contents of the law and what would be desirable legal
solutions for types of cases seem to conflate. Is this a matter of methodological
confusion, of pious deceit, or is something else the case?

iii. The Normative View of the Law

The third view of the law assumes that something else is the case. According to
this view, the law is essentially an answer to the question what to do, and more in
particular what to do by means of rules31 which should be enforced collectively,
usually by means of state organs.32 Notice that according to this third view, the
law is, not what is actually enforced collectively, but what ought to be enforced
collectively. To state it in an overly simplified way: the law is an ought, not an
is.33 Therefore, I will call this the normative view of the law. On this normative
view there is principally no difference between the law as it is, and the law as
30
 At first sight, this drastic conclusion seems avoidable by allowing arguments of commonly
accepted types on the basis of commonly accepted legal sources. But then there are three possibili-
ties:
1. These arguments do not lead to a unique conclusion.
2. There is a unique conclusion, but this is not commonly accepted.
3. There is a unique conclusion, which is commonly accepted.
Only in the last case we can speak of law as social fact. The second case (as the first) would be a
variant of the procedural view of law.
31
The idea that the law consists of the rules that should be enforced collectively does not involve
the other idea that this should apply to rules on an individual basis. One might well opt for the ver-
sion that complete bodies of rules should be judged on whether they should be enforced collectively,
with the proviso that many rules belonging to such a body, in particular the procedural rules (cf JH
Merryman, The Civil Law Tradition, 2nd edn (Stanford University Press, Stanford, 1985) 70/1), do
not lend themselves well to enforcement.
32
 At least in theory it is possible to have a different normative view of the law, a view according
to which the law is an answer to the question what to do, but not the question which rules to enforce
by collective means. It might for instance be the question which rules serve the general interest. I will
not pursue this alternative normative view of the law here any further.
33
This is oversimplified because it assumes that an ‘ought’ is not an ‘is’. In ‘What is a norm?’ in
my Studies in Legal Logic (2005)159–202, I have argued why the proper distinction is between rules
and facts, and not between is and ought. I take these two distinctions to be quite different from each
other.
28  Jaap Hage

it should be.34 Moreover, the law would be a branch of morality, if morality is

taken as that set of standards that indicate what would be good and right things
to do all things considered and taking the interests of all human (sentient) beings
into account.35
The obvious advantage of the normative view is that it explains how discus-
sions on the contents of the law often deal with what is desirable. The equally
obvious disadvantage is that it seemingly fails to explain how the law is the same
for everybody, why law appears to be primarily national law, and how the law
is related to such matters of fact as the contents of legislation and of case law,
judicial decisions, and social practices such as the canons for interpretation and
legal reasoning. This disadvantage does not need to be real, however. The ‘posi-
tive’ law, which exists as a matter of social fact, is an important – in fact by far
the most important – factor that determines the law in the sense of rules that
should collectively be enforced. It is highly desirable that the law can function
properly in regulating human society and for that purpose it needs to be stable,
the same for everybody, and easily recognisable.36 In practice this means that the
law must by and large be positive law.37 The difference with the view of the law
as social fact is, however, that positive law is ‘real’ law (‘real law’ in the sense
of the law that should be enforced by collective means) not because that is the
social practice, but because, and to the extent that, the positive law ought to be
enforced collectively.
Moreover – and this has immediate implications for the method of legal sci-
ence – the positive law is only ‘real’ law to the extent that it contributes to the
recognisability of law and to legal certainty. This means that if the ‘positive’ law
can only be established by means of some contestable interpretation, it cannot
fulfil its coordinating function anymore and loses its presumptive force as law.

II. The Possibility of a Normative Science

In this contribution I intend to outline a method for legal science as a description

of existing law,38 on the assumption that the normative view of the law is correct.
Legal science would then be a normative science, aiming at the collective pursuit
and systematisation of normative knowledge, in particular knowledge which
rules should (here and now) be enforced collectively.
This view of legal science has some similarities with, but should nevertheless
be distinguished from the view, promoted by Smits, that legal science is nor-
34
For the famous contention otherwise ‘The existence of law is one thing; its merit or demerit is
another’, see J Austin, The Province of Jurisprudence Determined, several edns, note to the 5th lecture.
35
 Clearly, other circumscriptions of morality are possible.
36
For these and other ‘internal’ demands on the law, see LLH Fuller, The Morality of Law, revised
edn (New Haven, Yale University Press, 1969) chapter 2.
37
This position is far from new; it can already be found in Aquinas. See his Summa Theologica
I-II, Qu 95.
38
I therefore ignore other kinds of legal science, such as the explanation of existing law, or the
comparison of the law from different jurisdictions.
 The Method of a Truly Normative Legal Science  29

mative in the sense that it deals with the question of what the law should be.39
Although Smits is not very explicit about the nature of the law,40 it seems that
he considers the law to be a set of rules, etc that exist in social practice. Legal
science should, according to Smits, indicate what this practice should be. In my
opinion, the ‘real’ law, as distinguished from the merely positive law, is itself an
answer to a normative question and legal science as description of this ‘real’ law
aims at providing this answer. Despite this difference, the view of Smits on the
nature of legal science has an important similarity to my view, because we both
assume that legal science deals by and large with the question which rules we
should have, or should enforce by collective means.
The method that I apply to formulate the proper method for legal science is
to argue why the proposed legal method contributes to the pursuit of knowledge
about which norms should be enforced collectively. In particular it is not an
analysis of the method used in contemporary legal doctrine. This method is, as
is correctly pointed out by Van Hoecke,41 essentially hermeneutic. From the fact
that a hermeneutic method is in fact used in the development of legal doctrine,
it does not follow that this is the proper method, however. In this sense, I am not
a methodological naturalist.42 As I will argue in section II. E., the method that
is actually used in doctrinal legal science is no more than a starting point in the
process of deciding which methodological positions stand up to critical scrutiny.

