Photo by Olha Ruskykh on Pexels

We are Doctoral Researchers in law in the RELIEF Project. In our research, we have been applying concepts stemming from the economics discipline. We have both encountered similar challenges when doing so, which we view as akin to the translation of a book from one language to the other. This blog post discusses the main methodological challenges we have encountered and how we have addressed them. Although the examples focus on the two concepts that we use in our research, growth dependence and path dependence, such challenges and our approach to overcoming them could apply more broadly to the use in legal research of any concept stemming from other disciplines.

To begin with, a brief overview of what the concepts mean, their theoretical roots and current applications in legal research is in order. Then, we discuss the challenges we have encountered to grasp the concepts in their original meaning, before delving into how they can be tailored to legal research, and acknowledging the limits of translation.

Growth dependence is defined by Corlet Walker and others as ‘those conditions that require the continuation of economic growth in order to avoid significant psychological, social, and economic harms’. It originates from ecological economics, a field of economics that examines the interdependence of human economies and natural ecosystems. It has not been used in legal research before Myele’s, as it has so far essentially remained within the field of economics. Path dependence, in turn, is defined by Greener as ‘the tendency of institutions or technologies to become committed to develop in certain ways as a result of their structural properties or their beliefs and values’. Its theoretical roots are similarly found in economics as well as business and organisation studies. However, unlike growth dependence, path dependence has been applied in legal research, e.g. in comparative legal studies and in the analysis of legal development, particularly in the system of common law.

Grasping the original concepts: what if they are unclear?

The two concepts are somewhat undetermined. Indeed, there is no scholarly consensus on their definition and underlying assumptions are not always clearly articulated by researchers.

Research findings on the identification of growth dependencies are determined by the definitions adopted by the researchers. Ecological economists tend to develop their own definition of growth dependence for the purposes of the research conducted, and how it is defined influences the characterisation of growth dependencies. For example, some scholars would consider that there is a growth dependency when there are adverse consequences on socio-economic systems if Gross Domestic Product (GDP) declines, while others would consider that adverse consequences also need to be demonstrated if GDP stagnates for a growth dependency to be characterised. This means that a legal researcher who wants to use ecological economics’ findings on growth dependencies as a basis for legal research needs to choose a definition and then exclude research findings that do not meet that definition’s criteria for characterising a growth dependency. In a similar vein, growth dependency is sometimes used interchangeably with the related term growth imperative. The researcher therefore needs to assess whether findings on growth imperatives can be included. An argument could for instance be made that the threshold for characterising a growth imperative is higher than for a growth dependency. This would mean that the concept of growth imperative is encompassed within growth dependency, and findings on growth imperatives would therefore be included. In addition to this lack of clarity regarding the threshold for characterising a growth dependency, existing research on growth dependence rarely makes explicit nuances in growth dependence intensities above that threshold. The concept tends to be employed in a black-and-white manner: either a socio-economic system is fully growth dependent, or it is not. However, there is potentially a whole range of growth dependence intensities within socio-economic systems. To add nuance to the findings, a possible solution is to present economics depictions of growth dependent and growth independent systems as ideal types, in between of which there is a whole range of nuances of growth (in)dependence.

Likewise, path dependence studies do not rely on a clear definition of path dependence, and the confusion that this creates is carried over to the legal discipline. Path dependence has often been used loosely in research, associated with the statement that ‘history matters’, without much thought to its meaning and sufficient criteria through which researchers could establish when, how and to what extent history matters in a particular situation. This makes it difficult for research results to be validated. Indeed, as the concept is unclear, distinct forms (or intensities, e.g. weak, semi-strong and strong) of path dependence phenomena have frequently been conflated and taken as similar. This can be problematic because, without proper distinction, the identification of a path dependence might not be plausible and accurate, which can have detrimental effects on decision-making relying on the findings. In making the distinction, the researcher is able to draw insights as to whether and how a situation could have been different, understand how it might be adapted, adjusted or reversed, if needed, and evaluate the potential consequences of changing direction. Therefore, careful distinction between different forms of path dependence when identifying path dependencies can help researchers design measures to address them. In our research, the costs and benefits of change in paths were laid bare, supported by the review of existing information, the conception of possible alternatives, and the explicit distinction between different path dependence intensities and the terms associated with them. For instance, we used the term quasi-irreversibility to refer to the strong form of path dependence, and chronological path dependence to refer to the weak form of path dependence.

The translation process: how to tailor the concepts to the law?

The concepts of growth dependence and path dependence have been designed without legal applications in mind. As a result, they need to be adapted and contextualised to be compatible with legal research.

