Law and the Methodology of Law: Navigating Legal Scholarship’s Unique Path

Legal scholarship has long grappled with its identity and purpose. In “Law and the Methodology of Law,” Edward L. Rubin diagnoses the discipline’s search for methodological grounding and prescribes a way forward. This blog explores Law and the Methodology of Law, examining why legal scholarship cannot simply adopt other fields’ methodologies, how its prescriptive stance shapes its practice, and why interdisciplinary engagement—especially with social science—is indispensable.

What Is “Law and the Methodology of Law”?

“Law and the Methodology of Law” refers to the study of how legal scholars investigate, Read, critique, and recommend improvements to laws and legal decisions. Unlike law reviews focused on descriptive or historical analyses, standard legal scholarship frames normative prescriptions directly to judges, legislators, and regulators. Rubin defines it by three characteristics:

• A prescriptive voice: recommending how decision-makers should act.
• A reactive approach: responding to externally generated events (judicial opinions, statutes, regulations).
• An involved stance: addressing recommendations to identifiable legal actors who can implement them.

This methodology distinguishes Law and the Methodology of Law from other academic disciplines while also creating unique challenges.

Why Legal Scholarship Cannot Mimic Natural Science or Literary Criticism

Prescriptive vs. Descriptive Inquiry

Natural science is inherently descriptive: it models an external reality beyond human control. Scientific discourse asks “what is,” not “what ought to be.” Legal scholarship, by contrast, is prescriptive—it evaluates human-made rules and suggests improvements. Unlike data generated by scientists, laws and judicial decisions are events created by conscious actors. Legal scholars react to these events, but cannot apply natural science’s descriptive methods directly.

Involvement vs. Respect

Literary criticism interprets texts with respect, treating authors as geniuses whose work deserves understanding, not improvement. Legal scholars, however, adopt an involved stance akin to an I-It relationship, believing they can enhance judicial or legislative output. This prescriptive element—telling judges or legislators how to decide cases or craft statutes—distinguishes the methodology of Law and the Methodology of Law from the nonprescriptive practice of literary analysis.

Moral Philosophy and Legal Scholarship: Normative But Distinct

Both moral philosophy and legal scholarship operate within the normative realm, yet differ in scope. Moral philosophy often addresses categorical imperatives—unconditional moral duties—whereas legal scholarship is contingent, grounded in existing legal frameworks and objectives. Lawyers ask how judges and agencies should decide within those frameworks, while philosophers debate universal moral principles. Thus, although moral ideas enrich legal debate, moral philosophy cannot replace the contingent methodology of Law and the Methodology of Law.

Social Science: The Most Promising “Law and” Partner

Rubin identifies social science as the most fruitful source for legal scholarship’s methodological needs. Social science’s descriptive core and its interpretive or prescriptive modifications offer tools to understand:

• External events shaping law (political forces, social movements).
• Effects of legal decisions (economic impacts, behavioral changes).

Descriptive Core and Instrumental Rationality

Social science aspires to describe and explain social phenomena—akin to Max Weber’s “instrumental rationality.” Legal scholarship, embodying Weber’s “value rationality,” debates desirable norms. Social science provides empirical rigor to inform that debate without dictating normative conclusions. This synergy lies at the heart of Law and the Methodology of Law.

Addressing the Macro-Micro Problem

A critical challenge is linking individual decision-maker behavior to institutional outcomes. Legal scholars recommend actions to judges or regulators who operate within complex institutions. Advances in:

• New Institutionalism (sociological study of norms and organizational culture).
• New Institutional Economics (bounded rationality and transaction cost analysis).
  help chart how individual legal actors navigate constraints and how their choices ripple through institutions. These insights anchor prescriptive legal arguments in realistic models of decision-making, enriching Law and the Methodology of Law.

Autonomy Debates: Discursive Modalities and Autopoiesis

Recent theories suggest law may be an autonomous discourse:

• Discursive Modalities (Bobbitt/Patterson): Legal argument employs six modalities—historical, textual, structural, doctrinal, ethical, and prudential. But prudential arguments depend on social science data, underscoring law’s need for external inputs.
• Autopoietic Theory (Luhmann/Teubner): The legal system self-regulates through internal communications. Yet autopoiesis functions best when legal scholars and actors draw upon social science to model external disturbances and assess legal changes.

These approaches enrich the understanding of legal discourse but ultimately affirm that Law and the Methodology of Law cannot thrive in isolation.

Best Practices for Interdisciplinary Legal Scholarship

1. Define the Normative Question Clearly: Identify which legal decision-maker the prescription targets and the policy objectives at stake.
2. Map the Empirical Context: Use political science, economics, or sociology to characterize relevant events—legislative history, regulatory impacts, social behavior.
3. Assess Institutional Constraints: Employ new institutionalism or institutional economics to model decision-maker incentives, norms, and transaction costs.
4. Integrate, Don’t Overrule: Social science insights inform but do not resolve normative debates—maintain the prescriptive voice of legal scholarship.

By following these guidelines, scholars can produce robust, policy-relevant work that adheres to the core methodology of Law and the Methodology of Law.

Frequently Asked Questions (FAQ)

Conclusion

Law and the Methodology of Law reveals that legal scholarship’s prescriptive, reactive, and involved stance demands its own methodology. Yet this methodology is necessarily thin, requiring interdisciplinary collaboration—especially with social science—to understand the events and effects that shape law. By defining clear normative questions, mapping empirical contexts, and modeling institutional constraints, legal scholars can produce insightful, policy-relevant work that honors both law’s unique methodology and the empirical rigor of the social sciences.

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