A. Why Normative Science Seems Problematic

It is a popular view that normative science is not well possible.43 The reason is
generally some form of non-cognitivism concerning normative (and evaluative)
issues. It is customary to distinguish between the realms of is and ought and to
be an ontological realist with respect of the realm of the is, and to be a non-
realist with respect to the ought. With regards to is-matters, there would be a
mind-independent reality which is the same for everybody44 and which makes

39
 Smits, Omstreden rechtswetenschap (2009) 70.
40
 However, he does describe the law as a spontaneous order and a product of natural selection
(ibid 79, 81).
41
 See Van Hoecke’s contribution in chapter one of this volume.
42
 On methodological naturalism in legal theory, see B Leiter, Naturalizing Jurisprudence
(Oxford, Oxford University Press, 2007) 30–46. More information about methodological natural-
ism in general can be found in H Kornbluth (ed), Naturalizing Epistemology, 2nd edn (Cambridge,
MIT Press, 1994).
43
For the Netherlands, this position was taken by GE Langemeijer, Inleiding tot de studie van de
wijsbegeerte des rechts (Zwolle, Tjeenk Willink 1956) 296 and G de Geest, ‘Hoe maken we van de
rechtswetenschap een volwaardige wetenschap’ (2004) 2 Nederlands Juristenblad 58–66 (implicit).
According to Smits a normative legal science is possible, but in his view it is not possible that such
a science would lead to consensus (Smits (n 25) 111). Given my characterisation of science, this last
view of Smits implies the negation of his first view about the possibility of a normative legal science.
44
For a discussion of this form of realism, see M Devitt, Realism and Truth, 2nd edn (Oxford,
Blackwell, 1991) chapter 2.
30  Jaap Hage

every factual proposition true or false.45 With regard to ought-matters, such a

mind-independent reality would be lacking. To state it bluntly: whether we agree
about it or not, there would be a true answer to every question of fact, while
there is no such true answer concerning normative questions. What ought to be
done would not be a matter of facts that are the same for everybody, but a matter
of taste, or of choice, which may have a different outcome for different persons,
even if they are all fully rational. There is no common ground which can func-
tion as a foundation for agreement and where there is no ground for agreement,
so runs the argument, there is no room for science.
The same issue can also be approached from a logical point of view.46 To
justify an ought-conclusion by means of a deductively valid argument, at least
one of the premises must be an ought-sentence too. Moreover, for a successful
justification, the premises of the justificatory argument must be either true, if
they are factual, or justified. Since presumably normative premises cannot be
true, they must be justified, but this justification requires an argument with at
least one normative premise, which must be justified . . . etc. However long the
justificatory argument chain is made, it never touches solid ground in the form
of premises which have all truth values. This line of argument has become so
familiar that attempts to base normative conclusions on solely factual premises
are discarded without much discussion as committing the ‘naturalistic fallacy’.47
I will argue that this familiar line of argument against the possibility of a nor-
mative science either is much weaker than is usually assumed, or hits purely
‘factual’ science just as hard as it hits normative science. The central piece of my
argument is a theory about the nature of justification.

B. Positions

There are many different things which can be justified, such as beliefs, actions,
decisions, verdicts, etc. On first impression one might think that these different
objects of justification require different forms of justification, but this impres-
sion is only correct to a limited degree.
All forms of justification can be reduced to variants on justification of behav-
iour (including forbearance). This is obvious for actions, and since decisions
and verdicts can be brought under the category of actions (taking a decision, or

45
For the purpose of this contribution, I will ignore the complications of vague propositions and
of sentences with non-denoting terms in referring positions. These issues are to be dealt with by,
for instance, respectively fuzzy set theory and fuzzy logic (see en.wikipedia.org/wiki/Fuzzy_logic,
last consulted 12 October 2009) and theories on the relation between sentences and the referring
expressions in it. See, eg AC Grayling, An Introduction to Philosophical Logic, 3rd edn (Oxford,
Blackwell, 1997) chapter 4.
46
For an example, see RM Hare, The Language of Morals (Oxford, Oxford University Press,
1952) chapter 2.
47
The best exposition of this point is to my knowledge still PW Taylor, Normative Discourse
(Englewood Cliffs, Prentice Hall, 1961) chapter 9.
 The Method of a Truly Normative Legal Science  31

giving a verdict with this particular content), it should be obvious for decisions
and verdicts too. The same counts for using rules.
It is somewhat less obvious for beliefs, but the justification of a belief with a
particular content can be interpreted as the justification of accepting this belief
content. Accepting something can, for justificatory purposes, be treated as a
kind of mental action. And just as it is possible to accept belief contents, it is
possible to accept goals, values and principles.
It is even possible to continue along this line, by treating the justification of
the different forms of actions as the justification of accepting ‘that these actions
are the ones that should be performed (under the circumstances)’.48 In this way,
all forms of justification can be treated as the justification of accepting ‘some-
thing’. As a catch-all term for things that can be mentally accepted, I will from
now on use the word ‘position’.
Building on this definition, I will use the expression ‘position set’ for the set
of all positions accepted by a person.

C. Local and Global Justification

In the literature on legal justification, justification has sometimes been pictured

as a deductively valid argument.49 In such an argument the conclusion (what is
justified) must be true given the truth of the premises. The idea behind this kind
of justification is that the ‘justifiedness’ of the premises is transferred to the con-
clusion, analogous to the way in which the truth of the premises is transferred to
the conclusion in more traditionally conceived deductive arguments.
It seems to me that this picture is mistaken in at least two ways. First, because
it suggests that ‘being justified’ is a characteristic of positions that is similar
to truth, only somewhat ‘weaker’. Second, because it overlooks the essentially
global nature of justification. In a deductively valid argument, the conclusion
must be true if the premises are true. This means that the truth of the conclu-
sion is guaranteed by the truth of the premises, and that nothing else is relevant
for this truth.50 For instance, if the statements ‘All thieves are punishable’ and
‘Jane is a thief’ are both true, the statement ‘Jane is punishable’ must be true too.
Whatever else may be the case, this cannot influence the truth of the statement
‘Jane is punishable’, unless it has the implication that one of the premises is

