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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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Humans in law’s grammar

Ernst Hirsch Ballin

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In Western traditions, everything about law ultimately centres on humans; this is what defines the nature of legal research. Both the definition of law’s object – a specific form of human language – and its purpose – creating trust about behaviour in human relations – reflect this. Legal philosophy is necessarily rooted in philosophical anthropology. Against this backdrop, we will in this chapter outline methods of critical and fundamental research concerning apparently clear legal concepts and rules pertaining to the core of law’s humaneness. In doing so, we will not shrink from the question of whether narrowing law to interpersonal relations conceals abuses of nature and the earth.

The humaneness of law expresses itself in the notion of personhood, which is one of the core elements of legal grammar as we know it. Traditional jurisprudence has rarely turned the meaning of personhood into a problem, regardless of its having undergone revolutions in the form, for example, of the abolition of slavery, the emancipation of women and the recognition of human rights. This history is continuing, as evidenced by the person/thing divide, on which we elaborated in Section 2.5, now no longer being as self-evident as it was before the twenty-first century. More than anything else, the transition to the Anthropocene is hollowing out the man-in-world template of legal grammar.

This chapter begins, in Section 5.2, with an analysis of the primary feature of personhood in legal grammar, i.e. legal subjectivity, which underlies a person’s – potentially active – involvement in legal relations....

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