4.1 Introduction

EU legal scholarship has traditionally been contextual and theoretical and largely evidence-free: it is rich in conceptually developed but empirically untested claims about the origins, dynamics, and consequences of the law.Footnote ¹ It has had the autonomy and textual orientation associated with traditional legal scholarship, but with a greater tendency than most national legal scholarship to engage in wider social and political reasoning.Footnote ² Now the EU, and academic law, are both, in different ways, engaged in their own almost existential crises, and looking for new ways forward, and EU legal scholars, with their relative freedom from both tradition and methodological constraints have been agile in moving to think about these. Empirical legal studies (ELS) is developing into a part of their response.Footnote ³ It is a movement which seems to offer a methodological pathway from knowledge of the law to knowledge about the law, from doctrine to socio-legal fact, potentially enhancing both the scientific and policy impact of legal scholarship.Footnote ⁴ EU lawyers have embraced it, and in very little time it has become the new orthodoxy among emerging researchers, as standard an approach for the PhD researcher in EU law, at least in many faculties, as law-in-context once was. Yet there is a certain irony to be found in this embrace. For, on the one hand, the researchers most open to ELS are often from the more theoretically minded and contextual wing of EU law, rather than those who do more traditional court-oriented narrowly doctrinal scholarship.Footnote ⁵ Yet for the empiricist who wants to do any kind of quantitative research, it is the old-fashioned doctrinal lawyers who may be more interesting partners.Footnote ⁶ It is hard to measure the kinds of things that many of the more theoretically minded EU lawyers enjoy writing about. On the other hand, a solid knowledge of the rules can be very handy for the fact-finding empiricist.Footnote ⁷ So having invited ELS into their research groups in a spirit of adventure, curiosity, and self-interest, thinking that it would strengthen their relative position against the less ‘scientific’ practice-oriented lawyers,Footnote ⁸ the theoretical and contextual EU legal scholars may yet find that they become the marginalised, as legal doctrine and social science methods form new and practical partnerships.Footnote ⁹ The centre of gravity of EU legal scholarship may be pulled away from quasi-philosophical speculations towards what can be measured. Alternatively, EU scholars may succeed in seducing ELS into embracing more narrative and qualitative methods, colonising the movement which came to colonise.Footnote ¹⁰ Another future for EU legal scholarship may be enhanced story-telling, as free-ranging as law-in-context but with more engagement with the personal and the experienced, and not just words and ideas.Footnote ¹¹ Or, who knows, maybe the different kinds of lawyers will find a way to come together, perhaps backed by the legal profession, splitting their ideological differences to maintain funding, teaching space, status, and influence against the social scientists edging into their institutions. Professional incentives may align with an Ur-instinct to defend the academically idiosyncratic, but amongst lawyers beloved, traditional, non-empirical, art of law.

Whichever pattern dominates, the future of EU legal scholarship looks as if it will be different from the past. Two – the doctrinal scholars and the contextual scholars – may have been company, but three is a crowd, and it is hard to see how coalition-forming and alliances can be avoided, with the inevitable consequence that the practice of the disciplines involved itself changes.Footnote ¹² ELS will be important not just for what it is, but for what it does to others.

The aim of this chapter is to outline the ways in which ELS may influence the character of EU legal scholarship, suggesting that a rebalancing of the methodological community and skills within law schools can lead to a different kind of commentary on European integration. It begins by describing what scholars have seen as the distinctive characteristics of EU legal writing, by comparison with European national legal scholarship. It then moves on to the unusual and synergetic relationship of EU lawyers to European integration and to EU institutions. It suggests the EU’s need for legitimation and development as well as practical operation, have made it possible for EU lawyers to combine contextual academic scholarship with institutional and functional roles. After this the chapter introduces ELS and briefly charts its development, and the reasons why within Europe it has been very successful among EU legal scholars. Then finally it considers the way this new methodological element within the field disrupts the balance between differing communities of EU lawyers, and how this could lead to EU legal scholarship taking on a new character and role in European integration. The philosopher-lawyer, sketching normative visions for Europe’s future, may be edged out by the social scientist-lawyer, fine-tuning the functioning of the EU machine, perhaps in a reflection of the development and needs of European integration itself.

