16 August 2015


'What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research' by Jan M. Smits seeks
to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It argues that legal doctrine serves the three main goals of description, prescription and justification and makes clear that many methodological choices have to be made in order to pursue these goals. One important finding is that legal doctrine reflects the normative complexity of the law: it offers detailed and sophisticated information about how to deal with conflicting arguments. Stripping the law from this practical knowledge by reducing it to general principles or policies, or by trading it in for economic or empirical analysis, is not helpful. In addition, the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of analysis of law (such as economic, comparative, empirical or behavioural work). All this contributes to carving out the proper place of legal doctrine in current legal scholarship.
Smits argues
Doctrinal legal scholarship finds itself in an uncertain state. On the one hand, legal doctrine and a focus on the systematic elaboration of rules and principles of the positive law are no longer very much en vogue and are looked upon with suspicion. This is not only true for the United States, but is increasingly also the case in various European countries. On the other hand, this development has been lamented for being at odds with what legal scholarship should be really about. Even in American legal academia, so much characterised by theoretical and interdisciplinary work, there is a continuing concern about the decline of the doctrinal method, expressed by authors as diverse as Richard Posner and Harry T. Edwards. In Europe, despite fierce criticism, traditional doctrinal work still seems to be the most important type of research in which legal scholars engage. Many even see the ability to do quality doctrinal work as the most distinctive feature of a good legal academic or lawyer.  The doctrinal approach has therefore been described as ‘mother’s milk to academic lawyers’  as the method  through which students learn to ‘think like a lawyer’ and even as the ‘nerve centre’ of legal science.  
The aim of this paper is to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It has been observed time and again that despite the persistence of this type of research, we are insufficiently aware of its exact nature. There is little doubt that the doctrinal approach provides a separate mode of thinking about the law, but both its proponents and critics seems too little aware of its foundations. This calls for a better understanding of what doctrinal work in law is really about. The oft-heard counterargument that the only reason to do this would be for the benefit of outsiders, while legal academics themselves know very well what they are doing, cannot be accepted. Even if it were true that doctrinalists know what they do, this knowledge is only very implicit. Hence, I also do not believe that it is impossible to ‘demystify’ doctrinal reasoning. 
This is not the place to go at length into the reasons for the asserted decline of doctrinal work.  These reasons are complicated and not only have to do with changing perceptions of what legal research should be about, but also with changes in university governance. It seems that doctrinal work is under attack from at least three different angles: it is considered too provincial from an international perspective, too narrow from an interdisciplinary perspective and not creative enough from an academic perspective. In other words: mainstream legal research should become less national, less one-sided and less oldfashioned. The consequence of giving in to these objections, leading to a decline of the importance of legal doctrine, will necessarily be that the intricate link between legal academia and legal practice weakens.  
Although this may be self-evident, this paper does not argue that the doctrinal approach is the only relevant, or even the most important, way of doing legal research. Legal scholarship can consist of much more than only doctrinal work. However, the following does not only show that the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of  analysis of law (such as economic, comparative, empirical or behavioural work), it is also claimed that the bad reputation of doctrinal work is undeserved. This requires scrutiny of what we mean by legal doctrine (section 2), as well as an investigation of its aims (section 3) and methods (section 4). Section 5 concludes.
