A. Knowledge Gaps in the Existing Scholarship

Energy and the use of natural resources have been regulated for centuries, traditionally centring on availability, access and price. More recent decades have seen an increasing emphasis on the sustainability aspects of different activities in the “energy value chain”, also referred to as the “energy trilemma”, which deals with the balance between security, cost and sustainability of energy activities.Footnote ¹³ The EU offers an illustrative example of the development and evolution of a regional legal framework for energy, encapsulating broader developments in the energy sector and providing important lessons for global energy law scholarship. The energy sector has been at the very core of European integration since the 1950s,Footnote ¹⁴ with progressively voluminous legislation culminating in the area’s present complex and extensive legal framework.Footnote ¹⁵ This legal framework is now being called upon to respond to the unprecedented pressures placed on it by climate changeFootnote ¹⁶ and, most recently, to the energy security crisis caused by the escalation of the Russo-Ukrainian war,Footnote ¹⁷ both of which have resulted in the rapid rollout of new legislative instruments for energy. These volatile developments have also demonstrated how energy is fundamental to all human activities: basic human needs, such as clean water, cooking and nourishment, adequate housing, modern health care, contemporary agriculture, communication and transportation, are all entirely dependent on access to clean and affordable energy.Footnote ¹⁸ The energy transition and the energy crisis in Europe have caused a fundamental shift in how intensely energy is regulated in Europe and how swiftly the focal legal frameworks are amended to respond to the changing societal needs. This makes energy law a turbulent area of law marked by astoundingly rapid evolution.

The pragmatic orientation of energy law and its accelerating pace of change epitomise what makes it so difficult to capture the nature of the field in a meaningful way. Some jurisdictions do not necessarily identify energy law as an autonomous field of law, but rather treat it as part of either environmental law, climate law or both.Footnote ¹⁹ Indeed, the very definition of “energy law” remains contested, with the first efforts to define it dating back to the 1990s, when Adrien Bradbrook described it as consisting of “[t]he allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between states”.Footnote ²⁰ Bradbrook’s definition is based on energy as the object of legislative efforts. Other approaches have also been adopted,Footnote ²¹ and energy law definitions could easily be structured in relation to the different segments in the “energy value chain” (e.g. production, consumption), primary energy sources (e.g. oil, coal, solar) or the typical actors (e.g. producers, consumers). Energy law could also be defined in relation to its functions. In one way or another, all definitions focus on the governance of energy – understood in natural science as the physical and quantitative property defined as the ability to do work – though legal and policy definitions tend to focus more narrowly on energy as a commodified resource, such as electricity, gas and fuels. In this way, the scope and nature of energy law is fundamentally different from, say, a field like tort law, where the concept of tort has been formulated by humans to “serve human interests”.Footnote ²² While energy law is obviously a human product, energy as a physical property exists irrespective of human activity. This influences the scope and definition of energy law as a legal discipline. For example, electricity moves through networks in a certain way and at a certain speed irrespective of what law requires it to do, and does not yield to any requirements imposed on it by law. What is more, electricity cannot be stored for long periods of time; hence, supply and demand must constantly meet to ensure the uninterrupted availability of energy. Clearly, any legal rules on the access to energy networks or the availability of electricity must be designed with these physical preconditions in mind, not the other way around. These considerations show that the ontological nature of energy influences the scope and functioning of energy law as a distinct area of law.

While the legal governance of the energy sector has a long tradition, energy law research as an academic endeavour are of much more recent origin.Footnote ²³ Given the volatility of the legislative frameworks governing the energy sector or the physical nature of energy (or both), academic inquiry into energy law has traditionally focused on highly pragmatic issues. As these have fallen into the different silos of the “energy value chain”, the field has been left without a shared understanding of the foundations on which those pragmatic questions rest. This pattern is not unique to energy law. Many legal fields emerge in response to developments in legal practice, which, in turn, give rise to a growing body of disputes and issues which require specialist expertise. In their early stages, such fields are often largely highly under-theorised and shaped primarily by practice. Over time, if a field gains sufficient social and professional recognition, it may begin to attract the attention of law schools, which introduce specialised courses to give students a competitive edge in entering the field. In response, textbooks and law review articles follow, along with successive efforts to develop theoretical frameworks. There have been few attempts, however, to theorise the field of energy law. As a result, energy law lacks a special jurisprudence, unlike many well-established disciplines. Specifically, it lacks a doctrine, which, for present purposes, refers to a shared understanding of and critical debate on the field’s key concepts, principles and theoriesFootnote ²⁴ as well as the impact these three elements have on how legal norms are interpreted and systematised within the discipline.