4.2 The Character of EU Legal Scholarship

Writing by lawyers about EU law has often been relatively contextual and theoretical by comparison with much other legal scholarship.Footnote ¹³ Contextual in the sense that it has been to a very large extent concerned with how the law is shaping the EU, and its wider and longer-term consequences for the fabric of life, the economy and society, as well as for the project of European integration.Footnote ¹⁴ Theoretical in the sense that legal scholars tend to use this word, meaning not necessarily that it is full of complex social or legal theories, but that it makes arguments which are broader or stranger than those which would be effective in court: theoretical in the sense of ‘not directly applicable in legal practice’.Footnote ¹⁵ It is thus more theoretical than purely positive doctrinal work, but not as rigorously committed to particular theoretical frames or methods as would be customary in other branches of social science. If doctrinal legal scholarship is largely ‘case law journalism’,Footnote ¹⁶ then more theoretical and contextual legal scholarship is journalism of a very highbrow, well-informed, and associative type.

Of course, not all EU legal scholarship has been like this, but much of the most influential has – the most well-known names, the leading journals, have often clearly been a part of a discussion of EU law that is wider than the question of what the law is, or even, in an immediate concrete sense, what it should be. EU lawyers have, like social scientists, but with a little more methodological freedom,Footnote ¹⁷ tried to consider underlying dynamics and processes and the expression of values in the law.

This relative experimentalism, this free-ranging character, has been partly possible because EU law is a new field, and one resting on many legal traditions but belonging to no single one. Despite European legal commonalities in many areas, often referred to by the Court of Justice where they can be found – and sometimes even where they cannot – the differences between the tidy legal minimalism of the Scandinavian approach, the case-based common law of the major European Atlantic islands, the formalist tendencies of Central Europe, the dense and normative philosophical ramblings of the German constitutional court, and the French haiku-style judicial decision-making have meant that there is no cut-and-paste approach available to determining how EU law should work, or be.Footnote ¹⁸ That has left it a field to be developed, with due respect to its participant traditions, but also liberated from them, a new building project. It has been possible to think further and wider, and in a more policy-based way, about the law. That has fitted the social moment: since the last world war governments and rule-makers have been expected not just to guarantee physical security and the robustness of private transactions, but also to solve social problems and maximise public happiness – to take away the risks to well-being.Footnote ¹⁹ This has also suited the European project, which, as often noted, is a law-based project, meaning that the EU has traditionally had a lot less money to spend than governments do, as well as no armies or police of its own, and so has achieved its goals by making and enforcing laws.Footnote ²⁰ EU law is, in this sense, inherently purposive and policy-oriented, demanding an interpretation in the light of goals, an invitation to treat legal text as a springboard more than a world in itself.Footnote ²¹

That project has also needed legitimation and explanation, as something almost state-like in its impact and scope, yet not a state, and lawyers have engaged to a great extent in contributing to the construction of EU founding myths, to legitimating stories about what EU law does in the context of Europe and its history and geography.Footnote ²² It is as if private law had just been invented, and private lawyers were not only engaged in thinking about disputes, but also constructing a whole philosophy of contract and tort and relations between people and showing how this was all embodied in the rules.

In short, everything has come together to give lawyers a pass to be more than experts on the rules in practice, and encourage them to engage in the widest, sometimes deepest, most creative normative speculations on the shape of Europe that they can.