In attempting a definition of  Legal doctrine Smits comments
It is surprising that, while the nature of comparative, economic and empirical research in law is widely discussed, this is not the case for doctrinal work. Although any jurist has some idea of what legal doctrine is about, it is more difficult to define it. Terms such as legal doctrine, black letter law, formalism, doctrinalism and legal-dogmatic research  are all used to denote (the product of) a similar approach towards the law, be it with some national variations.  It is probably best described as research that aims to give a systematic exposition of the principles, rules and concepts governing a particular legal field or institution and analyses the relationship between these principles, rules and concepts with a view to solving unclarities and gaps in the existing law. This doctrinal approach is largely identical among the various subfields of the law. Although originally developed for private law, it was taken over by scholars working in constitutional and criminal law (and other fields).  Three elements in this description deserve separate attention. First, it is an essential feature of the doctrinal approach that it adopts an internal perspective: the doctrinalist places himself inside the legal system. This was already noted by Oliver Wendell Holmes  and repeated time and again by others in both the common law and the civil law tradition.  The legal system is not only the subject of the inquiry, it also provides the normative framework for analysis. The separate discourse that results from this does not need anything outside of the law to be carried out.  Put otherwise: in the doctrinal approach the law is intelligible in its own terms. This remarkable feature of doctrinal work allows legal scholars to speak as if they are judges or legislators and to address these official lawmakers on their own terms, suggesting alternatives for the outcomes they reach. It is also reflected in the law curriculum, which is essentially about teaching students to work as a judge, legislator or lawyer and in fact make a decision in concrete disputes. This ‘unity of discourse’ does not exist in other disciplines, where it would be unthinkable that the academic would make use of exactly the same terminology as the object of his study. Thus, the biologist describing the behaviour of the manatee does so in his own academic language and not in that of the manatee itself. Likewise, the sociologist studying the banking profession does not have to know how to make (or lose) money himself.  It can well be argued that it is exactly this internal perspective that turns legal scholarship into an autonomous discipline: as soon as it starts to adopt an external (economic, sociological, historical, etc.) viewpoint, there is no longer a legal approach to the problem in question.  
It must be emphasised that this does not mean that we cannot debate about the sources that should be taken into account in this internal discourse. There will be consensus about the need to incorporate the ‘official’ sources of national legislation and case law, but not about the need to also involve e.g. European and international sources, private regulation, etc. Many choices need to be made in order to select the relevant sources. It will be seen in section 4 that it is inter alia these choices that affect the extent to which doctrinal research is original or not.  
Secondly, it is crucial for the doctrinal approach that the law is seen as a system. It would be a grave misunderstanding to regard legal doctrine as a mere description of existing legislation and case law. It requires the organisation and reorganisation of the products of the institutions officially tasked with creating law into coherent principles, rules and concepts before we can speak of doctrine.  Or, as the Council of Australian Law Deans states: ‘Doctrinal research, at its best, involves rigorous analysis and creative synthesis, the making of connections between seemingly disparate doctrinal strands, and the challenge of extracting general principles from an inchoate mass of primary materials.’ All relevant elements are thus fitted together into one working whole, resolving internal inconsistencies among seemingly contradictory materials. The law is only a system because of the explicit choice to consider it as such, by treating principles, cases and concepts as signs of an internal intelligibility.   
It will be seen in section 3 that this systematising approach can serve different goals, including the intelligible description of law and the steering of its application. Here it must already be accentuated that, again, doctrinalists have to make many choices regarding the method of systematisation. There is not one way of doing this.  
The third essential feature of the doctrinal approach is that it systematises the present law. It is surely possible to systematise law that is not applicable, such as the law of the past or a foreign law, but this would not qualify as legal doctrine. Crucial for the legal-dogmatic approach is that it is able to accommodate new developments such as recent case law and legislation against the background of societal change. This engagement with legal practice by reacting to changes to the law by legislators and courts turns legal doctrine into a living system that aims to achieve both constancy and change in the development of the law.  This is well captured in the original meaning of the Latin term doctrina, which refers to knowledge or learning which is passed on from one generation to the next. This sets the doctrinal approach apart from the historical and comparative method, that are both geared towards the different goal of understanding how other legal systems than the positive law are best understood. This does not mean that past or foreign elements cannot be taken into account in further developing the system of present-day law, but only as part of this prevailing system.  
Any well-trained legal academic or lawyer will recognise these three common traits of the doctrinal approach. But this does not mean that there is clarity about its aims and methods. As I have argued elsewhere, the proper reaction to the asserted lack of ‘academic level’ of traditional legal scholarship (as sometimes expressed by outsiders) should not be to give up this type of work, but to further develop its intellectual foundations. There is a dire need to do so, thus to be clear about aims and methods of the discipline. The doctrinal paradigm is intuitive, if not arcane and this has severe consequences for the position of law among the other disciplines practiced at universities that are better able to market their work to funding agencies and to the outside world. The implicit knowledge that we have about legal doctrine should be made explicit.