Researching Public Law in Common Law Systems

Paul Daly & Joe Tomlinson (eds)

University of Ottawa & University of York

What inspired you to take up this project?

The huge empty space where the literature on public law methodology should be! As our careers have progressed both of us have come to appreciate the importance of methodology. Many debates in public law feature fierce disagreements between scholars who, when it really comes down to it, simply have different methodological commitments. Clearer thinking about methodology, we hope, will make those debates easier to navigate, both for participants and observers.

One reason that these debates are so prevalent is that methodological assumptions are often not articulated in public law scholarship. Law journals do not necessarily need to insist on the ‘methodology’ sections so prevalent in other disciplines, but it would be helpful if scholars were more forthcoming about their approaches. This would certainly make life easier for the undergraduate and graduate students who have to do literature reviews.

It is also worth mentioning three structural changes in the legal academy that have given methodology increased salience. First, the academy is increasingly professionalized, in the sense that doctoral degrees are effectively prerequisites now for permanent (and even temporary) positions in research universities. With professionalization comes increased attention to methodology. Second, interdisciplinary work has become more and more important and influential in recent decades – but without a firm grasp of methodology it is very difficult for lawyers to reach across disciplinary divides. Third, funding is now a key metric for hiring, tenure and promotion in law schools and can also facilitate the ambitious research required to drive the field forward. This funding is often distributed by interdisciplinary panels on which legal scholars are in a minority (if they are present at all). Scholars from other disciplines expect methodological rigour, so if lawyers want to access funding, they have to learn the language of methodology and articulate their approaches accordingly.

Whose work was influential on you throughout the project?

Too many to count! Both of us have long admired scholars who wear their methodological commitments on their sleeves. Reading someone like Peter Cane, for example, it is always clear what methodological framework he is applying. Similarly, some of the leading scholars doing empirical work in public law (such as Professors Simon Halliday and Maurice Sunkin KC, and Justice Lorne Sossin) have blazed a trail we would like to encourage others to follow. In the work of these scholars, their methodological approaches are neatly mapped out and the implications of their work are thus easy to appreciate. We hope this collection will help others to achieve similar clarity of thought and expression.

What challenges did you face in writing the book?

The project concept was developed prior to the pandemic, but the writing and review processes largely took place during and between lockdowns. This presented a range of now familiar challenges, including preventing the contributors from meeting in person. We very much appreciated how all of our contributors produced such excellent chapters in difficult circumstances!

More intellectually interestingly than the challenges of pandemic logistics, there were also various challenges in how we conceptualised the book. One was the lack of any agreed definition of ‘public law.’ Another was how different methodologies ought to be delineated, as there are many overlapping points. On these, and other such questions, we avoided seeking to impose a rigid structure and, instead, invited individual authors to communicate the value of the methodology from their own point of view.

Another dilemma we faced was which methodologies to include. We sought to include a diverse range of methodologies that are relevant to the study of public law, but we also had to be realistic. There are a vast number of ways the subject of public law can be conceived and understood, and we could not hope to do justice to them all. As much as each chapter provides a guide to a particular methodology, we hope the whole book will encourage researchers, particularly early-career researchers, to think more about methodology generally and innovate in their uses of methodologies.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

We hope it advances an important conversation about the place of method in public law—one we think should always be actively developing but is far too often side-lined.  We also hope the book particularly supports students, including research students, grappling with the thorny question of how to conduct public law research.

What’s next?

We are both continuing to expand the methods we use in our own work. Paul is currently working on textbook projects but in his next major research project, on the evolution of the administrative state, he hopes to blend several of the methodologies he learned about through editing this collection: doctrinal, historical and socio-legal. Joe has been working on establishing the Administrative Fairness Lab research programme at the University of York, where researchers from disciplines including law, psychology, social policy, public administration, political science, and computer science are coming together to study law and process in frontline public services.

Paul Daly is the University Research Chair in Administrative Law & Governance at the Faculty of Law, University of Ottawa.

Joe Tomlinson is a Professor of Public Law at York Law School, University of York.

Researching Public Law in Common Law Systems is available from Edward Elgar Publishing.