This is not all to say that all European legal scholarship has been overtly Europhile. Law needs disagreement, and if in the early decades this was primarily EU lawyers kicking back against national status quos and explaining why the Member States and their legal systems needed to change and EU law needed to grow,Footnote ²³ more recently, within the EU law community there has been a flowering of differing opinions on structural questions of EU law itself: its style, its relationship to national law, its policy-goals and effectiveness, and perhaps above all, on where it should stop.Footnote ²⁴ Yet even among the more restrictive views, the approach to the EU is critical rather than hostile.Footnote ²⁵ True hard-core Euroscepticism is not very visible in legal scholarship. Rather, it is a debate within a community who largely believe in the basic idea and want to make it work.Footnote ²⁶ Lawyers have fallen under the ‘enchantment’ of EU law, and who can blame them?Footnote ²⁷ It is a radically innovative social governance project aiming, it says, to create an egalitarian, just, and inclusive society through the use of new legal tools and techniques. What’s not for lawyers to love, at least young ones not yet committed to local traditions? Which young legal researcher would not jump on this train?

4.3 Revolving Doors and Private Rooms

What is remarkable however, is that despite all this philosophical freedom, EU legal scholars have also been closely engaged with institutions and practice and have been influential in it.Footnote ²⁸ One might think that an academic lawyer has to choose between social theory and practical usefulness, and often that is the case, but in the EU legal world the two have managed to co-exist within the same career to a remarkable extent.Footnote ²⁹ This is partly possible because the number of those with detailed knowledge of EU law has been relatively small, by comparison with those knowing national law, and the EU institutions have been growing and in need of such expertise. There are also specialised training institutions in Florence and Bruges which have fed both the academic market and the institutional one and created a tightly networked community of EU lawyers.Footnote ³⁰ Alongside this, practical functions within the EU are perhaps more interesting for the contextually minded EU legal scholar than analogous functions would be in national institutions, because the EU is so fast-developing and policy-based and influential. The scholar who goes to Brussels or Luxembourg, or even to the EU liaison or implementation departments of national governments, has the chance to put their big ideas to work to a greater extent than in the more tradition-bound and embedded national equivalent functions. The EU, at least until quite recently, has still had much of the character of a startup, albeit a very well-funded one, always looking to the future and dreaming the next big dream. Member States are mature corporations at best, decaying cartels at worst.

Hence, there have been revolving doors between universities and EU institutions, and between the specialised EU functions within Member States, and for the lawyer who tires after a while of either academic theorising or policy-making there has always been the opportunity for a refreshing change.Footnote ³¹

All this has been very liberating for lawyers, creating dynamic career paths rich in both intellectual and practical possibilities, in a field which has seemed only likely to grow and develop in the future. Combine this with the fact that law is the most nationally restricted of the professions and EU law offers a way to be professionally mobile, and it is hardly any surprise that for several decades it seemed as if every PhD student in a European law faculty was doing something with EU law, even if they were nominally in a department of criminal or private or constitutional law. It was where the action and the adventures were. To think about national law without its EU law context was probably to be missing the bus, or the point.

An additionally liberating factor was that EU lawyers have formed a relatively autonomous community. Despite being engaged with issues far beyond the traditional doctrinal expertise of the lawyer, deploying and framing their legal knowledge in ways traditionally associated with politics, economics, sociology, or history, their engagement with the professional groups specialising in these fields has been limited.Footnote ³² With their own ‘law in context’ or ‘theoretical’ legal journals, and large numbers of students maintaining a community of legal scholars substantial enough to cite, and even read, each other, legal scholars have been able to develop ideas and draw normative conclusions about political, institutional, and social matters in a largely data-free way.Footnote ³³ We have been able to know that EU law is neoliberal, or solidaristic, and that the Court is influenced by A, B, or C, and to understand the power balance between the EU institutions essentially on the basis of legal texts, not having felt the need to deep-dive into whether the values expressed in such texts – on which lawyers are, arguably, the experts – are an accurate representation of the actual consequences and causes. EU law has developed an almost theological character, its normative energy in no sense diminished by the lack of empirical evidence for its claims.Footnote ³⁴ EU legal scholars are, to a significant extent, a group of legally well-informed story-tellers, who have been able to become so partly because there has been an institutional market for their legitimating and clarifying stories, and partly because there was a need for their underlying legal knowledge.Footnote ³⁵ Like good monopolists they have been able to tie the secondary, harder-to-sell, narrative product to the more marketable doctrinal one and force their customers to take both.

