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Lecture Notes on Legal Methods (30/10/03)
- Is there such a thing as legal science? Does legal science transcend national legal systems?
SECTION ONE: Legal Methods
1) Rules of Statutory Interpretation:
1. The Literal Rule
2. The Golden Rule
3. The Mischief Rule
4. The Purposive Approach
5. Integrated
2) The Doctrine of Precedent or Stare Decisis
1.
2.
1.
2.
3.
Ratio decidendi and obiter dictum
Definition of ratio decidendi:
“Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his
conclusion.”
Binding precedents
The following constitute binding precedents:
The ratio of a decision of a court in a previous case is binding on lower courts in the same court
hierarchy.
Some courts are bound by their own previous rationes.
Persuasive precedents
There can be said to be three kinds of persuasive precedents:
The ratio of the decision of a lower court [or sometimes the same court] in the same court hierarchy.
The ratio of the decision of any court in another court hierarchy.
Obiter dicta.
3) Coherence
According to Ken Kress the coherence theories of law have a special claim on us: “The idea that law is
a seamless web, that it is holistic, that precedents have a gravitational force throughout the law, that
argument by analogy has an especial significance in law, and the principle that all are equal under the
law, provide strong prima facie support for a coherence theory of law”.
4) What is the Relationship between Legal Method and Coherence?
SECTION TWO: Previous discussions on the nature of scientific knowledge
See Geoffrey Samuel, Epistemology and Method in Law (Aldershot, Ashgate, 2002)
- The focus of legal method is narrowly judge orientated, but most practising lawyers and legal scholars
readily admit that much of law in practice is never brought before a court or gets near a judge.
- What is law: is it the law on the books or the law in action?
- What is law: from whose point of view are we to consider the law
- The German legal scientist views the law as a system of principles and axioms. Legal knowledge is for
such a jurist a matter of concise propositions systematically arranged in an abstract world of concepts.
- Oliver Wendall Holmes: If we take the view of our friend the bad man we shall find that he does not
care two straws for the axioms or deductions (from principles or ethics), but that he does want to know
what the Massachusetts or English Courts are likely to do.
- Equally the knowledge structure of a policeman and the prison officials will probably be different from
that of the judges
- The point to be stressed here is that there is no single idea of what it is to have legal knowledge.
- Much depends on what William Twining called standpoint or point of view in an observational sense.
SECTION THREE: Law as A Participant Oriented Discipline
Excerpt from the introductory chapter to Reza Banakar, Merging Law and Sociology
(Berlin/Wisconsin, Galda + Wilch, 2003).
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…Law is “a participant-oriented discipline” and as such tends to give priority to definitions and
approaches which are based on “practical insider attitudes”. 1 The inside/outside distinction also
became useful in that it helped to counteract the tendency in legal studies to present one participant
standpoint, such as the standpoint of the appellate judges or Law Lords, as the only legally relevant and
valid perspective on law and to neglect a variety of other standpoints, such as those of the plaintiffs,
legal advisors, jurors and prosecutors. The distinction also impresses on the outside observers, such as
social scientists analysing law and legal behaviour, that the law and its effects on society cannot be
sufficiently grasped and analysed without taking into account the practical insider attitudes which
mould its internal mechanisms.
My understanding of what was at stake gradually changed due to the realisation that notions of
“insider” and “outsider” did not represent unchangeable social factors and were, in fact, subject to
variations in different cases. Despite the fact that the operations of the legal system hinge on law’s
ability to sharply distinguish between the legal and the extra-legal, the inside and outside of law could
not be conceptualised in immutable and absolute terms, for the simple reason that the boundaries of the
law were constantly in flux and its content was a matter of endless negotiations. The inside and outside
of law were, instead, variables indicating two relative forms of experience, i.e. experience-near and
experience-distant manifestations and perceptions of the law. These experiences were, in turn, shaped
by the social context, which defined the “inside” and the “outside” of the law in relation to those people
and circumstances that reproduced the law and its institutions at any given time and place. An
individual (such as a policeman or an academic lawyer) or an organisation (such as the police or the
law faculty) could be “insider” in one relationship and, at the same time, “outsider” in another
relationship or social context. An arresting officer could be regarded as an insider to the law from the
point of view of a detainee, but as an outsider from the point of view of the prosecutor, the defending
attorney or the magistrate. A solicitor can be regarded as an insider when advising his or her clients, but
as an outsider in the Inns of Court.
