August 26, 2015
By Dorothea Staes, PhD researcher at ULB and USL on the European Court on Human Rights’ references to external normative instruments to interpret the ECHR.
Legal scholars repeatedly struggle with and are criticized for methodological aspects of research design, not least when undertaking case law studies. A holistic approach to judicial decision-making – introducing extrajudicial disciplines and explanatory factors – has the capacity to enrich research methodology and substantive insights in legal phenomena. Legal scholars should be aware of the value that other disciplines might add while not losing sight of possible limits of their own methodological capacities in this respect.
Case selection and lessons from extralegal disciplines
Systematic case selection
Putting the method of case law analysis under a holistic focus stimulates the mobilization of methodological techniques of the social sciences. Such techniques stress the importance of a systematic selection of case law that will be used as empirical foundation for certain claims. A systematic working method prevents the risk of – whether conscious or not – picking and choosing those judicial decisions that illustrate and fit pre-established ideas. Conclusions built on hand-selected exemplary cases (ignoring contradictory cases) result from an unsystematic methodology and are prone to be distorted or incomplete, and might therefore affect a researcher’s credibility.
Exhaustive case selection
An exhaustive selection of cases reflects one option to study cases systematically. Working with an exhaustive sample implies considering all cases that fall within certain pre-defined parameters. A researcher could for instance focus on all Grand Chamber cases concerning a certain convention right, or on all cases that came out since the issuing of a ‘key case’ in respect of the research subject. Obviously, an exhaustive sample enables making quantitative conclusions (over time) offering a solid view on the prevalence, evolution and characteristics of a certain phenomenon in judicial decision-making.
Value of examining Grand Chamber cases
The presence of Strasbourg Grand Chamber cases in a sample of Strasbourg case law might be particularly valuable. We can assume that these cases, because of their specific character (deciding serious questions affecting the interpretation or application of the ECHR, raising issues of general importance, addressing complex and controversial issues possibly leading to the overruling of precedents, and containing a more abstract reasoning than Chamber cases) offer particularly rich information on, for instance, techniques of legal reasoning and the impact of decision-making on human rights development.
Substantive insights enriched by extralegal disciplines
A holistic approach to a legal study introduces methodological insights with regard to case selection. In addition, it raises awareness of the relevance of extrajudicial factors when describing and explaining certain phenomena observed in the Court’s case law.
Relevance of extrajudicial factors
Let us take the example of the ECtHR’s voluntary use of external normative instruments to interpret the ECHR. Such a practice of external referencing in Strasbourg decision-making is in the first place a judge-made enterprise. Shedding light on how and why Strasbourg judges undertake comparative engagements is therefore a particularly valuable undertaking. External references, which might influence the development of human rights law, are not explained by legal factors only; a comprehensive substantive understanding of the topic also requires considering extrajudicial elements.
Evidence indeed indicates that background, preferences, ideology and sociopolitical environment of judges play a central role in light of explaining (variation in) decision-making patterns in general, and external referencing in particular. Voeten’s research, for example, working with variables and statistics, supports the idea that referencing practice is influenced by Strasbourg judges’ strategy or ideology.
Methodological consequences: spotlights on judicial behavior
Although the search for the rationale of judicial actions is often outside the purview of pure legal scholarship, an analysis might gain merit by putting spotlights on (the explanation of) judicial behavior in an interdisciplinary manner. Lawrence Baum offers a helpful overview of theoretical models explaining judicial behavior. An important model is the one that considers judges as strategic actors pursuing actions that maximize the achievements of their conscious goals, such as increasing their credibility and authority.
Explaining judicial behavior requires using elaborate empirical data. These can be found in the court’s case law but, particularly because legal motivations an sich do generally not offer generous information on extrajudicial explanatory factors, recourse to additional data will be of added value. Think for example of the examination of judges’ separate opinions (where judges tend to speak more openly and in a more individualized manner) and data obtained by (the delicate process of) interviewing judges.
“Every man to his trade”
While extralegal disciplines, both in their methods as in their substantive insights, are valuable for understanding legal phenomena, it is important to be aware of the limits of your methodological skills. When examining external references by the Strasbourg judges, I personally, in a spirit of ‘every man to his trade’, tempered my ambitions in respect of tracing causal links (rather than ‘correlation’) between the background and sociopolitical environment of the judges and the use of external instruments for argumentative purposes, which would require elaborate data gathering and familiarity with methods of qualitative or quantitative data analysis. This would have brought me beyond both my skills and my domain of expertise. I am a legal scholar after all, not a sociologist.
The latter observation should not hinder extrajudicial factors enriching insights in legal phenomena. Hirschl stresses that voluntary foreign citation practice “cannot be understood in isolation from the sociopolitical context within which these decisions are made, and more specifically in isolation from the positions, preferences, and beliefs of those who make these choices”. A legal researcher might thus clearly benefit from having an eye for the behavior of legal actors, as influenced by the sociopolitical environment. For instance, in understanding and assessing the use of external instruments in the Strasbourg decision-making process, one could – in accordance with strategic models of judicial behavior – take account of the judges’ aim of keeping up their credibility as a goal against which referencing practice could be assessed. A study on external referencing could equally benefit from considering political strategic motives, for instance informing the roots of selection bias in the judges’ choice of comparative materials (hypothetically prioritizing the use of Western foreign instruments). When using sociopolitical viewpoints, it is in any case helpful to keep in mind the distinction between so-called internal and external perspectives on the law (- the social sciences describe and explain legal phenomena by applying a perspective external to the law -), and to be aware of how both could be combined in an interdisciplinary legal science.
 See R.C. Black and L. Epstein, “(Re-)Setting the Scholarly Agenda on Transjudicial Communication”, Law & Social Inquiry 2007, vol. 32, n° 3, pp. 793 and p. 796 et seq.; R. Hirschl, “The Question of Case Selections in Comparative Constitutional Law”, The American Journal of Comparative Law 2005, Vol. 53, n° 1, pp. 125-155; R. Hirschl, Comparative Matters. The Renaissance of Comparative Constitutional Law, Oxford University Press, Oxford, 2014.
 E. Voeten, “Borrowing and Nonborrowing among International Courts”, The Journal of Legal Studies 2010, vol. 39, n° 2, p. 552; See also: R. Hirschl 2014, op. cit., p. 8, 14 and pp. 41-42; M. Forowicz, The Reception of International Law in the European Court of Human Rights, Oxford, Oxford University Press, 2010, pp. 367-368; P.S. Berman, “From international law to law and globalization”, Columbia Journal of Transnational Law 2005, vol. 43, pp. 485-556.
 L. Baum, “Motivation and Judicial Behavior: Expanding the Scope of Inquiry”, prepared for the Workshop on Exploring the Judicial Mind, University of Virginia, March 30-31, 2007, available on www.faculty.virginia.edu/judging/Documents/motivation.lb.pdf; M. Forowicz, op. cit., pp. 367-368; R.C. Black and L. Epstein, op cit., p. 805.
 Hirschl 2014, op. cit., p. 76.
 See, for more information in this respect: H. Dumont and A. Bailleux, “Esquisse d’une théorie des ouvertures interdisciplinaires accessibles aux jurists”, Droit et société 2010, vol. 2, n° 75, pp. 275-293.