An instructive analogue for energy law in this regard is environmental law, whose core concepts and principles initially took shape in international diplomacy, and then gradually came to be codified in legally binding formats at international, regional and national levels.Footnote ²⁵ These elements have since been refined, analysed and debated amongst environmental law scholars, which has led to a shared and (still) gradually maturing understanding of the field’s core concepts, principles and theories as well as an account of their impact on how legal questions are formulated and answered in that area of law.Footnote ²⁶

This is not to say that there is a consensus in environmental law scholarship on the field’s disciplinary foundations or that the process of developing doctrine is somehow “done” or “finished” in any way. In fact, environmental law has been said to suffer from the very same immaturity as energy law, with scholars highlighting that “environmental law as an academic discipline has spent the last 20 years coming of age”Footnote ²⁷ and asserting that while the “maturing of it as a scholarly enterprise has been eagerly awaited and predicted”, “adulthood has never arrived”.Footnote ²⁸ Nevertheless, the scholarly tradition in environmental law and, in close connection, climate law, is distinctly more theoretically ambitious and long-standing than in energy law. Environmental law scholarship features a long tradition of analysis and discourse of the field’s underlying foundationsFootnote ²⁹ and climate law scholarship has critically debated its foundations. In the case of the latter, scholars such as Alexander Zahar and Benoit Mayer, for example, have reflected on and articulated their intellectual differences regarding key concepts of climate law, highlighting the different ways in which the foundations of climate law can and should be comprehended.Footnote ³⁰

Energy law scholarship currently lacks such analyses, debate and critical reflection. Only one group of energy law scholars has put forward principles of energy law in 2018. The raison d’être of these principles was to “act as a guide to policymakers, academics, lawyers, judges and arbitrators when adjudicating, enforcing, making or formulating documentation, laws, regulations, judgments, etc. on energy law”.Footnote ³¹ While this work marked a pivotal contribution to modern energy law scholarship, it suffers from two critical shortcomings from the point of view of developing a doctrine of energy law.

First, whereas the work puts forward principles that ought to be followed by “policymakers, academics, lawyers, judges and arbitrators”,Footnote ³² it does not provide a systematic account of what principles are followed by these actors, or upon what legal sources they are based. In other words, it presents a normative account of the principles that ought to underpin energy law without first detailing the principles that de facto undergird the field. To be sure, some of the proposed principles of energy law can probably be traced back to diplomatic initiatives or legislative developments, but no sufficiently comprehensive or systemic analysis has been carried out to date. Still lacking is an analysis that would make it possible to ascertain how and where (and indeed whether) a doctrine of energy law can be abstracted from legal sources, how it is reflected in energy policy-making and case law, or what such observations would mean for the foundations of the discipline as a whole.

The above criticism clearly acknowledges that there is a long and heated debate in legal scholarship that focuses on analysing the merits and perils of descriptive versus normative or evaluative accounts of law and argues in favour of one and against another.Footnote ³³ While this criticism is not meant to take a stand on, or contribute to, the nuances of this time-honoured debate, the perspective underlying it merits some remarks. A first and ready observation is that the arguments suggest a characteristically positivist approach and, to some extent, seem to call for a descriptive rather than normative account of (energy) law. The reality, however, is rather more nuanced than that. The above criticism posited in this article, more broadly, in no way purports to claim that positivist or descriptive accounts of law are better or truer than normative or evaluative ones. It also recognises that all theories are evaluative in the senses highlighted by scholars such as RazFootnote ³⁴ or Dickson, of whom the latter posits that merely striving for a clear or coherent theory makes that theory evaluative and that deciding which elements of a theory are important is an evaluative task in and of itself.Footnote ³⁵

Taking a somewhat different tack, this article quite simply asserts that putting forward a list of principles that legal professionals in the field of energy law should follow tells us nothing about the nature of energy law as a field if that list is not based on a methodologically rigorous analysis of the relevant legal sources and the practice of those legal professionals. Another working premise is that principles, as part of doctrine, are always normative; this is not disputed.Footnote ³⁶ The contention here is that the principles previously suggested in energy law have not been identified as emerging from relevant legal sources de lege lata, but rather merit integrating into energy law de lege ferenda. The premise of this claim, presented by Dickson and highlighted by Priel, is very simple: “in order to say something about the value of anything, one has to know first what that thing is.”Footnote ³⁷ This also means that, while this article argues that doctrine-building in the positivist sense is necessary for coherence and predictability, it does not claim that the resulting doctrine – or its constituent elements – are necessarily socially just, environmentally sustainable or otherwise morally good. In fact, research shows that inherent elements of energy law are being used to delay decarbonisation processes.Footnote ³⁸ However, without identifying, acknowledging and understanding these components, it becomes difficult to find pathways for steering the energy law system in a more socially just or environmentally sustainable direction.