The usefulness of making a sharp distinction between the perspectives of insiders and outsiders can
be further questioned from an action theoretical perspective and by bringing into consideration the
notions of “observation” and “participation”. 2 To put it differently, on the basis of the specific
standpoint adopted by various actors in respect to law and the degree to which they participate in legal
processes, we can describe a variety of distinct approaches to, and experiences of, law and legal
institutions. For example, some social actors, such as journalists reporting on a trial proceeding,
observe the law from the outside without being involved in its processes (they can be called “outside
observers”). Others, such as judges or barristers participate in its reproduction (they are “inside
participants”). Another group, such as solicitors advising clients or briefing barristers observe the law
from within, without engaging in legal processes themselves (they become “inside observers”). Yet
another group consists of outsiders, such as plaintiffs or lay judges, who temporarily participate in legal
processes (they are “outside participants”). The diversity of standpoints on law in relation to the actor’s
degree of “participation” in legal processes cuts across the simple distinction between the inside and
outside of law.
The notions of inside and outside of law are not obsolete, but they are not absolute either. They
simply vary from case to case and from time to time, which means that they become sociologically
meaningful and useful in relation to specific social contexts and times. In this sense, by distinguishing
the legal from the extra-legal and, thus, momentarily defining the inside and the outside of the law, a
temporary time/space (legal) grid is imposed on social reality. Also, the law’s contextual imposition of
a grid helps us to understand how the law manifests itself simultaneously at various levels of social
reality. This is one of the valuable ideas developed by Georges Gurvitch and presented in relation to
more recent empirical research in Part Two.
Although the original focus on the distinctive differences between how lawyers (defined as “inside
participants”) and sociologists (understood as “outside observers”) view the law was useful in describing and
examining the interdisciplinary tensions permeating socio-legal research and scholarship, and also highlighted
the difficulties connected with integrating sociological and legal forms of knowledge, it otherwise analytically
and empirically restricted the investigation into the interdisciplinary challenges of the sociology of law. This
turning point is presented in Chapter Five, where the development of the sociology of law is compared with
1 William Twining, Globalisation and Legal Theory (London, Butterworths, 2000) at 129. Twining is here referring to H. L.
A. Hart, The Concept of Law (Oxford, Oxford University Press, 1988) at 88-91. Also see the notion of “the bad man” in O. W.
Holmes, “The Path of Law” in (1897) 10 Harvard Law Review 457. “The bad man”, who might be an ordinary citizen, a lawyer
advising a client or a sociologist studying the law, “does not care two straws for the axioms or deductions” and instead is only
interested in what “the courts are likely to do in fact” (Holmes, ibid., at 457). In this way, Holmes draws attention to the
significance of the external standpoints in respect to law and legal decisionmaking. At the same time “the bad man” highlights
the limitations of a concept of law which is exclusively based on the internal standpoints, such as those entertained by some
judges, legal scholars and other high priests of the institutions of law. For a critique of external theories see Ronald Dworkin,
Law’s Empire (London, Fontana, 1991) at 14.
2 See Twining, above at 129.
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that of the sociology of medicine and lessons are taken from the sociology of religions concerning the
insider/outsider dichotomy….
Participation
Insider’s
Perspective
Outsider’s
Perspective
Observation
1. Inside Participant
- Judges
Barristers
2. Inside Observer
- Legal Advisors - Legal Scholars
3. Outside Participant
- Juries
- Plaintiffs
4. Outside Observer
- journalists
- sociologist
SECTION FOUR: The Feminist Method
Anne Bottomely: “By drawing on other disciplines we are now asking if not only the practice of law silences
women’s aspirations and needs, and conversely privileges those of men, but whether the very construction not
only of legal discourse, but representations of discourse in the academy (the construction of our
understanding and knowledge of law) is the product of patriarchal relations at the root of our society”.
Law achieves this in three ways:
1) Boundary definitions: It is a process thereby certain matters are identified as outside the realm of
law, i.e. certain matters are identified as political or moral rather than legal.
2) Defining relevance: For example the student of law learns that it is “relevant” in cases of rape to
know the victims’ sexual history.