48
 See Giovanni Sartor, Legal Reasoning. A Cognitive Approach to the Law (Dordrecht, Springer,
2005) chapter 3.
49
 See, eg R Alexy, Theorie der juristischen Argumentation (Frankfurt, Suhrkamp, 1978) 273–78
(on ‘internal’ justification); N MacCormick, Legal Reasoning and Legal Theory (Oxford, Clarendon
Press, 1978) chapter 2 (on ‘first order justification’).
50
This should be read as ‘irrelevant from an argumentation-technical point of view’. The only
thing that is really relevant for the truth of a conclusion is whether this conclusion corresponds with
the facts. However, that has nothing to do with the argument from which the conclusion follows.
32  Jaap Hage

false after all.51 For instance, the fact that Jane is only five years old either has no
impact on Jane’s punishability, because the statement ‘All thieves are punishable’
is still considered to be true, or – which is more plausible – it has impact, because
it makes the statement ‘All thieves are punishable’ false.
The general point here is that the truth of the conclusion of a sound justi-
ficatory argument (deductively valid with true premises) is not influenced by
additional information. If the premises of a deductive justificatory argument
are true, its conclusion must be true, and then probably also justified, whatever
else is the case. Therefore, it is not necessary to consider additional information,
because this information cannot change the conclusion anymore. Deductive jus-
tification is local in the sense that it needs only consider the premises and the
conclusion of a deductively valid argument.
The reader who thinks this is unrealistic is probably right. Not because deduc-
tively valid justification is not local, but because deductively valid justificatory
arguments are seldom offered. They are seldom offered, because they require
premises the truth of which cannot be established. Take our example about Jane.
It requires the premise that all thieves are punishable. That premise can only be
established if it is already known that Jane is punishable (that would be a neces-
sary condition), or if there is a rule that makes all thieves punishable, without
exceptions. The former demand would beg the question, because we need the
premise about all thieves to justify a belief about Jane. The second demand is
unrealistic, because rules tend to have exceptions, and these exceptions cannot
be enumerated.
Real life justification is normally based on premises that support the conclusion
without guaranteeing its truth. If Jane is a thief, this is a reason to believe that
she is punishable, but there may be other reasons which invalidate this conclu-
sion. One such a reason would be that Jane is only five years old. In general, a
position is justified if the reasons pleading for acceptance outweigh the reasons
against accepting it to a sufficient degree. However, this means that all reasons for
or against acceptance must be balanced and that means in turn that justification
must be global. A position which is justified in the light of a particular set of other
positions need not be justified in the light of an even larger set of other positions,
because this larger set may contain additional reasons against adopting it.52
In logic there is a technical term for a similar phenomenon: nonmonotonicity.
A logic is nonmonotonic if a conclusion that follows from a set of premises does
not need to follow from a wider set of premises.53 Analogously we can say that

51
This may be interpreted as a reason why justification on the deductive account of it is global
too. However, then the global nature does not lie in the deductively valid argument itself, but in the
justification of the premises.
52
 In fact, it is even more complicated, because apart from reasons against a position, there may
be reasons why the reasons for adoption are in general not reasons after all, or are excluded in this
special case. More details on the ‘logic of reasons’ in Hage, Reasoning with Rules (1997) chapter 4
and Hage (n 25) chapter 3.
53
 See, eg ML Ginsberg (ed), Readings in Nonmonotonic Reasoning (Los Altos, Morgan Kaufman,
1987) 1f.
 The Method of a Truly Normative Legal Science  33

justification is nonmonotonic because a position that is justified in the light of

a set of other positions needs not be justified in the light of a still wider set of
positions.54
Nonmonotonicity and the global nature of justification go hand in hand. The
‘normal’ justification of a position is always relative to a particular position set.
To get rid of this relativity, one needs to idealise and to assume that it is possible
to consider a position in the light of all other positions. A position would be jus-
tified in an absolute sense if it is justified in the light of all positions. Obviously,
absolute justification is an unrealistic notion for practical purposes, but it is use-
ful as a tool for thinking about the nature of justification.

D. Integrated Coherentism

Theories of justification are prone to be criticised for suffering under, what Hans
Albert has dubbed, the ‘Münchhausen-trilemma’, after the famous baron who
tried to pull himself out of the morass by his hairs.55 Because the premises of a
justificatory argument would need to be justified themselves, there seem to be
only three possibilities:
1. Some premises (eg those resulting from sensory perception under ideal cir-
cumstances) are dogmatically accepted as true or justified.
2. The need to justify the premises leads to an infinite regress, because the argu-
ments used to justify the premises also use premises which need to be justified,
and so on.
3. The premises of a justificatory argument are indirectly justified by the conclu-
sion of the justificatory argument; in other words: the justification would be
circular.
Let us assume that Albert’s analysis is correct and that these are the only three
possibilities. The question then is whether this is problematic. My answer would
be that it is not, because all justification is relative to the set of everything one
accepts, one’s position set. Justification is necessarily circular in the sense that
the justification of every position that a person accepts is based on this person’s
position set. On what else could it be based? Not on reality itself, because our
contact with reality is through what we believe about reality.56
The global nature of justification forces us to adopt a coherence theory of
justification. The idea behind coherentism is that the justification of a posi-
tion consists in the position being an element of a wider set of positions which

54
 A more extensive argument to the same effect can be found in the paper ‘Law and Defeasibility’
in Hage (n 25) 7–32.
55
 Hans Albert, Traktat über kritische Vernunft (Tübingen, Mohr, 1980) section 2.
56
 Perceptive states that lead to beliefs are not relevant for justification, even if they can explain
some of our beliefs. It is those beliefs (positions) that play a role in justification.
34  Jaap Hage

