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4 Erasmus L. Rev. 1 (2011-2012)

handle is hein.journals/erasmus4 and id is 1 raw text is: INTRODUCTION: THE FOUNDATIONS OF
A EUROPEAN LEGAL METHOD
Sanne Taekema
The methods of legal scholarship today are not self-evident. There are various reasons for
the growing self-consciousness of legal scholars about their methodology. One of these
is the internationalisation of legal research, which among other things has generated
a change in the culture of legal publication towards peer-reviewed journals with
stricter norms for methodological justification. Another reason is the weakening link
between academic legal scholarship and national legal practice, which raises questions
about the identity of legal scholarship as something distinct from legal practice and
the extent to which methods define legal scholarship. A third reason is the popularity
of interdisciplinary research in law, which gives lawyers reason to compare their own
methods to those of other disciplines.
In many respects, the debate on legal method takes its cue from American debates
about the character of legal research and the directions to be taken. This is visible, for
instance, in the call for interdisciplinary research and in the still growing popularity of
law and economics, both of which started in the American academic world.
However, there are also distinctly European developments, many of which we
can connect to the Europeanisation of law in the context of the European Union. The
expansion of the European Union has renewed the interest in the legal cultures of
European countries, giving rise to comparative law research in the European context.
In private law, ambitious projects abound proposing, for instance, pan-European legal
norms of contract law.1 These themes involve exploring the differences and similarities
in European legal systems and their cultural contexts.
In this issue of Erasmus Law Review, we take a step back from the study of the legal
norms to look at European legal scholarship. The methods of legal scholarship are an
underlying factor influencing the diversity of developments of legal systems. The divide
between common law and civil law is not only visible in the particularities of the law
in practice, but also in differing methodological approaches. For some comparative law
scholars, the different style or mentalitJ of the common law and civil law approach is
reason to be sceptical of all attempts to integrate law in Europe.2 The idea of this issue
is to approach the possibility of a common European legal method with an open mind,
with no prior commitment to either belief or scepticism.
To that end, we present general reflections on the history and present character of
European legal scholarship. The central aim of the issue is the identification of common
strands in the heritage of European legal scholarship that could serve as starting points
for a common legal method in Europe. This question is approached from two angles,
namely by studying the historical development of legal scholarship in Europe and by
studying the philosophical basis of legal method.
Looking at legal method from a historical perspective, the acknowledged common
thread of legal scholarship in Europe is the study of Roman law. In his contribution,
Tammo Wallinga takes this as his starting point. However, he argues that Roman law
was not the only common core: canon law was a second important component of legal
scholarship that served to develop general legal concepts, accompanied by moral theology
and the idea of natural law. Wallinga shows how legal scholarship in the universities on
the European continent developed as a series of attempts at systematising law, mainly
by applying logical and critical methods to the texts of the Corpus Juris Civilis and
Corpus Juris Canonici, but also by criticising Roman law with the help of natural law
principles.
1 See, for instance, the EU Commission's Green Paper of 1 July 2010 on policy options for progress
towards a European Contract Law for consumers and businesses, COM (2010) 348.
2 Pierre Legrand, 'Against a European Civil Code' (1997) 60(1) The Modern Law Review 44 at 45.

www.erasmuslawreview.nl Erasmus Law Review, Volume 4, Issue 1 (2011)
© SANNE TAEKEMA

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