Once more on legal scholarship

Marco Almada

Marco Almada

— 8 min read
Once more on legal scholarship
Photo by 🇸🇮 Janko Ferlič / Unsplash

Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! I was planning to write a newsletter last week, but a few things got in the way. Even though I had a wonderful time at the UACES Annual Conference, I came back somewhat ill, so my brain was barely functional for a few days. Once it got minimally back into shape, most of my energy went into finally submitting a book proposal based on my PhD thesis. As a result, it was only now that I could get my otters in a row to finish a draft post.

Today, I want to follow up on my discussion of legal scholarship as a knowledge-producing practice (the next issue will be on law and tech, I promise!). But I once again got carried away with speculation, so readers less interested in these forays into philosophy will find some reading recommendations and academic opportunities before my essay on research programmes in law. In the end of the newsletter, as usual, you will find an adorable otter. With that said, let's move on!

Things you might want to read

Opportunities

Disclaimer: as usual, I am gathering these links purely for convenience and because I think they might be of interest to readers of this newsletter. Unless I explicitly say otherwise, I am not involved with any of the selection processes indicated below.

The conference Empirical Perspectives on European Law will take place in Umeå, Sweden on 22-23 January 2026. Abstracts are due by 15 September 2025.

On 19 September 2025, Mitchell Travis (Leeds) will give an online talk on science fiction as a legal research method for examining the futures of law. Free registration at the Max Planck Law website.

The symposium Vulnerability and the Law: Multidisciplinary Perspectives will take place in Maastricht on 14 November 2025. It will feature three tracks: "Vulnerability and Climate Change", "Vulnerability and Digitalization", and "Vulnerability and the Responsive State". Abstracts to them are accepted until 22 September 2025.

IE University’s School of Politics, Economics & Global Affairs seeks applicants for a tenure-track faculty Assistant Professor in Security Studies. Applications are due by 6 October 2025, with an envisaged start date of 1 September 2026. They also have open positions at the same level in International Political Economy and Comparative Politics, so check them out if you work on those topics instead.

Dr. Seda Gürses and prof. Linnet Taylor are recruiting a postdoc to work on the Impact of Computational Infrastructures on Public Institutions and Administration of Justice. Applications are due by 12 October 2025 for a two-year contract.

The 2025 Common Market Law Review Prize for Young Academics accepts submissions on any EU law topic (up to 10,000 words including footnotes). Authors should be 30 or under, or have not completed their PhD more than 3 years ago. The winner gets a prize of 500 Euros and publication in the journal. Submissions are due by 15 October 2025.

The European Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs is organizing its yearly research conference on the EU Single Market, which will take place in Brussels on 19 March 2026. Abstracts are due by 31 October 2025.

The interdisciplinary Controversies of AI society conference will take place at Copenhagen Business School, Denmark, on 9-10 April 2026. Submissions of abstracts (up to 500 words) or full papers (up to 8,000 words including references) are invited until 1 December 2025.

Are there research programmes in law?

A few posts ago, I mentioned that I am not a big fan of the notion of "legal science". Its usage often denotes an attempt to try and come up with a supposedly rigorous method for legal scholarship, which would allow it to be a "proper" discipline. My objection to this idea does not come from a belief that anything goes in legal scholarship; in fact, I am a firm believer that not only we can distinguish between good and bad scholarship, but most legal scholarship falls in the second category.[1] It comes, instead, from pragmatic reasons, such as the fact that all too often the supposedly more rigorous work that comes from the use of those methods in the law falls short of academic standards both in law and in their disciplines of origin.[2] Attempts to "scientify" legal scholarship also tends to rely on a highly idealized of what people are supposedly doing in the more rigorous disciplines, and as such they offer less-than-adequate guides for action.

This lack of engagement with actual science (or even actual discourse about science) is something I see as a missed opportunity. Even if you agree with me that what a legal scholar does is not science in the narrow sense of the word, and that broadening that sense brings no particular advantages, there are still some similarities between scholarship on law and what is done in scientific disciplines. In particular, I think that reflections from the philosophy of science might provide us with good ideas to think about the outputs of legal scholarship at a more abstract level.

For example, let's look at the notion of research programmes. As per the ever-trustworthy Stanford Encyclopedia of Philosophy, a research programme is a cluster of theories, which can be divided into a hard core and the auxiliary theories surrounding that core. Theories belonging to the core of that research programme are thought to be irrefutable, while the auxiliary theories are less stable, but provide grounds for making affirmations about the world. So, if the research programme offers predictions that fail to match observations of reality, one can adjust it by making changes to the auxiliary theories rather than throwing the baby out with the bathwater.