somehow ‘cohere’ with each other.57 Coherentism has the advantage over foun-
dationalism, its main competitor in the theories of justification, that it does not
require a foundational set of positions which are considered to be justified with-
out further reasons, and which are therefore made immune against criticism.58
This advantage comes with at least two seeming disadvantages. One alleged dis-
advantage is that if justification is considered to exist in a mutual relation between
positions only, the connection with the ‘world outside’ seems to be lost. Haack
writes in this connection about the consistent fairy story objection, or – even more
picturesque – the drunken sailors argument, because the elements of a coherent
theory may keep each other upright like drunken sailors who cannot stand by
themselves.59 I will address this seeming disadvantage in the next section.
The second disadvantage is that the notion of coherence is hard to specify.
What does it mean if a set of positions is said to cohere? There are very compli-
cated accounts of this notion of coherence,60 but it seems that a simple account
is possible. If coherence is treated as a characteristic of a set of positions that
includes not only beliefs, but also all kinds of standards, a set of positions may
also contain the standards that are used to determine whether a particular posi-
tion is justified in the light of a set of other positions. In fact, a comprehen-
sive position set would contain such standards. That makes it possible to use
the position set in the definition of coherence. A somewhat simplified account
would be the following: A position set is coherent if and only if it includes every
position that should be accepted in the light of its content (the counterpart
of logical closure), and does not include any position that should be rejected
according to its own content (the counterpart of consistency). As this notion of
coherence refers to standards that are contained in the coherent set itself, I have
called it ‘integrated coherentism’.61 When I write about coherence in the rest of
this chapter, I mean integrated coherence.
Since a coherent position set includes everything that should be accepted
according to itself, such a set will presumably be infinitely large. For realistic
justification we will have to work with more limited sets, under the assumption
that the limited set is a representative part of a coherent infinite set. I will call
this the soundness assumption. This soundness assumption is defeasible, in the
sense that it may turn out to be incorrect in the light of new information.
Suppose for instance that we are dealing with the belief that Jane is punish-
able. We know that Jane is a thief and that the rule exists (is valid) that thieves
57
This is one possible version of coherentism. For a brief overview of several alternatives, see
K Lehrer, ‘Coherentism’ in J Dancy and E Sosa (eds), A Companion to Epistemology (Oxford,
Blackwell, 1992) 67–70.
58
 If there are reasons for immunising some positions against criticism, these very reasons are the
proof that the privileged positions are not privileged at all, but derive their special position in the
set of all positions from their relation to other positions in the same set (the reasons). This kind of
‘immunisation’ is well compatible with coherentism. For details, see Hage (n 25) 42.
59
 S Haack, Evidence and Inquiry (Oxford, Blackwell, 1993) 26f.
60
 An example would be the theory defended by Peczenik and Alexy. See R Alexy and A Peczenik,
‘The Concept of Coherence and its Significance for Discursive Rationality’ (1990) 3 Ratio Juris 130.
61
JC Hage, ‘Law and Coherence’ (2004) 17 Ratio Juris 87. See also Hage (n 25) 58–59.
Another Random Scribd Document
with Unrelated Content
 CHAPTER XLII.
"YOU SHALL NOT MARRY RALPH CHAINEY!" UNCLE BEN CRIED,
VIOLENTLY.

Adown my cheeks in silence

The tears came flowing free,
And, oh! I can not believe it—
That thou art lost to me.
H. Heine.