Second, while at the time Heffron’s and Talus’s work did invite energy law scholars to discuss the more theoretical undercurrents of energy law,Footnote ³⁹ it has fallen short of stimulating the robust discussion and debate among the broader community of energy law scholars that is needed to formalise the role of the principles as part of a doctrine of energy law. Revealingly, scholars have pinpointed a number of shortcomings in the field: Huhta and Reins have pointed out that the attempts to identify principles of energy law exhibit considerable variety “in terms of how key elements of energy law are theorised and framed”.Footnote ⁴⁰ For example, del Guayo identifies security of supply as a principle of energy law even though security of supply is often also understood as an objective of energy law.Footnote ⁴¹ Energy law scholarship has not engaged in a more general philosophical discussion as to what constitutes a principle and what distinguishes one from an objective or a concept, or if a principle can simultaneously be an objective in energy law. These knowledge gaps in the tradition of energy law scholarship underline the need to initiate a discussion of, and a debate on, the special jurisprudence of energy law.

B. The Functions of and Need for a Special Jurisprudence

As pointed out by H.L.A. Hart in The Concept of Law, there is typically little interest in other disciplines for engaging in discussions about the ontological nature of core concepts, such as “medicine” or “chemistry” (or “energy” for that matter), but, paradoxically, legal scholars are traditionally deeply intrigued by debates about the nature of law.Footnote ⁴² This interest is not surprising considering its importance for legal scholarship.

In contrast to general jurisprudence, which, it will be recalled, concerned the nature of law generally, scholars delve into “special” or “particular” jurisprudence in attempts “to get a sense of what law in [a given] area is like, and if anything they use that – plus their sense of what law is like in other areas – to build up their account of law as such (rather than the other way around)”.Footnote ⁴³ Theorising distinct areas of law, and developing a special jurisprudence for them, is gaining traction in legal theory, with scholars such as Khaitan and Steel identifying the diversity of special jurisprudence and highlighting the value of both normative and non-normative accounts of areas of law.Footnote ⁴⁴

Legal scholarship has recognised several functions for special jurisprudence, most importantly coherence, legitimacy, social acceptance and efficacy. There are also pedagogical reasons, and all these functions are tightly interlinked. A shared understanding of the nature and scope of a legal field is thought necessarily to prompt a group of professionals in that field to seek and contribute to coherence in it.Footnote ⁴⁵ Seeking coherence is argued to contribute to the stability of a field, which can, in turn, bolster its “normative force and, therefore, its perceived legitimacy”.Footnote ⁴⁶ The legitimacy of a legal field can also be strengthened by a shared understanding of its foundations.Footnote ⁴⁷ An understanding of the foundations of a legal field can contribute not just to the legitimacy and social acceptability of the field, but also, as a result, to its effectiveness in society.Footnote ⁴⁸ Finally, the pedagogical functions of classifying norms in areas of law, and understanding their special characteristics, have long been recognised.Footnote ⁴⁹

This understanding of the functions of special jurisprudence highlights the role of doctrine, especially for the perception a legal professional has of their field. A doctrine – a field’s key values, concepts, principles and its interpretive practices – is used to frame and comprehend the normative material relevant to the field: it is the legal structure within which individual laws and judicial decisions operate. Tuori has highlighted that a doctrine gives “expression to the conceptual and normative” characteristic elements of a legal field, which in fact “receive their identity from their general doctrines”, the development of which can “be seen as a sign of independence”.Footnote ⁵⁰ Doctrine consolidates the foundations of a legal discipline and guides legislators, courts and lawyers in identifying, valuing and interpreting legal norms. Doctrine varies between legal disciplines because of their differing scopes, orientations, developmental paths and societal purposes. Accordingly, special jurisprudence of an area of law lies at the core of a legal professional’s perception of the field and is used to interpret and systematise the legal material which that professional uses in their work.

