Abstract
Empirical research into judicial behaviour and the legal system is bountiful in the United States, but few and far between in Europe. The next frontier is legal big data analysis. In this paper, I describe the methodological framework of my PhD research, in which I empirically investigate the influence of the Belgian Court of Cassation on the lower judiciary through a study of the citation of the Court of Cassation’s case law. Emphasis is placed on the theoretical foundation, research hypotheses and methodology. The normative significance of this research is considerable: the aim is to uncover the nature of precedent in a civil law jurisdiction, viewed from a hierarchical perspective, and thus, whether or not case law is considered a source of law in daily practice.
Highlights
Empirical research into judicial behaviour and the legal system is bountiful in the United States, but few and far between in Europe.[1]
Computational empirical research within legal academia is scarce in Europe, where traditional research methodology still reigns supreme.[73]
The legal empiricist has to bridge the gap between law, an area in which methodology is traditionally considered to be of little importance, and methodologies of the social sciences, which are often not transplanted into the legal domain. This might discourage those willing to venture beyond the traditional borders of legal academia
Summary
Empirical research into judicial behaviour and the legal system is bountiful in the United States, but few and far between in Europe.[1]. I describe the methodological framework of my PhD research, in which I empirically investigate the influence of the Belgian Court of Cassation on the lower judiciary. This research is very much still a work in progress, as the software to analyse the assembled data is still in an initial testing phase. I contextualize firstly my research question by briefly touching upon the Court of Cassation and the reigning theories on the authority of its case law (Section 1). I will discuss the operationalization of the research and the state of the art with regard to legal citation studies, highlighting the difficulties specific to Belgium that significantly impact my methodology (Section 2).
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