'Mapping Doctrinal Methods' by Jason N E Varuhas in P Daly and J Tomlinson (eds), Researching Public Law in Common Law Systems (Edward Elgar, 2022) offers
an account of doctrinal legal method.
Doctrinal legal method is often presented as a single methodology. However, the umbrella term ‘doctrinal method’ can be shown to incorporate several methods which are distinct, but linked by a common concern to state what the law is and to understand the law on its own terms.
This chapter identifies and elaborates upon each of these methods. Listed in order of increasing sophistication, they are: (i) description, which may for example involve summarizing a case; (ii) derivation, which involves distilling legal propositions from legal materials; (iii) systematization, which involves organization of interconnected legal propositions into categories, which form part of a wider system; and (iv) interpretivism, which involves interrogating normative justifications which explain legal propositions or categories, and refining one’s account of those legal phenomena by reference to those justifications.
Accomplished pieces of doctrinal legal scholarship will deploy all of these methods. Each successive method will involve use of the former method(s). Thus, derivation will necessarily involve description. Systematisation will necessarily involve description and derivation. And interpretivism will incorporate the other three methods.
It is also the case that each successive method is more sophisticated and liable to offer deeper insights into the law. Thus, interpretivism is the highest form of doctrinal method, involving interrogation of the normative foundations of given legal propositions or fields, but it is also dependent upon the other three methods.
The chapter first introduces the idea of doctrinal method, and then goes on to map the four methods. The chapter’s focus is upon public law, but the methods identified are equally applicable to any legal field.
Ultimately, the chapter argues that the path forward for doctrinal scholars involves greater attention to the deeper normative commitments embedded in the historic system, and which explain public law doctrines and fields. Such mid-level explanatory theory is crucial to a complete understanding of doctrinal public law, and to coherent judicial decision-making and legal development.
