research methods questions - first lecture

7/31/2019 Research Methods Questions - First Lecture

1/3

Legal Scholarship. Edward Rubin.

1) Internal view of law means: The person holding the views is involved directly with thespecific law being analysed. Alfred Schutzan internal perspective allows the observer to

actively participate in the social system, or more precisely, in the social practice being

studied (pg 563). The internal perspective on law identifies the central subject matter oflegal scholarship, the area of inquiry that comprises its unique preserve (pg 563).

2) Social policy over rules?? Is new or original about descriptive law.3) Descriptive scholarship has declined within legal circles because a new approach to law has

developed. Since the legal realist movement, most scholars have been convinced that law is

a social instrumentality, a collection of strategies and compromises that have developed

over time to changing circumstances. It possesses meaning, and generally forms a system,

but it is a system whose components are derived from social policy, not from either a

universal moral order or the collective wisdom of the ages. This means that the coherence in

any area of law is low (pg 565).

4) Descriptive: an internal account of the legal rules that govern a particular subject matter (pg564). Internal quality of descriptions is displayed in their doctrinal focus (pg 564). Mostdescriptive work in legal scholarship contains a little bit of prescriptive normative statements

(pg 564). Internal description only makes sense if the system of rules possess coherence, so

a scholar working in descriptive mode will naturally tend to favour changes in the law that

increase coherence (pg 565). Comparative law is frequently descriptive since it derives much

of its value from the accurate presentation of legal rules (pg 566). Prescriptive: Its purpose is

not to describe existing law, but to frame recommendations for the laws improvement (pg

566). Prescriptive law is not based on beliefs, but more based on social policy or public

morality (pg 567). Rather than normative arguments being based on being consistent with

existing law, they are based on being consistent with social policy (pg 567).

Descriptive scholarship can simply be addressed to anyone who is interested, by contrast

prescriptive scholarship is addressed to a particular audience and frames

recommendations based upon specific, often controversial norms e.g. legal scholars,

judges, legislators, administrators, attorneys (pg 566).

5) Jurisprudence: Sometimes described as the philosophy of law or the theory of law. It isdistinguished from philosophy by being part of legal scholarship. Jurisprudence, like legal

scholarship in general adopts an internal approach to the legal system. It discusses the

general structure or the underlying morality of the legal system from the perspective of that

system and aspires to capture the meaning that the legal system possesses for its

participants (pg 569). Focus on the legal system itself and derive insights from the

examination of that system rather than a general analysis of the state (pg 570). It is

distinguished from ordinary descriptive and prescriptive legal scholarship by its meta-

descriptive character (pg 570). What renders causation in the law a work of jurisprudence is

that it cuts across the standard categories, defining its own frame of reference rather than

operating existing ones (pg 570). Jurisprudence, like ordinary legal scholarship can be either

descriptive or prescriptive. Descriptive works regularly argue against the meaningfulness of

jurisprudential prescription, although not against the social policy prescriptions of ordinary

scholarship. Prescriptive jurisprudence, on the other hand often criticises descriptive work

for its positivistic focus (Pg 571). Philosophy: beliefs, viewpoints and ideas.

Jurisprudence is legal scholarship, with an internal approach to law. Its practitioners are

concerned with the character of law itself whether it is inherently normative or merely a

means of implementing externally established choices. This debated is not particularly

relevant to non-legal philosophers who would be prepared to consider either

characterisation and then judge the result by whatever conceptual or ethical system they

employ.


2/3

Introduction to Legal Methods: Approaches to Law and Legal Reasoning. C. Stychin and L

Mulcahy.

6) The positivist approach to the definition of law is, any law which satisfies the appropriatetechnical criteria of enactment counts as law (pg 6). Positivism is a philosophical position

which asserts that scientific knowledge derives from observation of the data of experienceand not from speculation that seeks to look behind observed facts for ultimate causes,

meanings or essences (pg 7). It can be criticised because of the absence of reference to its

moral quality.

7) Within the UK Legal Realism has expressed itself in two different movements; socio-legalstudies and critical legal studies. The socio-legal community represents a broad church.

Socio-legal researchers undertake library based theoretical work, empirical work which leads

to the development of grounded theory as well as more policy orientated studies which feed

directly into the policy making process (pg 11). Whilst there is increasingly more dialogue

between offspring of legal realism, critical legal scholars have been more vociferous in their

criticisms of the ideological foundations of the current legal system (pg 12). Realists were

not concerned primarily with legal rules, i.e cases and statutes, but they were ratherconcerned with what actually happened when the legal system was at work (pg 11).

Legal realism is the view that we should understand the law as it is practiced in the courts,

law offices and police stations, rather than as it is set forth in statutes or learned treatises.

It differs from positivism and natural law because natural law olds that law and morality are

connected. Law is not simply what is enacted in statutes and if legislation is not moral then it

is not law and has no authority. Positivism emphasises the separation of law and morality.

According to legal positivists, law is man-made or posited, by the legislature. Where natural

law theorists may say that if a law is not moral there is no obligation to obey it, by appealing

to moral or religious principles, but positivists hold that until a duly enacted law is changed,

it remains law and should be obeyed.

Natural law and natural rights are for example rights of property were seen as natural andthe function of property law was therefore to preserve the rights of the property owner (pg

8) Bentham disagrees and takes a positivist approach. Positivism is a label which has been

used somewhat imprecisely for a variety of theories and ideologies, but for present purposes

the principle beliefs associated with the positivist tradition can be said these: first, laws are

commands of human being addressed to other human beings; second, there is no necessary

connection between law and morals; third, the analysis of law and legal concepts is a true

scientific inquiry which is concerned with the formal requirements of valid law, and not with

its content; and forth, judges when deciding new points of law must confine themselves to

legal arguments and not rely upon moral or policy arguments (pg 9).

8) Critical legal scholars argue that the law can never be totally value-free and neutraldo youagree? Yes. The law is based on morals and values and systems/rules that in theory should

make the nation a better place to live. I cant see how the law can be neutral??

9) Yes there is a point to descriptive legal scholarship as coherence can be increased and is agood method to use in comparative law.

10)Doctrinal: belief/systems of belief. Taught by a teacher. Concepts. Rules/regulations, basedon documents and legal court decisions. Doctrinal research is narrower than non-doctrinal

but it can be seen as more important than non-doctrinial. Non-doctrinal: Based on social

values and social institutions, more based on people and society.

My tongue is mine ain: Copyright, the Spoken Word and Privacy. Hector L. MacQueen.

1) Summary of argument: Copyright can be an effective way to protect the legitimate interestsof the individual, in particular interests in privacy and in ensuring that ones spontaneous or


3/3

extemporary speech is not exploited for gain by others without consent. Four things covered

by the 1988 Copyright Act unless the owner agrees that they are particularly relevant to the

interests of the speaker in using the words: 1. Copying the work, 2. Issuing copies of the

work to the public, 3. Performing showing or playing the work in public and 4. Broadcasting

the work or including it in a cable programme service.

2) This article is more descriptive.3) It is worth publishing in a prestigious law journal because it demonstrates how incoherentthe law is regarding the copyright of spoken audio and the differences in approaches to

speech in copyright law in the UK, USA and Australia.

4) xxx5) The research approach taken by the author: Critical Legal Studies, Comparative.6) Different approach: Black Letter.

A Suicidal Woman, Roaming Pigs and a Noisy Trampolinist: Refining the ASBOs Definition of Anti -

Social Behaviour. Stuart Macdonald.

1)

Summary of argument:

2) This article is more3)4)5) The research approach taken by the author:6) Different approach:

research methods questions - first lecture

Documents