Doctrinal methodology. Doctrinal Methodology in EU Administrative Law: Confronting the âTouch of Statenessâ 2022-10-06
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Doctrinal methodology is a systematic approach to the study of legal doctrine, which refers to the body of rules, principles, and standards that make up a particular legal system. This methodology is commonly used in legal academia, where scholars and researchers use it to analyze and interpret the law, as well as to identify trends and patterns within the legal system.
At its core, doctrinal methodology involves the use of legal sources, such as case law, statutes, and regulations, to understand and explain the law. These sources are analyzed and interpreted using a variety of methods and techniques, including textual analysis, historical analysis, and comparative analysis.
One of the key features of doctrinal methodology is its focus on the details of specific legal cases and the principles that emerge from them. This is in contrast to other approaches to the study of law, such as sociological or economic approaches, which focus on the broader social and economic contexts in which the law operates.
One advantage of this focus on specific legal cases is that it allows for a more nuanced understanding of the law and its application. By examining the facts and circumstances of particular cases, and the reasoning and arguments presented by the parties and the court, scholars can gain insight into how the law has been applied in different situations, and how it might be applied in the future.
Another important aspect of doctrinal methodology is its emphasis on logical and analytical thinking. Scholars who use this approach must be able to break down complex legal issues into more manageable parts, and use critical thinking skills to analyze and interpret the law. This requires a strong foundation in legal reasoning and argumentation, as well as a familiarity with the relevant legal sources and principles.
Overall, doctrinal methodology is a powerful tool for understanding and explaining the law. It allows scholars to delve deeply into the details of specific legal cases and principles, and to analyze and interpret them in a logical and analytical manner. While it is just one approach to the study of law, it is an essential one, and is widely used by legal academics and practitioners alike.
What Is Doctrinal Legal Research Methodology â "EltonĐĄlapton" Cover Band
Surveys, for example, were outlined and explained using appropriate tables. As Irish society has changed dramatically in recent years, the courts have been presented with difficult questions regarding whether the degree of change justifies reinterpreting a constitutional provision. Going through this sea of information, they would be able to answer all the questions related to this legislation and will be successful in bringing out comprehensive legislation. The empirical research is mainly concerned with the legal decision process, i. And more than that, collecting the right pool of information from society can be full of errors. Footnote 76 Nevertheless, despite such important contributions, a shared and stabilized doctrinal framework is overwhelmingly still lacking in EU administrative law.
According to such standards, it would be simply unthinkable for a court to be prohibited from reviewing most, if not all, points of law raised in an administrative procedure. These early building blocks have since influenced, directly or indirectly, every scholar or EU administrative law. It depends upon the nature of the research question. Footnote 80 To be sure, one would certainly expect EU administrative law to draw on the legal heritage of its Member States and adopt many of the legal principles found in their laws. It can be a problem, policy, or a reform of the existing law. It is an effective tool to judge the performance of law in society.
It relies primarily on human perception and understanding. The review of the literature is an implicit quality indicator in the doctrinal methodology paradigm. But non-doctrinal research has a wider scope and studies law in comprehensive terms. Non-doctrinal approach allows the researcher to perform inter disciplinary research where he analyses law from the perspective of other sciences and employs these sciences in the formulation of the law. Few would dispute that EU administrative law must be informed by the normative standards of EU constitutional law. Non-doctrinal research developed out of the growing need of bringing the law into the realm of realism.
Its emergence can be traced parallel to the rise of common law in the nineteenth and twentieth century. This research provides a crucial analytical foundation that will aid them in their decisions for the remainder of the case. Footnote 135 Even influential scholars like Zanobini appeared to present their own principles and concepts as if they were immutable and above changes in sectoral legislation. Common law lawyers use this term to refer to an established method of resolving similar factual or legal issues. Also, collecting primary data about some sensitive issues can be a dangerous task for the researcher.
As detailed previously, the law reform commissions have always performed this role well. It has also helped in pointing out the loopholes in existing laws and statutes. The question, therefore, must be whether the evidence, gathered from the consultations and submissions sent to the law commissions in their enquiries, is being infused into the recommendations? The law of foreign countries is increasingly becoming relevant in national court proceedings involving international transactions. While the reports are referencing legal reforms implemented and sometimes evaluated favourably in other jurisdictions, recent examination of the reports produced by the commission has demonstrated a paucity of reference to published academic commentary on the issues they are examining, and also little empirical data to back up the recommendations. Nonetheless, it has some special attributes regarding source materials and ways of approaching the problems. Footnote 121 In a nutshell, I submit that in order to do justice to the specific context and characteristics of EU administrative law, doctrinal analysis must begin from a standpoint based on two simple assumptionsâone empirical and one normative.