While Kathleen was still weeping over Ralph Chainey's appealing

letter her uncle was announced.
She dried her tears and went down to welcome the old man.
Mrs. Stone had taken the children out for the morning, so Kathleen
had a long interview with her new-found relative.
He was so much like her dead father in his voice and looks that he
won Kathleen's heart at once, and when he expressed his love and
sympathy for her in moving terms, the unhappy young girl gave him
her confidence in the fullest measure.
She told him the story of her young life from the beginning—her
step-mother's cruelty, Alpine's unkindness, and Ivan's attempts at
courtship, which she had repelled with scorn.
Then her indignant voice softened as she murmured over the story
of her happy love-dream—her first romantic meeting with Ralph
Chainey, when he had saved her life, and her later acquaintance
with him, down to the moment when she had repulsed him with
scorn, and, in a fit of pique, engaged herself to Teddy Darrell.
"I was wrong—all wrong!" she cried, self-upbraidingly, and gave him
Ralph's letter to read.
Benjamin Carew listened in dead silence to all that Kathleen told him
of the young actor, and if she had observed him closely, she would
have seen that his brows were drawn together by a heavy frown.
Once or twice he seemed about to speak to her, but checked himself
abruptly and waited.
Kathleen, as soon as he had finished the letter, cried out, eagerly:
"Do you not see that I was wrong to judge him so hardly?"
Uncle Ben looked gravely into his niece's face and answered, almost
sternly:
"No; you were right, for appearances were against him."
"But, dear Uncle Ben, all that is explained away now, and I know
that I was wrong not to trust my lover," cried the girl, anxiously.
But he answered, firmly:
"You must not call that actor your lover. You are betrothed to Mr.
Darrell."
"But Teddy will release me if I ask him."
"Would you wound your true lover so cruelly?" asked the old man,
almost angrily.
The beautiful dark eyes were raised to his, swimming in tears.
"Oh, how unhappy I am!" cried poor Kathleen. "I am the most
wretched girl in the whole world! Every one is against me!"
The old man did not answer. He regarded her with sad, troubled
eyes through his smoky glasses.
"You, too, Uncle Ben, have turned against me just when I thought
you would be such a comfort to me," sobbed his niece.
"You are willful and unjust, my child, if you expect me to counsel
you to throw over your lover for the sake of a man who has a wife
already," was the mild reply.
"But he will be divorced, uncle, and then we will be free to love each
other."
"And this honorable young man, Mr. Darrell, will be thrown over
remorselessly for the world to laugh at as a jilted man!"
"Uncle Ben, I can explain it all to Teddy. He is so good and kind he
will forgive me. He would not want to marry me if he knew that I
loved another man."
Her heart, thrilling with the intensity of her love, lent fire to her eyes
and passion to her voice. She felt that it would be a sin to marry
Teddy with her heart so full of Ralph.
But the old man she had thought so kind and gentle rose up angrily
and caught her hand.
"You are mad—mad, girl, to think of throwing over Teddy Darrell for
this miserable actor! You shall not do it!" he cried, violently.
Kathleen tore her little white hand from his clasp in haughty
amazement.
"You have no right to control my actions!" she exclaimed; and he
sunk back into his chair and covered his face with his hand.
"True, true!" she heard him murmur, dejectedly. "I have no authority
over my brother's child. I am only a poor, humble old farmer, and my
advice is not desired, even though I would save my brother's only
child from wrecking her life for the sake of an unwise love! So be it.
I will go now, a sadder, wiser old man."
The pitiful words touched the girl's heart, melting her resentment.
She knelt by him and drew the hand away from his moist eyes,
murmuring, remorsefully:
"Dear Uncle, forgive me. I was hasty, and am sorry that I wounded
you. What would you have me do?"
"To marry Mr. Darrell," he replied, firmly.
"How can I?" she moaned, wearily.
"At least say nothing to any one of your change of mind just yet,
Kathleen. Think a moment. Ralph Chainey may not get his divorce.
Then, were it not better, child, for you not to compromise yourself by
declaring your love for him?"
"Perhaps so," she replied, dejectedly.
"Then you promise me not to have anything to say to Ralph Chainey
until the divorce is secured?" he went on, eagerly.
"I promise," answered the girl, with a long, heart-breaking sigh.
"Oh!" she thought, "how cold and cruel old people are! Surely they
forget they were ever young, or that they ever loved!"
But she could not bear to grieve the poor old man, and so she gave
him her promise.
"It is not for long, anyhow," she consoled herself with thinking, for
she thought it could not be long before Ralph secured the divorce.
"Then nothing on earth shall keep us apart," she thought, blissfully.
"Poor Teddy! he will soon get over his disappointment and love some
other girl."
Mrs. Stone came in at this juncture, and Kathleen began to feel quite
conscience-stricken over the treachery she was meditating to the
kind lady's cousin.
Strangely enough, after she had cordially welcomed Uncle Ben
Carew, Mrs. Stone plunged into the subject of which they had been
speaking—Ralph Chainey.
"I've just met the young actor," she said; "and congratulate me, my
dear, for he likes my plot, and I am to write him a play. Won't that
be nice? For he will make it famous. Teddy has been begging me to
create a part in it for him, and to ask Mr. Chainey to take him into
the company. Isn't it ridiculous in that spoiled boy? Why, he will be a
married man then, with no time for acting."
Kathleen turned the subject as quickly as she could, and then Mrs.
Stone devoted herself to Uncle Ben, persuading him to become her
guest for a week.
"I shall be delighted to have you, and Teddy will be glad to have the
pleasure of showing you the great sights of Boston," she declared.
So it was arranged, and Mr. Darrell manfully fell into the line of duty,
escorting Uncle Ben to all the places of interest in the city, feeling
fully rewarded for all his trouble by the murmured thanks of his
beautiful betrothed.
So three days passed by peacefully, and although Kathleen wept
bitter tears, when alone, over the dear letter her uncle had forbidden
her to answer, she managed to preserve a calm aspect before her
friends, and they did not guess how her heart was aching with its
secret pain. It grieved Teddy that she seemed to shrink from him a
little, but he kept on hoping he would win her love in the end.
Toward the middle of the week a great surprise came to Kathleen.
The long-hoped-for letter came at last.
The Southern relatives, so long deaf to her loving appeals, wrote at
last to say that they wanted Kathleen to come and live with them.
They were rich now, and could make her life as gay and luxurious as
it was before her father's death.
"I should like to go and visit them. My heart always yearned for my
mother's people," Kathleen said, wistfully.
Uncle Ben was thoughtfully perusing the letter. He answered:
"I will take you to them, my dear. I should not like for you to travel
alone any more."
"Oh, how good you are, dearest uncle!" cried the girl, gladly. "But do
you see they want me to come right away? They want me to be
there at the celebration of my grandmother's birthday, which, she
says, will be quite an event in the Franklyn family, so that all the clan
will be gathered at the old homestead, and I can see all of them."
"We can start for Richmond to-morrow," her uncle answered,
smilingly.
 CHAPTER XLIII.
THE OLD HOUSEKEEPER'S STORY.

I can not rise, my darling,

My breast is bleeding—see!
I stabbed myself, thou knowest,
When thou wast reft from me!
H. Heine.

