Doctrinal and empirical perspectives on preliminary references to the European Court of Justice : separate worlds unanswered questions

Abstract

European legal scholarship is struggling to determine how doctrinal and empirical legal research should interrelate. Although ideal scenarios of mutually beneficial exchanges have been sketched, the reality seems to be that both fields operate more or less in isolation. Against this background, this article develops two main claims, using research on preliminary references to the European Court of Justice as a case study. First, it provides further evidence that doctrinal legal research indeed does not engage with relevant empirical legal scholarship. This is problematic because, as demonstrated, the commonly deployed teleological reasoning in doctrinal legal research posits not only normative claims, but also empirical ones, although the latter often remain insufficiently substantiated. Second, it is argued that the lack of engagement from doctrinal legal researchers with empirical legal scholarship also raises concerns for the latter. It will be shown that empirical legal research requires a sound doctrinal legal basis. The engagement and verification by doctrinal legal scholars is therefore quintessential for the development of the empirical legal field as well.