3) Case analysis: Some cases become good law even though there is a vast choice. It is not necessarily
logic that lead judges to the right decision. Cases are decided in a post hoc fashion.
See Carol Smart, Feminism and the Power of Law (London, Routledge, 1995):
- Law sets itself above other forms of knowledge by claiming to have the method to establish
the truth (which is taught at law schools.
- A more public version of this method is found at criminal trials, where judges and juries can
come to correct legal decisions.
- The fact that other judges in the higher courts may overrule some decisions only goes to prove
that the system ultimately divines the correct view.
- Law’s claim to truth is not manifested so much in its practice, but rather in its ideal.
- However, law extends itself beyond uttering the truth of law, to making such claims about
other areas of social life: “No matter how you may dispute and argue, you cannot alter the fact
that women are quite different from men. The principal task in the life of women is to bear and
rear children:… He is physically stronger and she the weaker. He is temperamentally the more
aggressive. It is he who takes the initiative and she who responds. These diversities of function
and temprament lead to different outlook which cannot be ignored. But they are, none of them,
any reason for putting women under the subjugation of men” (Lord Denning 1980: 194)
- The judge is held to be a man of wisdom, a man of knowledge, not a mere technician who can
ply his trade.
- Here Denning is articulating a truth about the natural differences between women and men.
- He combines the Truth claimed by socio-biology (i.e. a “scientific” truth) with the Truth
claimed by law. He means that there is no point for disagreement…
- In this sense the feminist position is reconstructed as a form of “disqualified knowledge”,
whilst the naturalistic stance on inner gender differences acquires the status of legal truth.
Law’s “Truth”
Excerpt from the introductory chapter to Reza Banakar, Merging Law and Sociology
(Berlin/Wisconsin, Galda + Wilch, 2003).
… In her study of rape, Carol Smart reveals some important aspects of law’s internal mechanism for
producing images of society, in general, and gender relations, in particular. Smart argues that the legal
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method, which is epistemologically based on the application of a number of binary opposites such as
guilt/innocence, lie/truth, culture/nature, man/woman and rationality/emotionality, is formed in such a
way as to disqualify knowledge derived through other methods.3 In criminal trials of rape, it operates
through the binary logic of truth/untruth, guilt/innocence and consent/non-consent as a rigid system of
exclusion, including only what is deemed relevant in legal terms, which may be irrelevant to the
question of rape as far as women are concerned.
The rape trials hinges on whether consent or non-consent can be established. In practice it would seem that
consent is assumed and the raped woman must prove non-consent…[T]he consent/non-consent dyad is
irrelevant to women’s experience of sex. Neither begins to approach the complexity of women’s position
when she is being sexually propositioned or abused. This is not to say that women themselves do not know
whether they want a sexual encounter or not, but the “telling” of a story of rape or abuse inevitably reveals
ambiguities. Hence a woman may agree to a certain amount of intimacy, but not to sexual intercourse.
There is also no room for the concept of submission in the dichotomy of consent/non-consent which
dominates the rape trial. Yet submission may be what the majority of raped and sexually abused women
have endured. In other words, in fear of future violence or in fear of losing a job, women may submit
unwillingly to sex. Yet in legal terms submission fits on the consent side of the dichotomy. Having
submitted, but failing to meet the legal criterion of non-consent, women are deemed to have consented to
their violation. The only alternative when non-consent is not established is to presume consent—and hence
the innocence of the accused.4
Law sets itself outside the social order and above all other forms of knowledge using its legal
method and rigour to reflect upon the world from which it is divorced. 5 It exercises its authority
through its “claim to truth”, writes Smart, and consistently fails to understand the accounts of rape
which do not conform to the narrowly constructed legal definitions (or Truth) of rape. Law has its own
understanding of women, sexuality and rape, which is internally produced and revealed in decisions
and opinions of judges and courts and the discourses of legal scholars. For example, time and again we
come across statements by judges that women are liable to be untruthful and when they say no do not
always mean no.6 This also reveals the maleness of the law and the fact that its methods are used to
realise this maleness internally.
3 Carol Smart, Feminism and the Power of Law (London, Routledge, 1995).
4 Smart, ibid., at 33-34.
5 Smart ibid., at 11.
6 Smart ibid., at 35.