In fact, it is their understanding of the foundations of a legal field that separates a legal professional from any other literate person who is able to read legal text; it enables these professionals to place isolated norms or individual legal acts into the broader context of the legal system as a whole and comprehend their mutual interactions. This claim can be confirmed not just through the interpretation of legal texts, but also in the legal practices and in expert language used by legal professionals, which is often incomprehensible to a layperson.Footnote ⁵¹

Doctrine of a legal field can be unique to a jurisdiction, but it can also extend beyond jurisdictional boundaries. An illustrative example can be drawn from environmental law, where principles of international environmental law have been developed despite significant national differences.Footnote ⁵² Placing such differences in the context of energy law shows that national approaches to energy production and consumption are diverse. In the US, for example, the owner of surface land also generally owns any oil and gas beneath it, while, in Norway, the state owns all subsoil petroleum resources.Footnote ⁵³ Despite clear differences in resource ownership in these cases, the relationship between the owner and the operator of those resources is a cross-jurisdictional phenomenon that can be meaningfully studied.Footnote ⁵⁴ Similarly, in the EU, there are significant differences between the national approaches taken by Member States to the structure of the energy system and energy security, for instance, but there are also supranational principles, operating at an EU-wide level, such as the energy solidarity principle, that apply across jurisdictions to the energy systems of all Member States.Footnote ⁵⁵

It seems pivotal, then, that a legal professional is knowledgeable about the deeper foundations of their field, but why is any of this relevant for a pragmatically oriented field, such as energy law? Could its practitioners not just settle for its long-standing perception of immaturity as a permanent state of affairs? And could it not lean on the doctrines of environmental law, consumer law – or public law more generally – without developing its own doctrine? It probably could, but arguably should not.

In the case at hand, an applicable doctrine would bring coherence and predictability to what today is a turbulent area of law and, consequently, increase justice and equity in the adoption, interpretation and adaptation of energy law. Indeed, such a doctrine would be pivotal in stabilising the rapidly changing and volatile energy sector, and be crucial when ruling on hard cases.Footnote ⁵⁶ For instance, the permanent sovereignty over natural resources, echoed in Article 194(2) of the Treaty on the Functioning of the European Union, is regularly invoked by Member States and occasionally relied on by the Court of Justice of the European Union.Footnote ⁵⁷ However, in the absence of a comprehensive analysis of whether it constitutes a concept or a principle, and of the contexts in which it can be effectively invoked, its stabilising function remains, at best, limited. Similarly, energy law seems often to be heavily based on economics and economic assumptions derived from competition law, yet the influence of this tendency and foundational fact on judicial decision-making has not been explored by energy law scholarship.Footnote ⁵⁸

What is more, a doctrine of energy law would be of vital importance as society finds itself facing a radical and systemic change towards more sustainable energy production and consumption. Articulating a doctrine would be crucial for understanding the limits and opportunities of decarbonising the energy sector to fight climate change and, on a broader level, understanding the capacity of law to facilitate societal change. This claim can be understood in the context of discussions in general jurisprudence. Tuori, for example, has conceptualised law as consisting of levels that each change at a different pace.Footnote ⁵⁹ On its tumultuous, visible surface, law consists of laws and decrees, and it changes swiftly depending on the jurisdiction and political priorities in place at any given time. Below this level lies the legal culture: this encompasses the doctrines – concepts, principles and theories – of each legal field, which emerge and become established more slowly but, once extant, are also more permanent; ready examples would be nulla poena sine lege in criminal law or the precautionary principle in environmental law. Farther down one finds the deep structure of the law, which Tuori refers to as “the common core of legal cultures”; this changes the slowest.Footnote ⁶⁰ While the restive surface can be found in black and white in legal texts, the subsurface levels are based on tacit knowledge, legal expertise, legal language and understanding law as a system, rather than as a collection of isolated norms.

This conceptualisation of law as a multilayered system has direct relevance as regards energy law and the low-carbon energy transition. Previous research has shown that while we know that energy law must, and in fact one purpose of it is to, address the environmental harm caused by energy activities, law – especially on its subsurface levels – also poses considerable obstacles to the achievement of this goal.Footnote ⁶¹ Without an understanding of what these lower levels in energy law look like and how they operate, it is not possible even to begin to find avenues to resolve them. For instance, research at the intersection of climate and energy law has demonstrated that the drivers and the objectives of the two fields are distinctly different, which can result in energy law significantly hampering the pursuit of ambitious climate policies.Footnote ⁶² Without a comprehensive understanding of the foundational characteristics of energy law that either hinder or could be used to facilitate decarbonisation, the efficacy of climate policies is compromised.

