It’s the (science of) law, stupid!
What is the position of the science of law in the field of science? Is it useful to legal scholars (impact) or society (importance)? Repositioning law as a science can influence both! But internal and external factors have to be reconsidered.
Can law as a science be more useful? Is it not useful (enough) at present? Law as a science shows a rather low (but rising!) number of published articles, but the level of citations - the impact factor - is the lowest of all sciences (see Dialogic 2012). Is this a representation that does “justice to the science of law”? And if so, should we do something about it? Of course the impact factor is not a universal yardstick. Working in a narrow strict national monodisciplinary area results in a low (international) impact factor. Increase the scientific playing field - extension of the market in economic terms – and the impact factor will be higher. Crossing borders, more cooperation and multidisciplinary, multilevel research means that scientific knowledge is useful for a greater scientific community. But is this solely cosmetic? Or is law as a science also useful (important) for society?
Is this field of science perceived as important? Only 3.2% of all funds available for research is allocated to the study of law (Rathenau Institute 2012). Did you expect that? Is law as a science that unimportant? Is it less valuable or useful? Does it have fewer prospects for new findings, or in economic terms: does it generate diminishing returns? Of course radical innovations (groundbreaking ideas) will perhaps not be made – compared to the beta sciences - but incremental findings do occur. The problem with law is that it is not always visible; it is hidden and has an indirect effect. But we should not conclude that it is therefore less essential.
Certainly law is important for society. Douglas North has shown that it is important. How could societies exist without it? Most developed countries contain elaborate multilevel law systems. Law fulfils important functions. It has to do with how people live together. How they cooperate, compete and sometimes have conflicts. Law enables and constrains behaviour, in a way it creates and sustains Popper’s open society. Law coordinates and controls behaviour so that people can specialize, exchange and can combine their efforts. This is also essential for creating and diffusing knowledge. Does law as a science address these problems? Of course it does; doesn’t it? But it does have some peculiar characteristics: it is normative, designing, national oriented, non-empirical and often monodisciplinary (Carel Stolker wrote extensively about this). So internal barriers prohibit a higher impact factor.
What about external developments – is law as a science still useful, relevant or important for society? Or does society require law as a science to be repositioned? Our global society is becoming more complex, connected and rapidly changing. The way people exchange and trade is more dynamic, fluid and virtual. Knowledge becomes an essential resource, but it contains other characteristics then basic resources or commodities. People easily cross borders and boundaries; technological innovations and the digitalized world mean that more information and data can be easily transmitted, transformed, but also (mis)used and expropriated. This creates new challenges for law as a science; should it resemble these developments in society? Be more open, thinking outside the boxes and incorporate cross border perspectives perhaps based upon a multidisciplinary research focus? To illustrate the empirical consequences of law? The scientific agenda of the KNAW (2011) contains 49 challenging scientific research questions. It includes the topic “Society and resilient institutions”. It contains 7 challenging subjects in which law fulfils essential functions. Should law as a science resemble societal developments and accept the challenge? Of course monodisciplinary research and publications in popular media are necessary components of law as a science, but crossing borders can increase its usefulness for scholars (impact) and society (importance). And is frontier research not the ultimate goal of science? Even if the conclusion is that no (new) law is needed after all?