Pervasive Legal Instrumentalism and Scholarly Herd Behaviour in Law: A Short Reflection on van Gestel & Micklitz (2014)

In their interesting paper "Why Methods Matter in European Legal Scholarship" (2014) European Law Journal 20(3): 292-316, which I read following Steven Vaughan's recommendation on twitter (@lawvaughan), Rob van Gestel and Hans-Wolfgang Micklitz write a compelling criticism against the instrumentalisation of law and legal research (ie the excessively policy-driven approach to legal research that mixes up normative and empirical questions), not least because:
"[it] decreases the attention for methodology, for theory building, and for keeping enough professional distance to one’s object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications".
Indeed, the part of their paper that I find really interesting (and brave) is the discussion on the risk of herd behaviour in legal research, where they warn about the risks of uncritically focussing legal research on 'hot topics' and the items in the agenda of policymakers/regulators (such as the European Commission) or financing/sponsoring bodies, instead of pursuing an independent ranking of relevant topics with intrinsic research/doctrinal value (pp. 305-307)--and which I remain convinced definitely supports their argument in favour of raising the methodological awareness in European doctrinal legal research.
In short, they submit that "the best response to growing heterogeneity of legal sources should be matched with a strengthening of theoretical and methodological components, where possible drawn from the common European heritage in legal theory and spurred by transnational scholarly legal communities" (p. 312). Moreover, they formulate some broad implications of their proposal and launch some open questions, which they intend to focus future debates about (the specifics of legal methods), particularly in view of the Europeanisation of legal education (see some related comments here).
I agree with them in that methodological discussions about legal research are becoming of paramount importance and that it is fundamental to base any piece of legal research on a methodology that is not limited to the very narrow confines of (classical) black-letter legal analysis. This is particularly important if one is to embark into any sort of normative recommendation, which requires a benchmark of underlying values and evidence that law cannot provide.
Personally, I find the interaction between law and economics particularly important and I have some specific views as to what sort of methodology should be used in the study of European economic law [see A Sánchez Graells, "A Short Note on Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law" (2011)]. Ultimately, I praise and share the words of O Wendell Holmes in "The Path of the Law" (1897) 10 Harvard Law Review 457:
"I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics".
This is not to say that economics should drive, control or even dictate the objectives of legal research, nor that efficiency must necessarily be accepted as the ultimate normative value. However, legal research that disregards economic theory and its insights and (willingly or inadvertently) runs against them will have a very limited (if any) value. Moreover, the same is equally applicable to other social sciences and, as van Gestel & Micklitz stress
"this should not imply that we want to turn law students [or law scholars, for that matter] into amateur social or political scientists or economists, but they should at least be able to understand (some of) the language and methods that other (social) sciences apply in order to learn more about the value, validity and reliability of non-doctrinal research methods and techniques" (p. 315).

In any case, beyond the specifics of the methodology employed and the field of (other) science considered more relevant in order to achieve informed and sound outcomes-- which surely needs to be tailored to the specific research question that one attempts to answer--I could not stress enough the importance of having A sound  methodology when one undertakes legal research. In that regard, I fully share and welcome van Gestel & Micklitz's call for further discussion. As they say in their paper, to be continued...

The Future of European Legal Education -- Comment on Maduro's views

Prof. Miguel Poiares Maduro has published an interesting piece on The Future of European Legal Education, where he identifies some challenges derived from a tension between law as legal practice and law as science and highlights how those challenges can become an opportunity to reform legal education. 

In my view, his critical analysis is mostly accurate and supports his (relatively implicit) claim for a study of law in context, following the 'classic' proposals of Weiler (with whom Maduro has been working closely in related academic projects) and Snyder, who 23 years ago stressed that 
So far European Community law has been conceived mainly as 'black-letter law' [...] it is time to draw upon perspectives from other social sciences and to move in new directions. We must place European Community law in its social, economic and political context. Only in this way can we achieve the deeper and broader understanding—both practical and theoretical—of European Community law [F Snyder, New Directions in European Community Law (Law in Context) 30 (2nd edtn. 1990)].
Some of this certainly not-so-new worries go beyond Europe and are echoed by the work of the American Bar Association's Task Force on the Future of Legal Education, which is also concerned with the challenges that legal education faces as a result of the rapid and substantial changes in the legal profession, legal services, the national and global economy, and markets affecting legal education.

The issue is, therefore, of high currency and of global relevance, and deserves some good thought. In that regard, I think that it is remarkable that one of Maduro's main claims is that
These changes [derived from increased global economic and social integration] are bound to challenge not only the content of the law but also how it needs to be taught. This context of legal pluralism and legal miscegenation requires different hermeneutics and the interaction between legal cultures, which is triggered by the Europeanisation of the law, will confront each national legal culture with many of its unarticulated assumptions. Change in what you study is often the fastest way to break path-dependencies on how you study (p. 456).
While I agree that these global aspects need to be understood and mastered in order to become a well-rounded lawyer (be it in practice, be it in the academy, or anywhere in between), I remain skeptical that such a 'global' or 'delocalised' approach can be adopted from minute one in anyone's legal education.

Not to sound parochial, but I think that law is and will always be a jurisdiction-specific phenomenon (in our case, EU+Member State-specific) and I doubt that you can understand the very complex issues of the global legal reality if you have not first been (solely and thoroughly) trained in the law of one specific jurisdiction. 

This does not mean that legal studies throughout the EU need not be more 'Europeanised' (as, indeed, restricting EU law to a self-standing module is no longer a sensible option), but I think that it raises the issue that before you can engage in highly sophisticated comparative and contextualised legal analysis, you need to have a deep knowledge of a (self-contained) domestic system. As the saying goes, you must learn to walk before you can run.

Therefore, I would agree with Maduro's diagnosis and recommendations for the development of better postgraduate legal education programs, but I think that extending them to initial or basic legal studies may overshoot the mark. Maduro himself hints at this by the end of his contribution (p. 461), which maybe would have required some clearer disclosure in his general criticism to the development of legal theory.