Why legal scholars, philosophers and empirical researchers need each other

For a long time, Sanne Taekema thought that her research into the rule of law and her work on the methodology of law were two separate worlds. Until she suddenly saw that there are hidden empirical and legal-doctrinal arguments in legal-philosophical texts. What began as a critical note developed into a constructive approach to strengthen legal scholarship.

The wonder

“I’m very fond of thinking very hard. And of discussing this with other people who do the same. I spent a year studying at a liberal arts college in the United States, where I took several philosophy courses. I thought Plato’s dialogues were a real eyeopener. As a reader you are drawn into thinking for yourself because the whole story is set out in a question-and-answer structure; the Socratic method. And then you suddenly get it.

“After that I knew that I wanted to study Philosophy. I soon realised that you need an area of application for it, so I also started studying Law. I find that intersection extremely interesting. Since working in Rotterdam I have specialised in the rule of law. How is the rule of law under pressure due to globalisation and privatisation?

“In addition, I have become increasingly interested in the methodology of legal scholarship, another discipline. Law is not an empirical discipline, but a textual discipline. What does that mean, and how does it relate to other forms of science?”

The eureka moment

“In legal scholarship, disciplines withdraw into their own approaches too often: one studies only theory, another only facts. I also saw my research into the rule of law and my work on the methodology of legal scholarship as two separate worlds. Until, for a paper, I read an article by the legal philosopher Jeremy Waldron. I admire his approach to the rule of law, but suddenly I wondered: what exactly is he basing this on?

“When I looked at it through a methodological lens, I saw a big gap in his reasoning. He stated that ‘ordinary people’ see the rule of law very differently from legal philosophers. An empirical claim that he did not substantiate. By seeing it through that methodological lens, it suddenly struck me.

“I planned to write a classic legal-philosophical article in which I peel off arguments and show where thinkers like Waldron fall short. But at a certain point I thought: what is possible if you combine methodology with legal and empirical methods? Could it, in addition to a critical note, lead to something constructive if I combine those two worlds of my work? Then something clicked. I had really hit upon something new.”

The research

“I wanted to apply that combination of normative-theoretical, legal and empirical perspectives in a case study. I chose the Rule of Law Index for that; an international ranking that gives countries a score for the quality of their rule of law, based on empirical data.

“I soon saw that the index brings together factors that cannot really be weighed against one another. The efficiency of the judiciary, for example, carries as much weight as combating corruption or judicial independence. As a result, countries with completely different legal practices can receive the same score. Singapore and Belgium, for instance, appear next to each other in the ranking, but for completely different reasons. What does such a score actually tell us?

“I also discovered that there is a ninth factor, namely informal justice. These are ways in which people resolve conflicts outside the courts. This is hard to measure, so this factor is not included in the index, even though it is crucial in many countries. That set off alarm bells for me as a legal philosopher: the system is much more pluralistic than that single score suggests.”

The aftermath

“By combining my three perspectives, I saw how empirical data and legal assumptions together form an instrument that is not neutral, but infused with values. Many people intuitively sense that something is off about such a score, but cannot quite pinpoint what. Legal philosophy then helps to identify precisely what is flawed in such an apparently objective measure.

“That insight has sparked a meaningful conversation between legal philosophers, legal sociologists and law scholars. We’ll only really move forward if we dare to bridge those disciplines. That combination of approaches would, for example, have been valuable in the childcare benefits scandal. There it became clear that the legal safeguards of the rule of law were not enough to prevent wrongdoing. This could have come to light earlier if we had examined the underlying values. And there was already a basis for that. In legal philosophy, the idea of a ‘responsive rule of law’ had existed for years; that the government should listen more to citizens. It simply was not on the radar of people working mainly in the legal or empirical field. That is why this connection of perspectives is so important.”