It is clear that the nature of energy law as a field cannot be understood without an awareness of how it positions itself in relation to well-established disciplines and their doctrines as well as other sciences.Footnote ⁶³ Developing an understanding of energy law as a field also helps to conceive of it as a part of the wider legal system. Doctrine serves to resolve conflicts between laws and legal systemsFootnote ⁶⁴ and to explain the relationships between different laws within the legal system, as well as the impact of those relationships on the interpretation of a legal question. The interpretation of energy law in light of established principles of climate law or environmental law can yield very different results from placing the same norms in the context and doctrine of energy law.Footnote ⁶⁵

Neither the functions and values of special jurisprudence identified above nor the development of doctrine within that jurisprudence mean that a consensus on the foundations of the field should (or could) be found within energy law scholarship. In climate and environmental law, which have made far more progress in developing a doctrine than energy law, it has become clear that no consensus on the foundations of the fields can be found, as demonstrated by the examples provided above.Footnote ⁶⁶ What is needed instead is a shared discussion, debate and, in particular, critical discourse about what makes a legal area an independent field and what constitutes the foundations of that field once identified. In fact, Barber has pointed out that this type of common understanding is often “a pointer towards important features of the institution or principle”Footnote ⁶⁷ and that such an abstract understanding “will often have implications for the operation of the local manifestation of that institution: a good account of an institution may need to include an account of how the communities in which it operates understand it”.Footnote ⁶⁸

If these types of efforts to cohere a field of law through special jurisprudence are not successful or are unable to identify cross-jurisdictional common denominators that unite a discipline, then acknowledging this is also an important finding that clarifies the nature of a legal field and its limitations.Footnote ⁶⁹ Like environmental law, energy law is a form of expertiseFootnote ⁷⁰ and as such should incorporate an understanding of how the field functions in the context of the broader legal system.

In the light of the above arguments, it is pivotal to develop the doctrine of energy law by constructing and analysing the concepts and principles that drive the field, and abstracting its theoretical underpinnings from these analyses. Significantly, this undertaking would contribute to an enhanced understanding of the fundamental framework within which the energy sector – including the low-carbon transition and energy crises – is governed in a legal context. Moreover, it would advance knowledge on the interaction between energy law and the societal objectives energy law seeks to achieve. While it is clear that the present legal governance of the energy sector in various parts of the world aims to mitigate climate change, without a deep understanding of the structures of energy law and the fundamentals that drive the field, it is difficult to anticipate why and where challenges will emerge and how they can be remedied.

As the above arguments indicate, the field now needs to move beyond this persistent self-perception. Promisingly, energy law is now ripe for the required research to commence. To date, there have been several likely reasons why no special jurisprudence in energy law has developed. One is that the fundamental processes of energy market liberalisation, followed by decarbonisation, have resulted in a torrent of substantive developments that have essentially monopolised the attention of legal scholarship and confined research efforts to the practical level. This is not to say that a quick pace of change would necessarily result in the incoherence of a legal field; rather that the nature of energy law as a field and as an academic endeavour has focused on this pragmatic, rapidly changing level and focused less on the underlying structures whose core function is to improve coherence.

Moreover, energy law is also intensely interdisciplinary: it not only tends to borrow concepts, principles and ideas from other fields of law, but also regularly engages with other disciplines such as economics, engineering and social and political science to solve the complex societal challenges that pressurise the sector.Footnote ⁷¹ In fact, it is often that doctrines of other legal disciplines are applied to the energy sector.Footnote ⁷² This fundamental interdisciplinarity has rendered energy law a fragmented hybrid of legal fields, where energy law effectively borrows key concepts and principles from other legal fields, such as property law, environmental law or contract law, and complicates any attempts to create a coherent or comprehensive doctrine of its own.Footnote ⁷³

Furthermore, as energy has always been driven to a large extent by national interests and nationally constructed infrastructures, it has often been regulated and analysed at national level.Footnote ⁷⁴ This, in turn, has meant that it has not necessarily been possible to construct and develop shared concepts, principles and theories that would transcend jurisdictional boundaries. Yet, energy law has become fundamentally regionalised and internationalised in recent decades,Footnote ⁷⁵ inviting the development of foundational characteristics that are shared irrespective of the jurisdiction and will not necessarily change even if the more ephemeral, individual laws in the field do. As identified above, this does not exclude national differences, but redirects scholarly attention to those characteristics that do cross jurisdictional boundaries, such as the “energy solidarity principle” in EU law or the relationship between the owner and the operator in mining petroleum resources that can be located below the surface level of law that Tuori discusses.Footnote ⁷⁶ So how can special jurisprudence be developed? This is the topic of the next section.

A. Fundamental Assumptions and Questions

No doctrine or fundaments of a legal field are likely to be readily identifiable simply by reading a legal instrument or a single case. Instead, they will tend to emerge from an examination of a range of legal instruments and a line of cases as well as a close look at the evolution of the source documents. They may often appear to the reader as fragmented, inconsistent or even internally conflicting. That is to say that even the more solid, systemic and stable elements of a complex field such as energy law are likely to be tangled and layered, thereby requiring creative construction, interpretation and systematisation.