4.4 The Empiricists at the Door

And then comes ELS and spoils the fun. It has been growing and developing for several decades,Footnote ³⁶ beginning in the US, and is driven by several dynamics. It has been described as a process of colonisation of law by social science, and a movement of social scientists into law schools has been an important element of it.Footnote ³⁷ However, the colonisation is as much, perhaps more, ideational than it is personal. Those trained as lawyers have begun learning and applying empirical methodologies, whether they are at the beginning of their research career, or changing directions during it.Footnote ³⁸ The success of ELS is because it has something to offer both social scientists and lawyers, as well as perhaps the outside world.Footnote ³⁹

For lawyers, ELS is partly attractive because of the way out that it offers from the widely acknowledged disaffection with legal doctrinal research generally.Footnote ⁴⁰ Its inability to make findings of fact about the world beyond doctrine is seen, at least by some, as limiting its impact on policy-making, and has also led many in the university world to regard law as unscientific, in the sense that its scholarship does not conform to the theory forming-theory testing-fact pathway that is broadly standard in most fields, and to some extent also because legal scholars tend to embrace their own normativity, using it to frame and present their writing rather than merely to motivate it.Footnote ⁴¹ ELS is also increasingly, particularly within EU law, turned on doctrine itself, providing a new, more quantitative, way of studying the legal process and judicial decision-making.Footnote ⁴² This has the potential to challenge or complement, and in either case to revitalise thinking about doctrinal law, to give lawyers new ways to talk about what the law is, and how it is made. Intellectual curiosity, academic competition to achieve new insights, and the desire for influence and status beyond the narrowly legal world, all provide robust reasons for lawyers to be interested in empirical investigation of their own field.Footnote ⁴³

For the empiricists, usually social or human scientists of some sort by training – political scientists, sociologists, psychologists, or criminologists, sometimes anthropologists – the fact that law plays an increasing role in resolving urgent social questions provides a motivation to engage with the working of the legal system in more detail. ELS was conceived as ‘legally sophisticated’ empirical research into legal phenomena and systems, using traditional empirical methodology but focusing on questions where substantive doctrinal law is one of the variables.Footnote ⁴⁴

There were also institutional motivations at play. In the US, where modern ELS began its recent resurgence, it took quickest root in wealthy elite law schools.Footnote ⁴⁵ These have more internal research funding than is common in social science faculties,Footnote ⁴⁶ as well as high salaries.Footnote ⁴⁷ It is not impossible to imagine that these powerful and self-sufficient institutions seem a tempting sanctuary to at least some social scientists, if only their research could somehow be embedded in the curriculum. For elite US law schools, it was suggested that this was not unwelcome: in the fiercely competitive law school market, ELS could be a marketing tool, promising students broader insights into the world around them, and a bigger skill-set than their more narrowly trained peers.Footnote ⁴⁸ When some European national funding bodies, and a few prominent institutions, began to pick up on the ELS trend, that set off, or at least accelerated, the current wave of European interest.Footnote ⁴⁹

4.5 Stockholm Syndrome among EU Lawyers

And so a synergy was born, which has been spreading and has reached Europe with full force.Footnote ⁵⁰ EU law is one of the fields which has been most open to ELS, for a number of reasons.Footnote ⁵¹ Perhaps the greatest is the policy-orientation of EU law, which comes from its very nature, and is reflected not just in the law-making process but also in the famously purposive interpretative style of the Court.Footnote ⁵² The question what a particular legal choice will actually do, in practice, is essential even to understanding of the doctrine, so that ELS is apparently a logical addition to the lawyer’s toolkit. In a legal world where the habit of lawyers and judges has been to draw conclusions of fact using merely common sense, the lawyer with evidence may imagine themselves king.