Our experience reveals that this is very much the case for growth dependence, due to the absence of legal research on which we could rely. When applying growth dependence to legal research, our objective was to examine the role of the EU founding Treaties in reinforcing growth dependence in the EU. To this end, we used economics findings on growth dependence as a conceptual frame through which to critically analyse the EU Treaties. However, connecting the EU founding Treaties with economics findings on growth dependencies has been a challenge. Indeed, the scale of analysis was different: while ecological economists’ findings on growth dependencies take a bird’s-eye view on socio-economic systems, legal research takes a more detail-oriented approach, the analysis being generally conducted at the level of specific provisions. A bridge therefore needed to be built between these two levels of analysis. The solution found was to use policies as a bridge: ecological economists have proposed policies to address growth dependencies, and whether these policies can be implemented in the current EU treaty framework can be analysed straightforwardly using legal research methods.

For path dependence, whose study is not entirely a stranger to law—because it has been used as a theoretical framework in legal research (e.g. here, here and here)—our objective was to  analyse the balance law needs to strike between stability and change. In our research, we applied the concept of path dependence to doctrinal legal analysis of the general principle of legal certainty, given that the continuity and stability of path dependence connects it with the objective of legal certainty in legal systems. In a sense, path dependence dynamics operationalise the principle of legal certainty. The overarching connection between the concept of path dependence and the general principle of legal certainty provided the foundation through which the translation process could take place in specific legal contexts and in light of specific legal norms. Overall, path dependence offered a relevant tool to explain how legal doctrines have evolved to shape the content of the principle. It could help answer questions pertaining to the temporal elements of legal certainty, such as: is it possible to reverse a particular legal trajectory whose outcome proved inadequate? How far back in time could this reversal potentially go within the limits of legal certainty? How could legal systems pursue flexibility and mitigate the cost of change in the future? Specifically, path dependence provided an analytical framework to grasp the influence of the Energy Charter Treaty (ECT) on the development of EU energy law. This legal instrument illustrated the relevance of law’s past and what constrains the past creates for today and into the future. As a case study, this legal instrument was understood as containing legal path dependencies and enabled us to investigate the downsides of path dependence, as well as how these issues affect the role of legal certainty in building flexibility into EU law.

When using the concept of path dependence in legal research, one also needs to be aware that social sciences research primarily approaches path dependence as an explanation for inefficient outcomes. This is understandable, as path dependence is strongly linked to the pursuit of efficiency, on account of the concept’s original development in economics. In this sense, path dependence has typically been identified when a situation or outcome is inefficient and undesirable, as the explanation for why that situation or outcome has persisted, nonetheless. This negative connotation of path dependence has to be kept in mind when the concept is translated to other disciplines, because other disciplines may have different aims, and there is a risk that the concept is used in a way that is disconnected from its original background, thus losing its value. Law, for example, primarily approaches stability as an asset, so legal research can aggravate this restricted view of path dependence. As law is biased against change, legal scholars may have to provide a more balanced representation of path dependence, one that understands the two sides of the concept.

The limits of translation: when to stop?

Unsurprisingly for concepts that were not designed with legal applications in mind, there are limits to translating these concepts to legal research. Awareness about what research questions and objectives these concepts cannot support can guide the methodological design and ensure the reliability of the research.

Regarding growth dependence research, we have observed that research so far focuses on macro-level dynamics and economic mechanisms and variables and tends to obscure social interactions and power relations. This means that it offers limited tools for legal research that seeks to examine how legal provisions that reinforce growth dependence have been shaped by social interactions and power relations. Growth dependence research also considers normative questions only at the margins. It has identified which properties and functions of socio-economic systems need growth to function, but it has only questioned to a limited extent which properties and functions of socio-economic systems need to be maintained. For legal research aiming to critically analyse normative choices made in current legal systems, growth dependence would not offer a useful analytical framework. Lastly, and perhaps, more importantly, ecological economics findings on growth dependencies may not be applicable at all to some legal systems. Indeed, existing growth dependence research does not take seriously differences between local contexts and in time and tends to take as a context for analysis European socio-economic systems. This means that research results may not be applicable to socio-economic systems outside Europe and may therefore be of limited use.

Regarding path dependence research, it is a tool for explaining the past, significantly limited to a retrospective approach. This entails that it does not offer a valuable tool for predicting outcomes, and it is therefore limited in the guidance it can provide to problem-solving in the law. This is an issue because laws are generally forward-looking in that they are adopted to continue into the future for an indeterminate period of time. Thus, predictions of legal outcomes are relevant for enabling the law to tackle problems of the present and help adapt legal systems for the future. Path dependence also constrains legal imagination because it cannot capture the big picture of alternative pathways that might have been available.

All in all, our research shows that economics concepts can provide useful lenses to understand legal systems if careful consideration is put into clarifying the original concepts, adapting them to legal research, and understanding the limits of translation. If these precautions are taken, the two concepts we studied can provide important insights for the transformation of legal systems for sustainability, especially by showing how legal systems currently slow down sustainability transformation. However, because they focus on constraints rather than on opportunities for change, they need to be complemented with forward-looking approaches on how to transform legal systems for sustainability.