"But my diamonds, Uncle Ben. I must wait here for them, you
know," said Kathleen.
"Pooh! We can leave that affair in the hands of a lawyer," he replied,
carelessly.
He was determined that nothing should hinder this opportune trip.
He was anxious to get Kathleen away from Boston, where Ralph
Chainey was playing every night to crowded houses. It would seem
as if Uncle Ben had as vigorous a dislike for actors as his dead
brother had cherished.
So he carefully smoothed away all her objections, declaring that he
had money enough to take them both to Richmond, and that she
could repay him, if she insisted on it, when she got back her
diamonds.
"I wonder if papa thought, when he gave them to me, that some
day they would be my sole little fortune!" sighed the young girl.
Uncle Ben did not answer. He was looking out of the window at the
country scenery, for they were on their journey now. Kathleen was
sitting opposite to him in the parlor car, with a big bouquet of roses
in her lap, the gift of the adoring Teddy, from whom she had just
parted at the station.
"A noble young fellow," Uncle Ben had said, and his niece answered,
with a little sigh:
"He has been very good to me; but, Uncle Ben, he is called the
greatest flirt in Boston, and I shouldn't wonder if he threw me over
at any time for a newer fancy."
"You are just wishing he would!" the old man exclaimed, curtly, and
she replied only by a roguish laugh.
The train rushed on and on through the wintry landscape, and both
of them grew very thoughtful. At last Kathleen touched her uncle's
arm with a timid hand.
"Uncle Ben, this going home to my mother's people makes me think
so much about her to-day. Tell me, did you ever see mamma?"
The man's strong arm trembled under the pressure of her little white
hand, and he answered in a voice that was hoarse with emotion:
"Yes, I knew little Zaidee—poor little darling!"
"Was she as beautiful as the portrait a great artist made of her?
There is one that hangs in my room at my old home. It is beautiful
as an angel, and papa used to come there often to look at it. I don't
think he cared for my step-mother to know how often he came."
"Zaidee was more beautiful than the portrait," answered the old
man, in a low voice.
He pressed her little hand tenderly as it rested on his arm, and said:
"Tell me all that you know about your mother, my child."
"They have told me that she died by her own hand. Was it not
terrible?" whispered the young girl, with paling lips.
"Terrible!" he echoed, with emotion; and then she asked:
"Uncle Ben, who was to blame for that awful tragedy?"
"No one," he answered, sadly. "Zaidee was passionate, willful,
jealous. She became madly jealous of a governess—a young widow
who was employed in the house to teach her painting and music.
Before poor Vincent at all comprehended the situation, his young
wife, in a fit of anger, destroyed herself by thrusting a little jeweled
dagger into her breast."
"And you are sure no one was to blame?" she persisted and after a
moment's hesitation he replied:
"Perhaps Vince was to blame; but he did not realize it then, poor
fellow! You see, Kathleen, he worshipped his lovely little bride, and it
grieved him that she was lacking in certain accomplishments familiar
to most young girls in his cultured set. To remedy this, he employed
teachers and Zaidee learned rapidly until——" he passed the back of
his hand across his eyes and groaned.
"Until——" repeated Kathleen.
"Quite unexpected by him—for she was probably too proud to betray
herself to him—Zaidee became quite jealous of that pretty young
widow, Mrs. Belmont, and in a fit of madness took her own life, and
nearly broke her husband's heart."
"He married the young widow in a little more than a year," the girl
replied, unable to resist this bitter fling at her dead father's memory.
He winced, the poor old man, as she spoke thus of her father, and
answered, almost excusingly:
"He was so wretched, and Mrs. Belmont comforted him. She, too,
had loved Zaidee, and shared his grief with him. That was how she
made herself so necessary to the unhappy man."
"The fiend!" broke hissingly from Kathleen's white lips.
He turned to her in amazement.
"What do you mean?" he asked, hoarsely.
It was well that they were alone in the car, for Kathleen's excitement
was terrible. Her eyes blazed, her cheeks paled, her heart beat
violently against her side.
"Uncle Ben, I am speaking of that woman who so unworthily took
my dead mother's place!" she exclaimed. "Yes, she is a fiend! She to
pretend that she loved the memory of the woman she goaded to
madness—perhaps murdered; for no one saw my poor young
mother drive the fatal steel into her heart. Oh, God! what deceit—
what treachery!"
He grasped her wrist with steely fingers, his eyes flashed with a fire
akin to hers, and he whispered;
"Hush! You must not dare accuse her so! You drive me mad! Oh, it
can not be!"
"You take that false woman's part, then, Uncle Ben, against me and
my poor young mother? Listen, then; let me tell you all I know—a
secret I kept from my dead father, because I believed in him, trusted
him, in spite of the servants' gossip that accused him of complicity in
his young wife's death."
"They dared, the hounds! accuse m-my brother thus?" he breathed,
fiercely, the perspiration starting out on his brow, his strong frame
trembling.
"Yes, they accused him," answered the girl. "Do not take it so hard,
Uncle Ben. He was innocent, I know; but that fiendish woman
played her part to perfection. She made my mother believe that
Vincent Carew wished her out of the way, so that he might wed her,
the traitress! She made the servants believe the same. She even
plotted——" But suddenly the girl paused with clasped hands. "Oh!
uncle, dear, it will wound you if I mention this; it will blacken my
father's memory in your eyes—and I always loved him—I love him
still, in spite of what he has done to me, and I ought to spare him."
"Go on, Kathleen. I command you to tell me everything. I have a
sacred right to know," commanded the agitated man by her side.
"Listen, then, dear uncle: Just a few months before my father went
away on that foreign tour, from which he never returned alive, I
received a message from an old woman calling me to her death-bed
in the suburbs of the city. I went, taking my maid with me. In a
secret interview that followed the dying woman told me she had
been housekeeper at the Carew mansion in my mother's time. She
could not die easy without revealing to me a secret she had carried
untold for sixteen years."
"That secret?" questioned Benjamin Carew, wildly.
"Was this," replied the girl, solemnly: "On the day of the tragedy,
Mrs. Belmont sought the housekeeper, pretending to be overcome
with grief, surprise, and indignation. She confided to the woman that
Vincent Carew had been making secret love to her ever since she
first entered the house, and that day had openly declared his
passion, begging her to fly with him to Europe, saying that his
ignorant child-wife would then secure a divorce, and he could then
marry his heart's best love. With tears and shame, Mrs. Belmont
owned that she could not help loving her handsome employer, but
that she had repulsed him with scorn, and resigned her situation to
take leave immediately. Mrs. Belmont was too much overcome to
explain to her pupil, and wished the housekeeper to tell Mrs. Carew
the whole cause of her leaving."
"My God!" groaned the old man at Kathleen's side; but the girl
hurried on, with blazing eyes.
"The housekeeper, after the fashion of most servants, was too ready
to believe a tale of scandal, and to excite a sensation. She did not
think of doubting Mrs. Belmont then, although grave doubts assailed
her after the tragedy. Well, with her heart on fire with sympathy for
her wronged mistress, she did not think for a moment of sparing her
the whole cruel truth. She blurted it all out in burning words, and
advised the outraged wife to forsake her monster of a husband and
return to her own relatives. Within the hour mamma was found
dead."
 CHAPTER XLIV.
GRANDMOTHER FRANKLYN.

I dreamed that the moon looked sadly down,

And the stars with a troubled ray;
I went to my darling's home—the town
Lies many a league away.
H. Heine.