However, there are also practical and institutional considerations. There is relatively little practice of EU law as such in national courts, so that by comparison with colleagues in criminal or civil law, the pull of the courtroom is fairly weak on EU lawyers. The Court of Justice looms large, of course, but few will be actively involved in litigation there. That releases EU lawyers from a difficult choice. For there is a methodological tension between the text-based doctrinal and rhetorical expertise which is at the heart of practice, and the empirical methods of ELS which are rarely relevant in national courts.Footnote ⁵³ That makes it hard for many academic lawyers to fully embrace ELS. It would mean pulling themselves away from practice, and the world where their status is highest and which their students and colleagues care about the most. By contrast, the EU lawyer is often looking for an alternative to practice, a way to fill the gap in real world relevance of their scholarship, since national judges use it even less than they should. If they cannot intervene in adjudication as much as their national law colleagues, ELS offers them the chance to intervene more in law-making and policy formation.Footnote ⁵⁴

Finally, institutionally and culturally, EU law is still relatively young and looking for its place in the world of academic law, or indeed social science. Relatively unbound by traditions, but also somewhat unrooted – not least because EU lawyers are often expatsFootnote ⁵⁵ – it is attractive for EU lawyers to engage with methodologies that most of their law faculty colleagues do not know about, and which open doors to them within the wider university. Their international outlook and relative familiarity with working in English – by contrast with the very local linguistic cultures of national law – made it easier for them to pick up on US ELS developments and bring them to Europe.Footnote ⁵⁶ It is no accident that some of the European institutions prominent in current European ELS, such as iCourts in Copenhagen and the European University Institute (EUI), are also prominent in EU law.

On top of this, the crisis of doctrinal scholarship has been felt particularly hard within the EU law world because it has been paralleled by crises in EU law itself, and in the EU.Footnote ⁵⁷ Certainties seem particularly vulnerable to those whose career is built on EU legal doctrines, rather than national private or criminal law. The political changes within Member States of the EU and the rise of political parties that if not always directly Europhobic, represent philosophies at odds with many entrenched EU policies, alongside the juddering of geopolitical tectonic plates make the future, or at very least the direction of the EU seem uncertain, and raise the question whether those who have been steering it, both practically and ideologically, need to rethink their approach. Legal scholars have often been critical of particular EU acts or judgments, but broadly they have shared the commitment to the agenda of openness, anti-nationalism, integration, and expert-led policies on matters such as the environment and social policy.Footnote ⁵⁸ What should legal scholars do now if it turns out that the public do not share that commitment, and are not even prepared to tolerate it? To continue developing and critiquing doctrine which embodies policies that the public apparently reject may come to feel like rearranging deckchairs on the Titanic.Footnote ⁵⁹ Defending those policies on normative grounds is one option, a principled and committed one, but this is what lawyers have been doing for decades, and apparently it has not been fully successful. Is it time for a new approach?Footnote ⁶⁰

More specifically, EU law is undergoing its own crisis.Footnote ⁶¹ The headlines concern assertive supreme courts challenging primacy and rejecting the authority of the Court of Justice, and using conservative notions of national identity to fight the implementation of EU law rules. However, perhaps even more serious is the growing realisation that EU law is not working as well as it should in more banal contexts, on the ground, at the level of national authorities and lower courts.Footnote ⁶² The assumption was always that these would gradually integrate EU law into their daily practice, and compliance would slowly but surely increase. Instead, recent scholarship as well as anecdotal evidence suggests that – although admittedly the picture is mixed, and hard to measure accuratelyFootnote ⁶³ – the lower-level effectiveness of EU law is decreasing, and many policies are not effectively implemented by Member States.Footnote ⁶⁴ EU law may start to look like a rhetorical wish-list, rather than a body of transformative hard law. Even its export success must be at risk if domestically it fails to work.Footnote ⁶⁵