For example, on the global level, energy laws try to ensure that energy is no more expensive than is considered reasonable. However, this singular goal has a plurality of names in legal texts and has been discussed under a variety of concepts, such as affordability, security of supply, energy and fuel poverty and competitiveness.Footnote ⁷⁷ Collating these concepts and coining a term that captures the overall goal exemplifies a systematising activity that rearranges and structures the normative material into something that could contribute to the coherence of the field.

There is no consensus on whether doctrine-building in this sense can be considered a task of rather simple identification or whether it always consists of something more far-reaching, such as construction and creation. In other words, we do not know whether doctrine is or can be found, created, constructed, induced or abstracted. Opinions on this may vary depending on the age and tradition of a given legal field, the typical background of its legal scholars and the overall level of awareness that scholars in the field have about the differences between processes, such as identification and creation. As the title of this article suggests, “building” a special jurisprudence provides sufficient latitude that these different points of view require (even if the article also uses loaded concepts such as “construct” or “induce”). Importantly, irrespective of one’s viewpoint on this matter, such development or building is a task inherently meant for legal scholars and legal scholarship.

It is clear that the emergence of a legal field, or of its foundations, is difficult to establish and that it is hard – if not impossible – to identify a clear point in time when a discipline emerges or when it becomes mature.Footnote ⁷⁸ In some jurisdictions, energy law is analysed and, at least implicitly, identified as an autonomous legal discipline, albeit without much reflection as to how energy law is defined or what makes it a special area of law.Footnote ⁷⁹ Previous research in energy law has argued that the maturity of a legal discipline is defined by two characteristics. First, it requires an understanding of the common denominators that are characteristic of the discipline, either in law or in the practice of legal professionals. Second, maturity requires a shared debate and dialogue about how these denominators influence legal argumentation and the identification, interpretation and value of legal norms in the focal law and practice.Footnote ⁸⁰

The above claim about maturity is both doctrinal and empirical. It rests on a fundamental assumption that the doctrine of an area of law – that is to say the concepts, principles and theories – emanates from and is grounded in legally binding and institutionally authoritative sources. However, they become doctrine only after being developed in legal scholarship, which leads to a gradual understanding of which concepts and principles are pivotal and how they form the theoretical framework of each legal field. This evolution is a matter of social recognition by legal professionals and is not readily identifiable from legal texts alone. The relevance and importance of a shared understanding of principles, for example, has been emphasised elsewhere in the literature.Footnote ⁸¹ This process of development requires deep engagement and interaction with – and exposure to criticism from – the broader community of legal scholars.

In the case of energy law, then, doctrine can be induced not only from a careful reading of legal sources and their historical development, but also from the practice and perception of the field by the judges, practitioners or scholars engaged in it. As a result, the success of special jurisprudence in contributing to values such as systemic coherence, legitimacy or efficacy depends on whether legal professionals recognise and acknowledge the field’s doctrine as “doctrine”. This fundamental criterion for identifying new areas of law has been recognised elsewhere in the literature on special jurisprudence and linked coherence-seeking to the social recognition of a legal field by legal professionals.Footnote ⁸² It has held that “[o]nce an area of law is recognised by the legal complex (even if not by legal doctrine), various actors start attempting to lend it some degree of coherence”.Footnote ⁸³ In this way, coherence and the acknowledgement of a sufficient number of legal professionals active in that field are profoundly interlinked.

These fundamental assumptions mean that an inquiry into the special jurisprudence of a field should investigate the following doctrinal and empirical questions, ones that each uncover layers in the development of the doctrine from different angles. First, that investigation should focus on how the specific field of law has emerged, developed and changed over time, and what kinds of patterns, developmental phases and regularities can be distinguished in its evolution. This first line of inquiry is historical in the sense that it focuses on development and evolution, and seeks to identify elements that have a comparatively long history; the assumption at work here is that a concept or a principle which has been established and repeated in case law for decades has a more permanent status than one mentioned once in a case from the previous year, for example, and is more permanent in line with Tuori’s understanding of legal culture and the deep structure of law.Footnote ⁸⁴ For energy law, this would mean understanding the historical evolution of the field to identify, for example, from which time period it developments most intensely, and why. Were such periods driven by legislation, court decisions, more informal legal documents or a combination of these factors? That is, do the changes in themes and phases coincide with landmark rulings, significant legislative changes or major societal events? Have these inputs been validated by the courts or the legislatures, and how? This could consist of an investigation of how – through which instruments and techniques – the objective of decarbonisation, or the increasing calls for energy justice, has been integrated into legal frameworks.Footnote ⁸⁵

