Revitalizing Paradigms: Exemplars in Legal Research and Education

Abstract

It seems to have been the paradigm of legal theory of the twentieth century: the study of law from the perspective of the judge’s office. In the first half of the cen‐ tury, legal theorists such as Geny, Holmes, and Scholten criticized the dominant formalistic accounts of law by thoroughly analyzing the legal reasoning processes. In this respect, the judge’s office has been considered to be exemplary for legal scholarship as such, for it is in the figure of the judge that all constitutive ele‐ ments of the legal system come together: authority and process, rule, facts and decision. This paradigm proved to be a fruitful one, as the judiciary remained the focal point of legal analysis for the next generation of legal scholars. MacCormick, Dworkin and Robert Alexy, to mention some of the most influential theorists, all take the perspective of the judge as the proper starting point for the construction of a theory of law. The judge’s perspective is considered to be exemplary for the legal scholar, albeit we still need scholars to reveal all characteristics of the legal mind as exemplified by the judge (compare Dworkin’s Hercules and Posner’s How Judges Think). In this respect, Maarten van Wel’s contribution to this second issue of Law and Method is most opportune, as he describes the raio-training – the training that Law School graduates undergo in order to become a judge – from an internal point of view. One might expect that an important part of the training consists in expounding the legal methodology or standards of legal adjudication that are char‐ acteristic for the judiciary. Interestingly, Van Wel’s account reveals that becoming a judge is not so much a matter of mastering a technique. Rather, it is a process of being initiated and disciplined in a culture. During the training, it is not a set of methodological rules – and instructions when and how to apply them – that are central, but the practices of senior judges. The judges serve as role model, that is, as exemplar, for the novices. The training has been completed successfully only after the novice has internalized the behavioral norms of the seniors, first through copying, then by internalizing the behavior of the judges. Van Wel’s account supports a recent claim, made in the wake of Kuhn’s notion of the role of paradigms in science: the claim that scientific research is driven by per‐ ceived similarity to an exemplar, rather than by following rules. According to this method, it is not a set of methodological rules – and instructions when and how to apply them – that are central, but the practices of legal practitioners. According to Thomas Nickles (2000), the most interesting methodological feature of Kuhn’s The Structure of Scientific Revolutions (1996) is his account of problem-recognition