What, then, is the value of commenting on doctrine that has limited, and perhaps in some Member States, no effect?Footnote ⁶⁶ This question is particularly burning in a field that is committed to policy outcomes, that is genetically purposive. The crisis of doctrinal scholarship for many lawyers arises out of frustration with their inability to establish truths about the world, but at least they have had the comfort that they could always play a meaningful role in disputes and adjudication, which in turn shape society.Footnote ⁶⁷ If EU law is not being realised at this practical level, then the need to do more than engage in word games about its meaning becomes urgent, and it is entirely logical that EU lawyers turn to empirical research so that their knowledge leads to some concrete and potentially useful result. In making EU legal studies methodologically a part of social science, it also gives EU lawyers a new academic home – a place of asylum, for the case that their discipline of origin decays or collapses beyond the point of hospitability.

Alongside this it should be noted that EU law is an attractive field for empiricists to apply their skills. It is a rich ground for the empirical investigation of how a legal system works and the causes and consequences of law. Partly, that is because the EU’s governance is more law-based than are national systems. It is also because the law that the EU uses is more institutionally expressed, more policy-coherent (at least in ambition), and more technocratic – thus evidence-based, in principle. Finally, it is because the EU legal system is young, and core doctrines such as precedent and inter-court relations are not settled. That makes them particularly amenable to extra-doctrinal examination. EU legal studies as a whole are ripe for colonisation by social science.Footnote ⁶⁸

4.6 Which Chick Will the Cuckoo Kill?

What will this mean for EU legal scholarship? Do EU lawyers understand the consequences of their engagement with ELS? Are they just adding a new skill to their collective portfolio, or are they changing the direction, the internal dynamics, and the external function of a discipline? What does the cuckoo do to the nest?

The group as a whole most open to ELS has been the more theoretically and contextually minded EU legal scholars. They are furthest from practice, most eager for academic status, more methodologically curious, more interested in using their legal knowledge to study the EU than in resolving disputes. ELS also addresses the same kinds of questions that they do, about the social consequences of law and the dynamics of the legal system, but with more data.Footnote ⁶⁹

They are also the most committed to the European project, in that they have made its development and ideas central to their careers, rather than merely the legal practice it generates. As such, they are the group most threatened by its tremors – there will always be the possibility of critique, but a loss of dynamism in the project means a loss of dynamism in their careers.Footnote ⁷⁰ By contrast, for the EU legal scholars who are already embedded in practice or in governmental institutions – for they do of course exist, even if they have not dominated the intellectual development of the field of EU law – it is easier to carry on using their legal expertise in the way that lawyers always have. Even a decaying and contested EU will generate litigation and disputes for quite some time, and if this litigation may be more national than European, and more mundane than foundational, and may no longer generate so many of the high concepts on which contextualists thrive, it will still generate the fees and case notes which are the bread and butter of doctrinal life. The lawyers will be fine. It is the contextual-theoretical scholars whose world is shaken by a Europe adrift. It is then logical that they should look for something new, something that can freshen up their methodological and conceptual gene pool.Footnote ⁷¹ Innovation and takeovers are how failing firms revive.

And so we arrive at the current situation, where many of the leading and most progressive and influential centres of EU legal scholarship have embraced ELS, and it seems to have the intellectual and institutional energy that critical, ideological, ‘theoretical’ approaches had a couple of decades ago.

This changes the internal dynamics of EU law research centres and university departments. Until recently their scholars could be distributed, like most legal scholars, along a continuum from the most positively legal – those who made scholarly arguments that could be cut-and-pasted to a courtroom – to the most theoretical, meaning those who primarily considered the general shape of the law in its political, social, philosophical, or other non-legal context. Certainly there were outliers, including some, like the new EU legal historians, who were arguably ELS scholars avant la lettre.Footnote ⁷² It must also be said that the contextualists were always diverse in the theories and disciplines that they took as inspiration. Nevertheless, the majority of those identifying as legal scholars could be placed somewhere on this line from practice to theory, and to a significant extent they tended to cluster in groups at the ends, often creating political tensions and contests for power, money, and status.