Second, the inquiry should examine the concepts and principles that emerge from legal sources in force at the moment. In other words, the investigation should focus on the kinds of fundamentals that can be constructed from legal sources through legal interpretation and systematisation. Can concepts or principles be abstracted from the relevant legal sources, and from what kinds of sources do they emerge? Have they emerged from a single landmark ruling, for example, or have they been introduced gradually in legislative instruments? How are they used and justified, and by which institutions? Are these concepts and principles unique to energy law, or do they emerge from the traditions of other legal fields, such as competition law or consumer law? In terms of energy law, this type of investigation could focus on, for example, how the permanent sovereignty over natural resources has emerged, how it is legally operationalised and how it influences legal decision-making in the energy sector.Footnote ⁸⁶

Third, the investigation should find out whether the concepts and principles are founded on particular underlying assumptions or theoretical underpinnings and, if so, what these are and in which legal sources they have originated. Here, theoretical underpinnings can refer to a diverse combination of constructs, such as taxonomies, models, typologies, paradigms, ideologies or drivers, that can be used to classify normative material.Footnote ⁸⁷ Such a line of inquiry should also seek to find out in which legal sources these elements originate and upon what kind of legal interpretation they are based. Other salient questions include: What has been the role of different institutions in introducing and implementing those elements? Have they been justified, and how? Are they used to justify the concepts and principles, or are the concepts and principles used to justify them? In terms of energy law, this could consist of an examination of how economics or economic assumptions, for example, underline energy law and what that means for legal expertise and effective judicial review in courts or law firms.

Fourth, the development of a special jurisprudence for an emergent field of law should empirically investigate how judges, lawyers and legal scholars perceive the concepts and principles of law pertinent to the field and what they identify as the salient theoretical underpinnings. In the case of energy law, this inquiry should focus on how legal professionals active in the sector understand the role of doctrine in the scope, application and interpretation of legal instruments in the field. Do they perceive energy law as an independent discipline or do they see it as part of administrative law or environmental law, for instance? Do they consider energy law as having a set of fundamental concepts, principles and theories? If not, why not? Which concepts, principles and theories do they consider particularly instrumental for the emergence of energy law as an independent discipline? Are there differences in how different groups of legal professionals interpret the legal sources and if there are, why? How do legal professionals perceive the role and importance of concepts, principles and theories in the scope, application, interpretation and development of energy law? Do they find these essential or comparatively incidental? Why?

Finally, in recognition of the fact that areas of law only gain legitimacy through the validation and acknowledgement of a sufficiently large group of legal professionals, the inquiry should investigate how the identified concepts, principles and theoretical underpinnings of the field are received by the energy law community and what its main criticisms of these fundaments are. This kind of inquiry is necessary because doctrine is constructed and developed in legal scholarship through joint debate, analysis and exposure to criticism, and therefore requires deep engagement with, and input from, the broader community of legal scholars and experts. Both the fourth and this final research question highlight the importance of a common understanding within legal scholarship and the “wisdom of crowds” that is often “invoked in legal theory as a test of the correctness of an account of an institution or principle”.Footnote ⁸⁸ It requires doing things together – meeting in conferences and workshops around these topics, highlighting the common ground and identifying intellectual differences.

How can a legal discipline be advanced through these five lines of inquiry? For many legal domains, it has taken place organically through decades, if not centuries, of legal debate and jurisprudence. More recently, it has been recognised that legal professionals proactively facilitate this process by starting a new course on the theme, organising events around it or publishing a book on it.Footnote ⁸⁹ However, these efforts will fail “unless a significant body of the legal complex as a whole accepts it”.Footnote ⁹⁰ The next section explores the methodological options for seeking this kind of acceptance from the broader community of legal scholars.

B. Methodological Pluralism for Advancing a Discipline

There is no well-established methodology for developing special jurisprudence for an area of law. It is typically at least a partially latent process that takes place rather organically and over time in the interaction between the doctrinal and empirical questions articulated above. In this way, the development of legal doctrine involves not the contribution of a single paper by a single author but the engagement of the “legal complex”, where individuals within that complex engage in different topics around the foundations of the field. Individually, they delve into different topics, an activity which collectively and over time reveals the deeper foundations of the field. However, neither general legal theory nor special jurisprudence, in particular, has drawn any systematic attention to how this process could be effected deliberately for emergent areas of law.

