4 Methodological approach and materials
4.1 Doctrinal but critical
Legal researchers often state that method has not been central for their approach;
in fact, it is not uncommon for legal researchers to claim that they have no method or to not address method at all.273 However, there is no research without a method, and communicating the method clearly is important to enable assessment of the reliability and validity of the research. In this section, I present the methodological approach of the thesis274 and discuss three central methodological choices: firstly, taking a doctrinal approach; secondly, using systematic case studies to find where the problems lie; and thirdly, using comparison and contrasting to highlight the problems. Doctrinal research is in many respects the most traditional type of legal research. Systematic case studies and comparison, however, deserve more attention. They are not new methods as such, but labelling them as methods is not common in legal human rights research. Because I have benefited from other researchers’ honest reflections on their work, I find it important to show how these approaches can be used to find new information and highlight problematic developments in the materials studied.
When conducting research on human rights, it is crucial to distinguish between how things are, how they could be and how they should be: while empirical theories aim to explain and understand certain phenomena, normative theories focus on how things ought to be.275 Interpretation of legal norms is an objective traditionally associated with the doctrinal method in legal research.276 A researcher with a doctrinal research interest aims to interpret legal norms in relation to others, essentially from an internal perspective.277 Legal doctrine has been described as
273 Eg McCrudden has made that observation, see Christopher McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, 646.
274 Methodology has been defined as a ‘generic term for choice of approach, sometimes connected to theoretical understandings and conceptual paradigms’; method ‘refers to the specific approach selected, such as quantitative or qualitative methods along with particular analytical tools’ where ‘tools’ are components of a method. See Bård A Andreassen, Hans-Otto Sano and Siobhán McInerney-Lankford, ‘Human rights research method’, Research Methods in Human Rights (Edward Elgar Publishing 2017) 1-2.
275 Landman, Studying Human Rights 36.
276 Mark Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of Discipline?’ in Mark Van Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Hart Publishing 2011) 4.
277 McCrudden, ‘Legal Research and the Social Sciences’ 633-634.
a ‘discipline which takes normative positions and makes choices among values and interests’.278
This thesis has a doctrinal research interest as it assesses the studied human rights practice in light of the normative framework of human rights law. One of the aims of this thesis is to analyse the ways in which the best interests concept interacts both with human rights, including children’s own rights and interests and the rights of other persons, and with competing interests, such as the state’s interest in controlling immigration. This aim contributes to the interpretation of the best interests concept. Empirical observations concerning trends in case law (or other elements in the materials analysed) do not alone form a basis for critiquing these trends. Hume famously noted the distinction between ‘is’ and
‘ought’ propositions:279 empirical reality does not reveal how things should be.
Critique takes place from a certain standpoint, which in this study is the human rights framework and its underlying principles.
Doctrinal approaches to legal research have some pitfalls, including the value-laden nature of interpretation. Normative claims are more vulnerable to criticism related to justifications of human rights than approaches not taking a normative stance. The value-tied nature of interpretation does not mean, however, that interpretation should not take place at all but, rather, that the beliefs affecting and forming the interpretation should be clearly expressed.
The fact that there are underlying assumptions behind every interpretation makes the idea of an overarching, correct interpretation more difficult. However, the existence of underlying assumptions does not necessitate interpretation nihilism, either, namely the idea that all interpretations are equal. In light of international human rights law, some interpretations are better than others. Some interpretations clearly conflict with a human rights norm; some conflicts are less immediately obvious but still evident after a careful examination. Of course, this is not to say that international human rights law is an entirely unified field. The views of human rights treaty bodies change over time, and human rights bodies sometimes err, disagree with each other and depart from earlier precedents.
International human rights law also suffers from internal conflicts, and different understandings of rights – such as regarding the scope of rights and differences between civil-political and ESC rights280 – lead to varied interpretations of the
278 Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of Discipline?’ 10.
279 David Hume, The Complete Works and Correspondence of David Hume. A Treatise of Human Nature (InteLex Corp. first published 1739) 469-470.
280 Compare eg George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007), who argues that the ECHR should be interpreted as imposing restrictions on state action, emphasising civil and political rights, and Virginia Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation’ (2013) 13 Human Rights Law Review 529.
correct interpretation of, for instance, the scope of the protection of family life.
There are diverse understandings of rights even within bodies that produce international human rights law.281 Nevertheless, international human rights law, as a sub-discipline of law, has certain starting points, which include a commitment to ratified human rights obligations.
Before moving to discuss systematic case studies in detail, I want to underline that a study with doctrinal elements has to be critical, too; a doctrinal approach does not mean accepting everything as a given fact. All research is supposed to be ‘critical’ in that questioning the object of study is crucial for any research project.282 Reynaert, Bouverne-De Bie and Vandevelde understand ‘critique’ in the context of children’s rights research ‘as a practice of questioning and analysing presuppositions underlying practices in the broad field of children’s rights’.283 In this thesis, I do not use the term ‘critical’ to refer to, for example, to Critical Legal Studies or to critical approaches to international law.284 Nevertheless, keeping one’s underlying assumptions in mind, re-evaluating the materials studied and not taking them for granted is extremely important, though difficult. In a contested field such as human rights, the importance of being critical is all the more crucial. It has been argued that a pitfall of human rights scholarship is that the research aim is to improve respect for human rights standards, which may lead to viewing human rights standards in an idealised light and forgetting that, as results of negotiations between states, human rights instruments are not perfect.285 Children’s rights research has, likewise, been criticised for being insufficiently critical of the CRC framework as well as for a lack of theorisation and contextualisation.286 I attempt to avoid these pitfalls by not taking the interpretation of the actors studied for granted and by analysing their shortcomings, too.
281 See eg Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint 17 regarding the ECtHR.
282 Panu Minkkinen, ‘Critical legal “method” as attitude’ in Dawn Watkins and Mandy Burton (eds), Research Methods in Law (Routledge 2017) 119.
283 Reynaert, Bouverne-De Bie and Vandevelde, ‘Between “believers” and “opponents”: Critical discussions on children’s rights’ 156.
284 Note that there is no such thing as ‘a’ critical approach; critical legal method is rather a cluster of approaches. See Martti Koskenniemi, ‘Letter to the Editors of the Symposium’ (1999) 93 American Journal of International Law 351, 352-353.
285 Coomans, Grünfeld and Kamminga, ‘Methods of Human Rights Research: A Primer’ 182.
286 Quennerstedt, ‘Children’s Rights Research Moving into the Future – Challenges on the Way Forward’;
Reynaert, Bouverne-De Bie and Vandevelde, ‘Between “believers” and “opponents”: Critical discussions on children’s rights’; Didier Reynaert, Maria Bouverne-de-Bie and Stijn Vandevelde, ‘A Review of Children’s Rights Literature Since the Adoption of the United Nations Convention on the Rights of the Child’ (2009) 16 Childhood 518.