On the art of writing ph.d theses especially on utilizing doctrinal literature Bjarte Askeland
1. a) The content and learning outcome UNIVERSITETET I BERGEN Some notes on the art and skills of writing The essence and core tasks Emphasising the utilization of previous texts (doctrinal contributions): Hereinafter Theory The magic of critical reading The magic of writing a synthesis A lecture aiming to inspire(!) 27.10.2017 SIDE 2
b) The peculiarities of the method The theorist works on two arenas: Solving singular questions of law Building rules, systems, innovative solutions Hence, the theorist s problem is profoundly different from the judge s: Singular case vs. Types of cases Decision (concrete) vs. Interpretation (abstract) Solve a given problem vs. search for problems Craftmanship vs. Innovation Solution vs. Systemizing
c) Core tasks of legal dogmatics: Analysis Critique Reading, reflecting Today, soon Systemisation (coherence) Yesterday, remember? Theory building An element of generalizing
1 d) Conciousness of your own writing process cognition communicating Borrowed from Prof. Eivind Kolflaaths lecture on Text quality
UNIVERSITETET I BERGEN 2. Utilizing existing doctrinal literature ( previous theory ) 27.10.2017 SIDE 6
2 a) The dimension of time We are standing on the shoulders of other reseachers ( The shoulder metaphor, van Gestel/Micklitz) Hence a text must be read in light of its time period Another consequence: The time period after publication of the text is yours Points of analysis: Are the assertations in the text valid also today? Have presuppositions for the text been altered? Have new circumstances occurred which require supplements to or revisions of the message in the text?
Previous texts: You present the law as of 2017 Timeline 1950 1980 2002 NB! The whole period after the previous text was published is at your disposal
2.b) On reading theory Reading in order to understand one s subject Reading to locate the subject in relation to other subjects Reading problem oriented in order to find substantial arguments Reading critical cf. no. 4 below Reading in order to build your thesis
2.c) Theory ways of utilization 1) Description of the state of the law. («dogma history») 2)Theory presenting the prevailing perception of law 3) Theory as a source of law Theory as a means of understanding (Hohfeld, j. Stuart Mill) 4) Theory as a starting point of your own contribution to legal science. ( shoulder metaphor ) Theory as a discussion partner NB! Important to write normatively
2 d) More about description It is common practice to give an outline of what previous writers have claimed (cf. the shoulder metaphor ) For several purposes: Showing development, Placing your contribution in a context Showing that you are informed and entitled to giving an opinion To build a general platform for your later special elaboration
UNIVERSITETET I BERGEN Technical approaches Different tecniques: A. Writing a summary of previous theory, with references (labour consuming) Ex: Attachment 1 (Marthinussen note 88) B. Writing partly by use of quotations. (Ex. att. 2 (Marthinussen) C. Hybrids of paraphrasing (Ex. Att. 3 Borvik) Many high quality text have started in B and ended in A 27.10.2017 SIDE 12
2 e) Other ways of utilization Theory utilized as a stepping stone for your own elaboration Ex. att. 4 (Øyen) Theory as documentation of valid method Ex. att. 5 (Lunde) Teory a means of saving labour, to move forward by using reference. Ex: att. 6 (Graver) Theory as opponent to your own view (normative writing) att. 7 (Husabø) att. 7 A (Marthinussen)
Ways of utilisation (cont.) Theory as a support to your own interpretation att. 8 (Borvik) Theory as a bank of arguments att. 9 (Andersson) Theory as platform for further development Adding nuances, distinctions, elements of critique and synthesis cf. 3 og 4. att. 10 (Askeland)
3. Critique and innovation
3 a) Key concept: Critique Ethymologic from greek-roman antique literature: distinguish, decide, judge (Michaelsen, Norsk rettstenkning 2012) Originally: The authensity of the text Kant: public examination (Eriksen, Kritikk 2016 s. 18) Scientific critique: Critique based on the standards of the community of researchers?
3 b) Critique within legal science Critical reading in the light of the standards prevailing in the community of reseachers Crtique based on an ideal of coherence Critique based disagreement on values Critique based on failing in craftmanship Critique based on disagreement on the weighing of sources (judicium(?)) Critique of the quality of arguments (based on the community of researchers)
c) Critique of the craftmanship Critique based on the fact that the previous text is not sufficiently thorough. Eks: The author may have overlooked, underspilt, seems to have failed to consider, Eks: Jo Hov s critique of Woxholt; modus operandi. Eks: Jan Hellner s critique of Håkan Andersson, claiming that he had overlooked Gyula Eörsi s Encyclopedia of tort law Critizising inferences: Overinclusive? Underinclusive? Critizising the weighing process Eks: Accusing a previous text of downplaying or overexaggerating a case or another source of law
d) Value-based criticue Critizising previous texts of downplaying certain values Ex: Environmental aspects Typically values which have emerged over the last deccades, cf. The temporal dimension, see no. 1 above.
e) Critique based on a ideal of coherence The law as a coherent system of norms. Critique of theory not meeting this standard Examples: Hilde Hauge. Løsøreerververs kreditorvern (2016) s. 128-155 (investigates whether previous theory is coherent with regard to other sources ) Hagstrøm, Offfentligrettslig erstatningsansvar (1987) (Investigating whether or not Nygaards theory ión strict liability coheres with case law)
4. The product of critique: Synthesis
The potential of synthesis Synthesis is greek and means: the combining of the constituent elements of separate material or abstract entities into a single or unified entity By reading texts a picture of knowledge and a basis of reflexion which is your own, personal, original emerges. Depicting the said picture may in itself overcome the threshold of legal science ( Rechtwisenschaft ). In the associations made while reading the texts in a critical manner lies the possibility of research findings!
Critique; finding deviations from a scientific standard Enhanced understanding Synthesis In order to create Previous text Previous text Previous text New text meeting the standard
Thank you!