Now there is ELS. It would be misleading to represent this as a third group of scholars, for that implies clear distinctions. Rather, it is most accurate to say that where there were two dominant methodologies there are now three, and while some scholars place themselves firmly and entirely within one, others may be on the boundaries, or self-identify as inter- or multi-methodological. However, there are now three cakes to eat from.

I suggest here that given the presence of limited funds, and indeed limited students, there will inevitably be some kind of contest between these methodologies for positions in curricula, and in research, and in appointments. From the perspective of advancing knowledge they may complement each other, and ELS may be an enriching of our understanding of law. However, from the perspective of which groups of scholars and which methodologies enjoy influence and prominence, there is an unavoidable element of competition.Footnote ⁷³ Law syllabi, policy impact, research funding, and public status may not be quite zero sum, but to the extent that one group increases its role within these arenas it does diminish the role of others.

As part of that competition, it is hard to imagine how alliances can be avoided – scholars and groups with a centre of gravity in one camp will look for synergies with scholars and groups in another, strengthening their position over others. That may play out in dynamic, variable, and complex ways which only time will reveal, and which are a proper object of study for empirical scholars. Arguably, it falls within ELS, in as much as the structure of teaching and research in law is a foundational element of the working of the legal system as a whole.

As a contribution to this, it is suggested here that a question to be asked is which of these methodologies form the most natural and comfortable partnership, for if there is a clear and consistent answer to that, it may well play a major role in shaping the development of EU law institutions, and so the future of EU legal scholarship.

For many theoretical, contextual EU lawyers it seems obvious that they are the natural partners for empiricists. They represent the academic wing of EU law, and like empiricists their desire is to say something about the world, about Europe in particular, and not just about what is allowed or not. They will quite often share a background with ELS scholars to a greater extent, either having been through Florence or faculties and departments within its broad orbit, close enough intellectually to feel the warmth of its glow. By contrast, the more practical lawyers, the teacher-practitioners, are more likely to have completed their training domestically, and to be more locally embedded. Above all, perhaps, for the theoretically minded EU lawyers, ELS may seem an exciting opportunity. For this is a group who already have the answers to all important social questions. ELS could be, for them, a way to prove they are right.

For the teacher-practitioners, the doctrinalists, ELS will seem initially far from their world. They are wordsmiths, who have little affinity for numbers and have not looked at a graph since high school, and the gravitational pull that they feel is not towards Tuscany but towards the courtroom and government. Yet precisely that practical orientation gives the basis for a connection. ELS as a movement has been criticised for its policy orientation, meaning its tendency to produce research that is aimed at policy change rather than deeper understanding or new paradigms.Footnote ⁷⁴ The academic lawyer who sits on government committees and advises institutions may realise that they can use these experts, just like they might use other expert witnesses. If the wordsmith and the numbersmith – for ELS has a quantitative bias – get together they can produce practical, persuasive, influential research than will be welcomed by decision-makers.Footnote ⁷⁵ They are both fundamentally in the same business of working out what should be done next, and the very fact of their methodological difference and different expertise lays the basis for synergy on a basis of mutual respect. Each can do what the other cannot, and together they can do more.Footnote ⁷⁶

It is, however, the view of the ELS scholar which counts most, for they have the empirical methodological skills, and while some lawyers may be able to acquire these to some extent,Footnote ⁷⁷ and do autonomous inter-disciplinary or empirical research, many research projects will be multi-disciplinary, each contributing their own expertise to a common outcome, as is the norm in most fields of research. Who will the empiricists want to work with most?