(PDF) Doctrinal legal research: Its methodological characteristics and relevance to modern law by Jack Fox
Consultation with the general public and stakeholders is always a key element of the inquiry process. The general unwritten principles of EU administrative lawâand, in particular, their inspiration from shared national legal traditionsâcame to be widely studied as potential factors of convergence towards a European administrative ius commune. Indeed, this approach to the law has historically been so dominant in European legal scholarship thatâespecially in continental traditionsâlegal doctrine die Lehre, la dottrina, la doctrine is often used in a third, more abstract senseâas synonymous with legal scholarship, as a whole. In two articles there was more emphasis on theory, criminology, and international law rather than an analysis of specific case law or legislation. Relevant texts, journal articles, and law reform publications are referenced where applicable to the discussion rather than brought together under a formal literature review heading. Footnote 27 Such views were relatively common across European countries.
Doctrinal Methodology in EU Administrative Law: Confronting the âTouch of Statenessâ
The risk, however, is that the scholar judges the appropriateness of the administrative law of the European Union against the exact same value choices that would be made within the context of the nation-state. A second bias is of a normative kind. The author, in fact, even suggests that the suitability and necessity requirementsâin German and EU law alikeâmerely derive from the requirement of balancing. On the other hand, when approaching EU administrative law matters, it is difficult for EU administrative law scholars to wholly abandon the expectations of justice they internalized from their native national legal culture. It would lead, on the level of legal doctrine, to defeat the very essence of the autonomy of the EU legal orderâthe requirements that EU law must be considered as a separate category from other legal systems in its own right, indivisible and the same in all Member States, and in all circumstances. It can be utilized for several other purposes as well like to help lawmakers develop meaningful and effective laws, develop fresh legal doctrines, aid courts in reaching effective and legally accurate judgments, help lawyers to interpret statutes and prepare their suits, help students in academia to set a base and many others.
Legal Research Methodology: Types And Approaches of Legal Research
See, for example, E. As most legal researchers know, this is far more difficult than it sounds. Doing so necessarily involves adopting some sort of narrative about how the new discipline positions itself in the overall geography of legal studiesâhow it defines its place amidst more established legal fields. There is perhaps no clearer example of this than the main unfinished debate in the literature for about a decade and a half. This is an insufficient explanation, especially given that, in the 1980s and 1990s, there was already plenty of case law and legislation on idiosyncratically European administrative law issuesâsuch as comitology procedures and multilevel administrative networksâthat remained comparatively neglected in the literature.
A legal provision in question or an existing law could be chosen for the purpose. Doctrinal or library based research is the most common methodology employed by those undertaking research in law. Footnote 151 However, as Nicola Lupo and Giovanni Piccirilli have rightly noted, this classic conceptual link between administrative legality and democracy is difficult to sustain under EU constitutional law. The ALRC for example has been reviewed several times since 1975. One reason is that both issues were undeniably relevant legal developments. Footnote 129 Whenever the realities that the law intends to govern are not accessible by mere intuition, or when scholars are unlikely to regularly experience their practice in person, legal research may benefit from drawing on existing literature in non-legal domains. It is a compass that determines the direction of the research.
The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law ¡ Erasmus Law Review ¡ Erasmus Law Review
All of this information which can be obtained by non-doctrinal research makes policymaking a better and easier task. Footnote 113 Inevitably, the expectations and sensibilities of justice that a scholar learns from national legal cultures seeps into her doctrinal analysis of the sources of EU administrative law. In the analytical approach, the researcher should highlight the positive aspect of the law, e. When examining each of these principles, he begins by comparing how they are enshrined in the legal orders of the Member States. What are the objectives and philosophy of doctrinal research? Footnote 154 The relevant constitutional parameters for that relationship were, in essence, the fundamental rights of citizens against the state and the constitutional provisions drawing boundaries between the administrative and the remaining branches of government. Public consultation constitutes a non-doctrinal method and as such is interdisciplinary in its approach. It has been the dominant strategy for conducting socio-legal research.
