On the art of writing pH.Dtheses – especially on

utilizing doctrinal literature

Bjarte Askeland

1. a) The content and learningoutcome• 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(!)

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UNIVERSITETET I BERGEN

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 profoundlydifferent 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– Systemisation (coherence) – Theory building An element of generalizing

Yesterday, remember?

Today, soon

Reading, reflecting

cognition

communicating

Borrowed from Prof. Eivind Kolflaaths lecture on ”Text quality”

1 d) Conciousness of your own writing process

2. Utilizing existingdoctrinal literature(”previous theory”)

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UNIVERSITETET I BERGEN

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 thetext?

Timeline

You present thelaw as of 2017

1950 1980 2002

Previous texts:

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´ssubject

– Reading to locate thesubject in relation to other subjects

– Reading problem oriented in order to find substantialarguments

– 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 shouldermetaphor”)

• 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

Technical approaches• Different tecniques:

• A. Writing a summary of previous theory, withreferences (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

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UNIVERSITETET I BERGEN

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 critiqueand 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 thecommunity 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 theweighing of sources (judicium(?))

• Critique of the quality of arguments (based onthe 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 thelast deccades, cf. The temporal dimension, seeno. 1 above.

e) Critique based on a ideal ofcoherence• 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 previoustheory 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!

Previoustext

New textmeeting the

standard

Enhancedunderstanding

SynthesisCritique; findingdeviationsfrom a scientificstandard

In order to create

Previoustext Previous

text

Thank you!