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Advanced Introduction to Legal Research Methods

Ernst Hirsch Ballin

Written by Ernst Hirsch Ballin, this original Advanced Introduction uncovers the foundations of legal research methods, an area of legal scholarship distinctly lacking in standardisation. The author shows how such methods differ along critical, empirical, and fundamental lines, and how our understanding of these is crucial to overcoming crises and restoring trust in the law. Key topics include a consideration of law as a normative language and an examination of the common objects of legal research.
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Fundamental research

Ernst Hirsch Ballin

Extract

is to demonstrate that the basics of law are such that we cannot shake them off. The reader should be aware that each section in this chapter deals with concepts that have filled volumes of works in libraries; inevitably, therefore, we have to work with characterisations that merely touch on the controversial questions raised in specialised scholarship.

This state of affairs sets the scene for the following exploration of fundamental legal research. We do not view such research as an alternative to the legal research discussed in the previous chapters, but instead as a sensible deepening and amplification of this research, with distinct methodological features.

Contrary to the dogmas of a legal-positivistic past, including these dimensions in legal research will not distort researchers’ view on the object of their research. Quite the reverse, it will allow them to penetrate law’s substance as a distinctive kind of human communication. We refer to this as ‘fundamental legal research’, which means that in this chapter we are exploring an integral part of legal research itself, still related to the lingual object that we call law. This distinguishes the subject of this chapter from various related specialisms of fundamental research, such as philosophy of law, juridical logic, legal anthropology, and the history, sociology and psychology of law (known in German as Juristische Grundlagenforschung).3

The most suitable starting point in this chapter is the embedding of all branches of law in human rights. Human rights are widely, in...

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