Dennis Patterson (European University Institute) has posted Methodology and Theoretical Disagreement (ESSAYS IN EUROPEAN LEGAL METHOD, Ulla Neergaard, Ruth Nielsen and Lynn Roseberry, eds., DJOEF Publishing, 2011) on SSRN. Here is the abstract:
Methodology matters. The ways in which it makes a difference are varied but, in law, methodology cannot be separated from one of the most fundamental questions: how do we decide what the law is? In this paper, I want to look at the problem of methodology from the point of view of philosophical questions about the nature of law and how we decide what the law is on any given question. To that end, I shall consider the problem of “theoretical disagreement.” This topic is among the most contested in contemporary analytic jurisprudence. I believe that debate can tell us something about methodology, not only its importance but the importance of keeping the right perspective on the role of methodology in legal reasoning.
This is a keen and compact essay that focuses on disagreements about legal theory methodology, with special emphasis on the European context. Highly recommended.