David Foster Wallace, Infinite Jest, 1996 (quoted from Backbay 10th anniversary paperback edition).

Yes, the quote is long. But consider what it says and ask yourself the question the West has sought to answer ever since the War: How can we regulate the risk of rising populism? David Foster Wallace warned in Infinite Jest in 1996 that early in the new millennium populism would resurge. Too few heeded his warning. Now it has arrived, exactly in the form and face he predicted: Johnny Gently, Famous Crooner, has just become the 45th U.S. President.

It is quite possible that there is no single way of preventing populism permanently. This makes it urgent for the European Journal of Risk Regulation to turn its attention to the matter. The Journal’s editor probably did not have that kind of risk in mind when he founded it some six years ago. The idea had probably been to address classic regulation, such as banking, foodstuff, disaster response regulation, etc. But can the Journal afford to ignore the ultimate risk to the ultimate public good – now, of all times? New ways need to be found to fortify the rule of law against lies, hatred, and violence which, in a post-truth age, spread unfiltered; new ways need to be found to convince younger generations of the value of democracy; new ways need to be found to allow more to participate in the fruits of technological progress. The Journal urgently needs to contribute its part to the Herculean task of finding these new ways. Fortunately, it is well positioned to do so. Its range of authors is impressive. It has a track record of flexibility. It easily accommodates interdisciplinarity. And it can further encourage good research. (More on this below.)

My first encounter with the Journal was in 2010. I had just presented a crazy paper in Maastricht, at a conference for young scholars organised by Ellen Vos. I had written the paper immediately after submitting my PhD thesis, when I felt a strong need to indulge in mathematics. The paper focused on chaotic phenomena. I remember well Michelle Everson’s help in Maastricht, when the weight of my demonstration of chaos threatened to collapse a conference table. After the conference, the newly-founded European Journal of Risk Regulation seemed an ideal, quick outlet for the paper. Surely, I thought, the editor would have to accept any paper in the early founding phase of the Journal. That there would be peer-review with an anonymous, independent expert commenting on my paper came as somewhat of a surprise. After initial unease, it was even more surprising when the comment arrived after a couple of days. It read something like: “This is unusual. I have no comment to make. Kudos to the author.” (I had to look up the word “kudos”.) The paper came out in issue 4 of volume 1. To my knowledge, no one has ever cited it. (Except myself.) But unless I am totally mistaken, it got me a job at the University of St. Gallen.

Any academic career is a “remarkable story of risk”Footnote ¹ – in the law perhaps even more than in other disciplines. One reason for this is that in law there is little agreement on methodology.Footnote ² Opinions diverge widely on what legal science is.Footnote ³ There is no clear hierarchy in publication outlets/journals, either. (Clearly though, journals at Cambridge are better.) It is even unsure whether the law is a scientific discipline in the first place. This leaves academics in the law in a state of uncertainty. Consequently, their work tends to be more opinionated than in other disciplines. It relies more on eminence. It is also often written with an eye on lucrative practice.Footnote ⁴ Academics in law tend to ignore that other disciplines adhere to clear standards of science involving evidence, experiments, reproducibility, and transparency. It seems that, while scientists do research, lawyers practise politics.

To be clear, there is a place for legal practice. Practitioners of the law have an important role in democratic states. Part of this role is to fight the battle of ideas, both in court and in public. It is the task of universities to prepare students accordingly. But this is only one of the tasks of universities. Another task, equally important, is research. In other disciplines, like economics or engineering, the combination of research and practice works well; genuine research does not prevent practice. The two are co-existent and profit from each other. It is just in law that practice mixes with research, so that the two become indistinguishable and the latter, in effect, comes to serve the former.

What should be done about this state of affairs in the law? And more specifically, what can the Journal do about it? First, be realistic. The law is as old as mankind and it has always been in bed with politics. This is unlikely to change soon and perhaps this is for the better. Yet, the Journal could still encourage good research. The Journal could insist on authors identifying a research question and answering it by researching a clearly identified body of “facts” and “data”, such as a specific volume of case law. Interviews may have a place in this, too, as may all other standard social science research tools. One part of the formulation of a good research question is a discussion showing that other researchers have not answered the question before. Moreover, for researchers in law, answering a research question almost always implies researching the past, namely the history of norms and case law. As historians agree,Footnote ⁵ description is a necessary part of research. Admittedly, all of the above is rather basic. But given the number of articles published that are limited to descriptions of the law as it presently stands followed by the authors’ “opinion”, it is perhaps not all that obvious for everyone. While clients are served well by practitioners and their opinions, the research community expects more from scientists. In research, the researcher’s opinion is irrelevant, save to identify areas for future work.

So, the time has come for the Journal to embark on another journey. It could start by contributing some good legal science on the risk of populism. Somewhat paradoxically, this would take the Journal into political spheres. Yet, what comes out of good science often becomes politicized. This should certainly not prevent scientists from doing their job in the first place, while it is up to politicians and practitioners – and the people more broadly – to make use of the results of science.