The Mind and Method of the Legal Academic

The Mind and Method of the Legal Academic

Jan M. Smits

Jan Smits assesses the recent turn away from doctrinal research towards a more empirical and theoretical way of legal investigation and offers a fresh perspective on what it is that legal academics should deal with and how they should do it. The book also considers the consequences which follow for the organization of the legal discipline by universities and uses this context to discuss the key questions of the internationalization of law schools, quality assessments, legal education and the research culture.

Chapter 3: Methodology of normative legal science

Jan M. Smits

Subjects: law - academic, comparative law, legal philosophy, legal theory, research methods in law


How does one determine what one is legally obliged to do? It is clear that, in the view of legal scholarship that has been defended above, this question cannot be answered by simply relying on the authority of legislatures and the courts. What then, are the factors relevant to answering this question? This chapter argues that the core of the normative approach is that there is not one answer to what legally ought to be. If the law provides rules for a society and the views on how to regulate this society differ – which is necessarily the case – there must also be different views of what ought to be. The academic-legal method must therefore reflect this important insight. It means that legal science is not about physical reality but about the world of ideas. It is a discipline in which arguments for and against various possible solutions to legal problems are identifi ed and thought through. This makes the legal discipline pre-eminently argumentative.

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