Kathleen's awed voice died away in a hushed sob, and in the grand
parlor car there was a dead silence, broken only by the clatter of the
car-wheels as they rushed over the glistening steel rails.
Old Benjamin Carew crouched silently in his seat, with clinched
hands and half-averted face, but Kathleen could see that he was
pale as death, and beads of dew stood on his forehead and around
his pain-drawn lips.
"How dearly he must have loved his sister-in-law—my unhappy
young mother!" she thought, tenderly; and just then his hand moved
and sought hers, clasping it fondly, but with a grasp as cold as ice.
"Oh, Uncle Ben, I ought not to have told you this distressing story!"
she exclaimed, remorsefully. "I am so glad to think that I never told
papa the story I had from the dying housekeeper. It would have
been so cruel for him to know that the woman he had loved and
trusted had plotted away the life of my mother."
"Hush, child! you drive me mad! This is too cruel!" groaned the old
man.
He leaned his gray head forward on the seat, and sobs, all the
fiercer for being suppressed, shook his slight frame. Kathleen wept,
too, and altogether it was a sorrowful journey they had to the home
from which Vincent Carew had carried Zaidee, his fair young bride,
to meet so dark a fate. They talked but little, for a heavy cloud of
trouble hung over their spirits and shadowed the future, and the
young girl at length became conscious of a strange dread of arriving
at the end of the journey so long ardently desired. She ascribed it to
sudden timidity at meeting strangers. She did not dream it was a
warning presentiment.
She was glad that the cars went straight through Lincoln Station
without changing. She could not bear to be reminded of that terrible
night when the talon-like fingers of her unknown assailant had
closed stranglingly about her white throat, and of all the sorrows
that had followed after. The girl, so young and tender, shuddered as
with an ague chill, wondering how she had lived through it all.
"And poor Daisy Lynn! poor Daisy Lynn! what ever became of that
unhappy girl?" she wondered, pitifully, and her thoughts wandered
to the girl's sad love story. "How sorrowful it is to go mad for love!"
she sighed. "And yet, how sad it is to lose one's love and remain
sane and conscious in the midst of all the cruel pain. Oh, God! am I
fated to lose Ralph, my own true lover? How shall I bear to give my
hand to another man while I love Ralph so dearly?" And when the
train ran into the station at Richmond she was weeping bitter,
burning tears for her love, Ralph, from whom she was so cruelly
parted. "Oh, the pity of it that I did not believe in him that day that I
sent him away from me in scorn, when he was already so sorrowful!
Oh, Ralph, my darling! I did not think then that I should ever be
suing for your forgiveness for my cruel words; but now—now I could
fall at your feet for pity and pardon!" sobbed the unhappy young
girl; and there came to her a memory of some verses she had read
in the poems of Mittie Point Davis—sweet, sad verses from a loving
heart:

"I did not think that I should say it first,

That summer evening when we quarreled so
About some trifle you had magnified—
Men are so harsh, you know.
 I said some bitter words of hate and scorn;
My pride was up, my temper too, indeed—
But now I know that I perhaps was wrong,
And, dearest, I am brave enough to plead:
Forgive me!

"I did not think that I should say it first,

Not even when you stayed away so long;
I thought I could be proud and stubborn, too,
I did not know that love could be so strong.
I did not think that life could seem so long
Without the love I reckless cast away;
But now I know that I perhaps was wrong,
And, dearest, I am brave enough to say:
Forgive me!

"I did not think that I should say it first,

That summer evening when we quarreled so—
I hated you, I know you hated me;
But, darling, that seems long and long ago—
So long, and I, oh! I have missed you so!
While you, perchance, have shared my silent pain.
We both were wrong, but love has conquered pride,
Forget the past; let us be friends again—
Forgive me!"

"Richmond!" shouted the conductor, and Kathleen roused with a

start from her sad musings, and drew her heavy wraps about her, for
the opening of the car door had let in a blast of inclement air. It was
late in the afternoon—almost twilight—and a long carriage ride was
before them; for the Franklyns had written that they lived on the
suburbs of Richmond, but would send a carriage to meet Kathleen.
Sure enough, a close carriage was in waiting, the driver an old darky
who seemed surprised and even displeased that he had two
passengers instead of one.
"Mistis was only 'specting a lady," he observed.
"This is my uncle, who came along to take care of me," Kathleen
answered, with assumed cheerfulness, for her heart was beating
with a strange suspense and dread. The old negro put her trunk up,
and they entered the carriage, and set out on a long ride that did
not end until night had wrapped its sable pall of gloom around the
earth.
"Oh, uncle, how glad I am that you came with me! I should have felt
so frightened all alone!" whispered the girl, nestling close to her
relative's side.
He answered only by a silent pressure of her little hand. He had
been strangely moody and silent ever since she had told him the
story of her mother's tragic death.
The dark, gloomy exterior of the old brick house standing alone in
thick, shrubberied grounds was not inviting, but presently the front
door opened and a gleam of light stole forth. In its ray there
appeared a witch-like old woman huddled in a gray blanket shawl,
who stood shivering in the hall while they alighted.
"Howdy, granddaughter? Glad to see you!" She gave Kathleen a cold
peck on the cheek and peered curiously at her companion. "Who's
this? I warn't expecting anybody but you, my dear. Oh, your uncle!
Howdy-do, sir? Walk right in, both of you, to the parlor. Folks all out
at a party but me. You'll see them in the morning."
She ushered them into a prim, old-fashioned sitting-room that did
not show much pretension to the wealth the Franklyns had written
they were possessed of; but Kathleen was so glad of the great
glowing fire that she ran to it and held her numb fingers to the
blaze, with scarcely a glance at her surroundings. Uncle Ben
followed her with a strange sinking at the heart.
His impressions of Mrs. Franklyn—Kathleen's grandmother—were not
favorable, it seemed.
She was unprepossessing in her looks and manners, and she
certainly regarded him in the light of an interloper. She had not
extended to him the warm welcome that Northern people are led to
believe is characteristic of Southern hospitality.
Mrs. Franklyn pulled out a little table on which was arranged a
tempting little supper.
"I kept oysters and coffee warm for you," she said beamingly. "Now
lay off your things, both of you, and eat before they get cold, won't
you?"
"I am so tired—my head aches—I don't think I can swallow a
mouthful!" pleaded Kathleen, on the point of hysterical tears.
Oh; why had she come? She was alarmed, somehow, and she
wondered why her heart had failed to go out warmly to this new-
found relative, as she had expected. Instead, she experienced fear
and repulsion.
But the old woman was not to be denied. She almost forced her
reluctant guests to swallow some of the food, and then she bundled
them off to their rooms with an alacrity that savored of anxiety to be
rid of their company.
"You must be dead tired and wanting to rest, and I'm free to confess
that it's long past my usual bed-time," she declared.
"Good-night, Uncle Ben. I hope you will rest well," Kathleen said,
kissing the old man with quivering lips. Then they parted, each to
their separate rooms.
But there was no rest for Uncle Ben; his pillow was one of thorns,
and he rose and paced the floor at midnight, restless and unhappy.
"My heart is on fire! Oh, God, I can not bear this pain! Let me go out
into the cold, dark streets and walk it off!" he muttered, restlessly,
and hurried into his clothes. "I suppose I can easily slip out of this
old, ramshackle house without arousing any one," he thought as he
proceeded to open the door.
But he recoiled with a start, for the door was locked on the outside!
He was a prisoner in this strange house!
 CHAPTER XLV.
IVAN RECEIVES A CHECK IN HIS CAREER.