An attempt even to describe the process of doctrine development is complex due to the doctrinal and empirical implications involved: doctrine can be abstracted from a careful reading of the legal sources and their historical development but only becomes established doctrine when it is acknowledged and debated by the community of legal scholars active in that area of law and is present in the practice and perception of law by legal professionals such as judges, attorneys or legislators. Legal sources are interpreted by legal professionals and those interpretations are taken as data that is then analysed by legal scholars. This analysis then feeds back into the interpretation of law by legal professionals when they draw on legal literature to argue in favour of or against a certain interpretation of a legal source. In this way, the three – legal sources, legal practice and legal scholarship – co-evolve in their development of doctrine. They may strengthen one another, or they may clash and juxtapose contrasting views, influencing the strength of the doctrine or elements within it.

Concepts, principles and theories of a legal field lie at the very heart of any legal discipline and its development is an exercise of traditional legal research that engages in the interpretation and, most importantly, the systematisation of legal sources as the reorganisation of normative material.Footnote ⁹¹ This classical doctrinal approach, based on the close reading of legal sources and describing, predicting, systematising or prescribing the interpretation of law, is the foundation on which centuries of legal scholarship and doctrine-building have relied.Footnote ⁹² It is a line of legal inquiry rooted in legal positivism and a view of the system of law from within. Any deliberate attempt to develop doctrine should stand on the shoulders of this line of research and operate squarely within this tradition.

In terms of legal sources, constructing a doctrine of energy law would be an exercise in finding the commonalities among the fragments, or “wilderness of single instances”, of judicial decisions or other legal sources that might appear incidental or unrelated.Footnote ⁹³ This form of inductive analysis has been the hallmark of successful efforts to structure doctrine in other fields of lawFootnote ⁹⁴ and focuses on constructing, interpreting and systematising doctrine from the fragments that can be found through the close reading of legal sources. Such analysis explicitly avoids zooming in on highly pragmatic legal issues or focusing on the rapidly changing legal frameworks that govern the different silos that make up the energy sector, such as trade and investment, consumers, security and decarbonisation policies.Footnote ⁹⁵ This surface-level normative material, such as laws or decrees, can be (and is) frequently amended, revised or replaced and varies between jurisdictions. As Tuori has suggested, instead of exploring this unstable and chaotic surface-level normative material, analyses should focus on abstracting characteristics of law that appear below the surface, as it were, characteristics that do not necessarily change even if the laws as such do, or at least are very slow to change.Footnote ⁹⁶ These more static elements encompass not only the fundamentals that are determinative of the discipline but also how these features influence its key processes, that is, the interpretative and argumentative methods that inform legal decisions and legal scholarship by legal professionals, such as judges, whose work defines the field. Interpretation and systematisation enable this analysis to play a principal role in resolving possible fragmentation, inconsistencies and internal conflicts.

However, deliberatively and intentionally stimulating such a process of doctrine development requires methodological pluralism that goes beyond doctrinal legal method. The development of special jurisprudence in the discipline also requires deep engagement with, and input from, the community of energy law scholars and experts, because doctrine is built and elaborated in legal scholarship through joint debate, analysis and exposure to criticism. This of course is a precondition for any scientific endeavour and thus not a requirement solely for developing a doctrine of law. However, it does impose particular methodological requirements on any attempt deliberately to develop a doctrine of law. Specifically, in addition to interpreting, systematising and theorising legal text, the undertaking must also engage profoundly with legal professionals to facilitate the co-evolution between legal sources, legal practice and legal scholarship. With this in mind, empirical approaches must be brought to bear if the development and analysis of the concepts, principles and theories of energy law are to garner input from legal professionals and take place interactively with the legal community. Importantly, such approaches also ensure that the doctrine being developed is exposed to debate and criticism among scholars in the field. In practice, this can take the form of interviews, co-creation of research outputs or any form of collaborative knowledge generation, but any one-directional effort or claims made by a single researcher would fall short of this criterion.

The need for such unconventional approaches to an essentially traditional jurisprudential research problem also originates in the challenges of constructing special jurisprudence in an interdisciplinary and complex field such as energy law. As identified above, doctrine cannot be articulated in isolation from the community of legal professionals which it serves: it is essential that the development of a doctrine in energy law proceeds in cooperation and interaction with the professionals who rely upon it. This necessitates methods beyond the strictly doctrinal, that is, ones that embrace gathering and analysing interview- and expert workshop-based data from actors such as judges, practising lawyers and legal scholars. This combination of methods would be in the optimal position to stimulate the needed dialogue and debate on the disciplinary foundations of energy law, a crucial step in the attempt ultimately to consolidate this framework and to advance and mature the field.