Gabriel M. Lentner
In 1935, Felix Cohen predicted an empirical turn in legal scholarship in one of the most-cited US law review articles ever written. And more than 100 years after the publication of his ‘The Path of the Law,’ Oliver Wendell Holmes was right after all that ‘[f]or the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.’ This time, empirical scholarship in international law might really be the next big thing. More and more scholars are interested in the ‘social antecedents and consequences of judicial decisions’ along with the effects of law and legal institutions on individuals and societies more generally. To inquire into those, legal scholars necessarily have to adopt empirical methods and get involved with sociology, psychology, economics and political theory.
The Promise and Perils of Non-Doctrinal Research Methods
Edited by Rossana Deplano
Law and Practice, Second Edition
A latecomer to the big data boom, international law scholars spare no time in catching up with the big data phenomenon that promises to revolutionize how knowledge is produced. Leading journals on international law in recent years have devoted increasing space to publish data-driven scholarship. These research projects have made a commendable contribution to constructing publicly accessible databases that can be used to investigate a wide range of topics and to promoting more systematic analysis of international law. The data-driven approach proclaims that it brings a number of benefits to the study of international law. For instance, the datadriven approach enables pattern identification, improves causal inference and prediction and facilitates theory development. The data-driven approach also claims the advantage of overcoming the methodological flaws in doctrinal research such as imprecision, subjectivity and anecdotal evidence. With increasing numbers of datasets becoming available and new analytical tools emerging, it has been declared that ‘we are entering the data-driven future’ of international economic law scholarship. The calling to overhaul the classic doctrinal method implies an identity crisis of international law as a discipline. The doctrinal approach to international law is ‘venerable and vulnerable’ as the competing empirical approach is gaining momentum. The big data boom is pushing the turf war between the doctrinal method and the empiricism-oriented interdisciplinary method to a more centered position. Does the future of international economic law scholarship lie in the data-driven method? This chapter explains why we need to take a critical view of the data-driven approach and argues that the data-driven approach is unlikely to fulfill its bold promises of transforming international economic law scholarship. It first explains why international law scholarship embraces the data-driven approach in its empirical turn and surveys the method’s recent application to international economic law (8.2). Despite its popularity, the data-driven approach has proved to be misleading and of limited use for social science in general and international law research in particular (8.3). Among the various pitfalls, the data-driven international law scholarship often relies on flawed measurement devoid of theoretical underpinning (8.4). The chapter then proposes an alternative approach that bridges doctrinal analysis and the empirical agenda and demonstrates its application to the study of regulatory space under international economic law (8.5). Section 8.6 concludes.