Geen kloof maar context: Naar een herijking van het rechtsbegrip in ELS-onderzoek

Abstract

This article examines the basic assumption underlying some examples of Empirical Legal Studies, that there is a gap between ‘law in books’ and ‘law in action’. This article criticizes these ‘gap’-studies. Despite the importance of empirical knowledge to the assumptions and the effects of law, the ‘gap’-approach fails to incorporate the social context of law. The omission of the social context is based on a legal centralist approach to law and overlooks the dimension of normativity of law. This essay proposes to abandon a legal centralist ‘gap’-approach and to embrace a contextual approach. This contextual approach is based on normative language analysis, which finds its roots in H.L.A. Hart’s The Concept of Law. In the anthropological literature, the work of Sally F. Moore stands out as an inspiring example of a contextual analysis that showcases the importance of a focus on normative language. The step towards a careful analysis of normative language would only strengthen ELS research. This can, however, only be achieved by abandoning the ‘gap’-approach.