Full many a thankless son has been,

But never one like mine.
His meat was served on plates of gold,
His drink was rosy wine.
Thomas Hood.

When Kathleen and her uncle had left the house on Commonwealth
Avenue, Mrs. Carew turned to Ivan with angry eyes.
"Is it true? Have you got that girl's diamonds?" she inquired.
"Of course he has. You can read it in his guilty face!" chimed in
Alpine, contemptuously.
Ivan glared back at them with defiant eyes.
"What are you going to do about it?" he asked, insolently.
"You must return them. There will be a terrible scandal if you do
not," replied his mother.
"I have sold them and spent the money," he returned with inimitable
coolness.
"Good heavens! what will you do?" she cried; and to her indignation
he laughed out aloud as he said:
"You and Alpine will have to make up the four thousand between
you, and pay Kathleen!"
"I will not!" came in a burst of rage from Alpine's lips, and her
mother echoed it.
"I will not!"
The son leaned back indolently in his chair, not a whit moved by
their anger. They always had come round to his demands. They
would have to do it now.
"Would you bring disgrace on yourselves by having me sent to
prison to save a paltry four thousand dollars?" he demanded, with
the air of one who is master of the situation.
They glared at him aghast. The two women loved money
passionately. It made them almost frantic the way that Ivan
squandered it.
"You two are rolling in wealth," he continued, "and yet you begrudge
a poor devil of a son and brother a few thousand to get him out of a
penitentiary scrape."
The listeners shuddered. Next to money, they loved good repute,
and it was the dread of their lives that the dissolute Ivan would bring
disgrace upon them. And here it was staring them in the face. The
penitentiary, ugh!
"We have spent at least fifteen thousand dollars on you since we
came into this fortune!" groaned Alpine.
"And what you ever did with so much money, in so short a time, I
can not imagine," added Mrs. Carew.
"Fast living and cards," laconically replied the villain.
They looked at each other, the two badgered women, and one
thought was in the mind of each. Ivan was shameless, defiant. He
would never alter his evil courses and if he went on like this, and
they had to supply him with money, he would bankrupt them in the
end. Disgrace would come to them sooner or later through this black
sheep.
Alpine turned to him and asked curiously:
"How did you find out that Kathleen had left her diamonds at the
jewelers?"
He started and whitened at the suddenness of the question, but
answered, doggedly:
"That is my own secret, and I do not choose to disclose it."
"Neither do I choose to help you out of the scrape you have brought
on yourself. Not a dollar will I give you!" retorted Alpine, stung to
defiance and rebellion by his matchless assurance.
He did not believe her, and smiled as he answered:
"Oh, yes, you will, for your own sake, my dear sister. Perhaps you
think I don't see through your little game; but I do. You're trying to
marry Ralph Chainey, the great actor, although he does not care a
pin for you. However, you are crafty enough to hook him, I'll be
bound—only, he certainly would not look at you again if Kathleen
sent your only brother to prison for stealing her diamonds."
Her blue eyes blazed on him with the steely glare of a bitter hate;
but she said, almost as if begging him to do better:
"But, Ivan, if we helped you out of this, you would be into some new
scrape directly."
"Very likely," he replied, taking insolent pleasure in torturing her, not
dreaming she would really turn at bay.
But Alpine was reckless, desperate—ready to give up the fierce
contest with an untoward fate. A revengeful longing to punish Ivan
for his misdeeds, even at the bitterest cost to herself, assailed her
and drove everything else out of her mind. Her eyes flashed, her
face grew ashen, and, turning to her mother, she said, in a low,
tense voice:
"You see how it is, mamma. If we help him out of this, it will be
something else directly. How can we bear the strain for years? Do
what we will, he will beggar and disgrace us sooner or later. Why not
let the end come now? Let—Kathleen send him to prison for his
crime, and we—we—can live it down as best we may."
Every word fell like a drop of ice on the ingrate's heart. Did she
mean it? Would they desert him at last, these two?
He was frightened, and yet incredulous. He had heard and read and
believed that there was no limit to the love and forgiveness of a
mother's and sister's heart.
But he had gone too far in his insolent assurance, and, to his terror
and amazement, his hour of reckoning had come at last.
He did not take into account the fact that he did not have a good
woman for a mother. His excesses had turned her heart against him,
and to his horror she sided with Alpine, angrily discarding him.
"I wash my hands of you," she said, bitterly. "Kathleen may send you
to prison if she will. Alpine and I can go abroad. The affair will soon
blow over, and people will forget it by the time we come home from
Europe."
He dropped his insouciance, and descended to pleading, but it was
of no avail. He saw a black fate lowering over him from which there
seemed no escape.
In the darkest moment a clever idea came to him.
"If I could only escape to Europe, the whole affair would be over, for
I would never come back; but, alas! I have not the means to pay my
passage across the ocean," he said, despondently.
Mrs. Carew caught eagerly at the offered bait.
"If you will go and never return, I will furnish you the means," she
said.
"I swear it," he replied, and left the house presently, the money in
his pocket, an evil, sneering smile on his thin lips.
Meanwhile, Jones had said to Miss Belmont:
"Mr. Chainey has been waiting in the drawing-room some time to see
you."
"You should have told me sooner," she exclaimed, flashing at the
prospect of seeing Ralph.
"I did not like to interrupt you, miss," he replied, respectfully, but
Alpine did not wait to hear his apology; she hurriedly sought the
man she loved.
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