Such a view can be useful for lawyerly meta-reflection because it invites us to think beyond individual claims to knowledge. While there is, as I mention in the next-to-last post, quite a bit of work on legal knowledge claims, I have seen much less description of how these claims go together in aggregate. Would a research programme offer a suitable description of knowledge-seeking practices in legal scholarship?

This brief discussion cannot hope to provide a definite answer to this question; instead, I am just thinking aloud to see if this idea would be worth pursuing further. To do so, I would need to address potential applications of this concept to legal scholarship, and show that viewing things in terms of research programmes adds something new to the mix. Otherwise, doing so would be little more than a parlor trick.

When Lakatos and his successors speak of research programmes, they are dealing with sequences of theories that make claims about what (a certain aspect of) the world is. If a programme's predictions eventually do not match the facts on the ground, it will at some point---though not ultimately---lose its scientific pedigree. Such a rationale cannot be immediately transposed to legal scholarship.

Transposition is complicated by a series of factors. First, one might wonder whether there is such a thing as a construct in legal scholarship that would correspond to scientific theories. At first glance, my impression is that it is not particularly difficult to find this correspondence, as one can identify both "core theories" that offer explanations of the law and "auxiliary theories" that make specific predictions. For example, classical law and economics features narratives about the role of the law and the worldviews of the actors it governs, as well as narrower predictions, such as whether an emerging technology is better regulated through ex ante norms or ex post judicial decisions. At least in a first approximation, we can say that legal scholarship does rely on sets of claims about the law that can look like scientific research programmes if you squint your eyes enough.

In particular, one might take as starting candidates for legal research programmes certain "branded" lines of inquiry. Beyond law and economics, one can look, for instance, at law and political economy, digital constitutionalism and various other projects. Once we do, however, we are faced with a stark difference between such programmes and traditional scientific programmes: their normative character. All of them make claims about what ought to be the law, in light of certain assumptions, even if sometimes those claims are formulated as a statement of what the law currently requires. However, what the law is in practice depends on the practices of certain actors—such as judges or the bureaucrats in charge of enforcing law—which are guided by their own interpretations of the law. Even if one buys into the idea that there is always a correct interpretation within the legal system, the legal officer might always act in an unlawful way. It might be the case, therefore, that a research programme offers a correct[3] legal interpretation which still does not match what officials do in practice.

One might say that, in such a case, the research programme has offered an incorrect prediction. Taken to an extreme, such an approach would mean that the goal of legal scholarship is to predict what legal officials will decide.[4] This is not a view of legal scholarship I find particularly attractive, as it leaves no room for the critique of how power is exercised. But, if legal scholarship is not just an exercise of descriptive truth-seeking, the analogy between scientific research programmes and legal research programmes will likely break down at some point.

With that caveat, one might still find it useful to think about legal research programmes as somehow similar to scientific research programmes. Zooming out from the level of individual knowledge claims reminds us that it can be rational to stick with a particular set of theories even if their predictions have been falsified in practice. It also calls to mind—though not necessarily so—the collective dimension of scholarly work, as research programmes are often developed by large communities of practice, even those that are closely associated with individual leading figure.[5] Furthermore, the distinction between progressive and degenerate research programmes might offer us a good analogies to discuss what is good legal scholarship. The latter is what I meant to do today, in fact, but the post is already too big as it stands. Alas, I will need to leave that discussion for another day. In the meantime, I would love to hear your thoughts on the law as an epistemic practice.

  1. Which turns out, I believe, to be a good thing for legal scholarship as a whole. Naturally, I am not excluding my own work from this, but, to summarize that post, I believe that risk-averse legal scholarship does no favours to society. ↩︎

  2. Of course, that is not an inevitable consequence of interdisciplinarity, which can be (and is) done well in many cases. ↩︎

  3. "Correct", here, is a value-laden term, and one could have a field day just in discussing whether there is a single reference for correctness in legal scholarship. That discussion is orthogonal to the one I propose above: no matter what definition of correct one adopts, the issue still persists. ↩︎

  4. A claim that is often associated with American legal realism, though potentially as a kind of caricature. ↩︎

  5. Such as, let's say, Newtonian physics or, to a lesser degree, the negative comparative law associated with Pierre Legrand. ↩︎

And now, the otter!

an otter sitting on a rock looking at the camera
Photo by Jakub Neskora / Unsplash

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