Foundational Doctrines and Techniques of International Legal Argumentation
- Elgar International Law series
Chapter 6: Methodology
This chapter is premised on the idea that methodological choices are most conducive to the persuasiveness of legal arguments and thus play a very central role in the social validation thereof. After formulating some general considerations on the relationship between theory and methodology as well as the social constraints on methodological choices (I), this chapter offers a handful of critical observations on methodological debates in contemporary legal studies (II). The following sections discuss the relation between methodology and theory as well as the concept of the methodological package (1), the freedom to choose, customize and use methodological packages (2), the social constraints on methodological choices (3) and the possibility to evaluate methodological choices from a functional and social perspective (4). The following observations are premised on the idea that it is vain to seek to distinguish legal methods and theories of law, for none is really independent from the other. Theories of (international) law come with certain methodological moves while the various sets of legal methods found in the literature and the practice imply and presuppose certain choices in terms of theory of law. Said differently, the choice for a given concept of (international) law involves the adoption of certain investigative and conceptual methods while the choice for certain methods can only be evaluated within the framework of certain theories of law. This means that the theories of law and methodology cannot be estranged from one another and, thus, cannot be thought about and discussed separately.
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