Research Methods for Law

By Mike McConville; Wing Hong Chui | Go to book overview
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Introduction and Overview

Mike McConville and Wing Hong Chui

Legal scholarship has historically followed two broad traditions. The first, commonly called ‘black-letter law’, focuses heavily, if not exclusively, upon the law itself as an internal self-sustaining set of principles which can be accessed through reading court judgments and statutes with little or no refer- ence to the world outside the law. Deriving principles and values from decided cases and re-assembling decided cases into a coherent framework in the search for order, rationality and theoretical cohesion has been the fodder of traditional legal scholarship.

A second legal tradition which emerged in the late 1960s is referred to as ‘law in context’. In this approach, the starting point is not law but problems in society which are likely to be generalised or generalisable. Here, law itself becomes problematic both in the sense that it may be a contributor to or the cause of the social problem, and in the sense that whilst law may provide a solu- tion or part of a solution, other non-law solutions, including political and social re-arrangement, are not precluded and may indeed be preferred. The law in context approach has given an extra dimension to legal studies that has been taken up in every higher education institution.

Apart from these broad traditions, however, legal scholarship has also under- gone significant transformations and is facing significant challenges. One is the increasingly global character of legal life. This is seen in the ready access that can now be secured to materials describing and analysing legal systems across the world (previously inaccessible to most researchers) and requiring, at the least, that research and scholarship pay attention to alternative perspectives and consider their relevance to the local situation. Additionally, it is now inescapable that trans- jurisdictional instruments, such as Conventions relating to human rights, increas- ingly penetrate domestic legal systems and stimulate those responsible for operating or interrogating national systems to have regard to wider considerations than was possible when the world was considerably larger and less easily navigated.

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