They may initially find most common ground with the theoreticians. These are the lawyers who are best versed in politics and social science, and will have a greater shared knowledge with the ELS scholar. They are also the most university and research oriented, and will speak the same language of review, funding, and rankings. The teacher-practitioners are a strange, perhaps unique, phenomenon within the university, people appointed to academic posts whose writing primarily serves to facilitate legal practice.

Yet ELS scholars have their own research agenda, one may assume. They are interested in investigating the legal system empirically.Footnote ⁷⁸ The added value of lawyers for empirical research is not in their supply of normative commentary, however sophisticated, but in the way that the lawyer can explain some of the doctrinal complexities, and so help the empiricists design their research.Footnote ⁷⁹ The lawyer is like the engineer to the ELS designer: the engineer who looks at the design and says ‘don’t fix it there, it will break – try attaching it like this, or turn it the other way, then it will stay on for longer’. The designer has their own overall plan, but this kind of specialist advice on components and mechanisms is useful. ELS has been proceeding for decades under other names, as political scientists and other social scientists have researched courts, crimes, parliaments, and other phenomena where law is involved.Footnote ⁸⁰ The ELS name is indicative of a desire to engage more deeply with the doctrinal mechanisms involved, with the law itself, and not just the system.Footnote ⁸¹ It is then the teacher-practitioners who have the kind of knowledge that can turn social science research into ELS, and who are its most natural partners.Footnote ⁸² By contrast, the theoreticians produce a kind of writing which is poor in testable hypotheses, but rich in ambiguity, embracing its own complexity but quite a few steps away from being translatable into a working policy recommendation or a new directive.Footnote ⁸³ What does one measure about a Foucauldian critique of neoliberal constructivism? Marrying empiricism to this kind of writing would entail a much more qualitative turn, narrative and first-person approaches being a more comfortable match than the more mainstream ELS quantitative ones.Footnote ⁸⁴

Finally, one should not exclude the possibility that after a dalliance with ELS the lawyers close ranks to keep it in its place – if not to exclude it, but to prevent it becoming dominant. For despite the sometimes passionate hostility between the ends of the non-empirical legal scholarly spectrum, their identity conflicts with each other can be seen as the narcissism of small differences. These non-empirical lawyers, whether strictly doctrinal or wildly theoretical, are all, in their different ways, exploiting a knowledge of the rules to make arguments that entertain and sometimes persuade: no more than this, but also no less. Those at both ends of the spectrum chose law for their career, meaning they like creating disagreement more than resolving it, and they find opinions more engaging than facts. Like artists experimenting with paint, non-empirical lawyers of all kinds are essentially linguistic experimentalists, seeing what can be made or done with words. To some extent, the crisis of doctrinal scholarship is a refusal to be satisfied with this and to accept its limitations – or its value. If lawyers from both ends of the spectrum can re-embrace their nature and their limitations, then the crisis may yet be resolved in a re-emergence from the ashes of old-fashioned legal scholarship. ELS may be the Nietzschean test which rather than killing law, made it stronger.

4.7 Conclusion: The Future Will Be Different from the Past

None of these outcomes need to be permanent, nor will all collaborations be the same, and, most importantly, researchers and research groups may adapt to new realities, creating a constant flux. Theoreticians may become more practical and concrete in their writing. Teacher-practitioners may go deeper into contextual issues to understand their research partners, but find that in doing so they are moving away from the pull of practice. Empiricists may be inclined to accept more narrative and qualitative methods in order to engage with a wider range of lawyers and legal writing. However, what does seem like an overwhelmingly plausible working hypothesis is that the shape of legal scholarship in the coming decades will not be the same as it has been in the past, and in particular, the new high priests, whoever they may be, will have a differing theology from those who came before them. The holy texts of previous generations of EU law scholars may come to be seen by new generations as primarily ‘historical’ and ‘not so relevant any more’ because the way in which they reached their conclusions no longer fits our methodological expectations. The glorious days when EU lawyers could answer any question about the EU by a process of pure reasoning, and find an academic community who would take their answer for truth, may be passing away.