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Year 2013 x
Artikel

Access_open Alternative Methodologies: Learning Critique as a Skill

Journal Law and Method, 2013
Keywords governmentality, methodology, method, skill
Authors Bal Sokhi-Bulley
AbstractAuthor's information

    How can we teach critical legal education? The article tackles this key question by focusing on the role of methodology in legal education and research. I argue that critical legal education requires marketing methodology as a ‘skill’, thereby freeing it from what students and researchers in Law often view as the negative connotations of ‘theory’. This skill requires exploring ‘alternative methodologies’ – those critical perspectives that depart from legal positivism and which Law traditionally regards as ‘peripheral’. As an example, the article explores the Foucauldian concept of governmentality as a useful methodological tool. The article also discusses the difference between theory, methodology and method, and reviews current academic contributions on law and method(ology). Ultimately, it suggests a need for a ‘revolt of conduct’ in legal education. Perhaps then we might hope for students that are not docile and disengaged (despite being successful lawyers) but, rather, able to nurture an attitude that allows for ‘thinking’ (law) critically.


Bal Sokhi-Bulley
Bal Sokhi-Bulley is Lecturer in Law atQueen’s University in Belfast.
Artikel

Access_open The Role of Hierarchy, Example, and Language in Learning

A Confrontation between a Liberal and a ‘Critical’ Understanding of Legal Education

Journal Law and Method, 2013
Keywords skeptical legal education, academic learning, Critique, Knowledge, CLS, liberalism, power
Authors Bart van Klink
AbstractAuthor's information

    In The Voice of Liberal Learning, Michael Oakeshott characterizes learning as a strictly non-instrumental activity. In schools and universities, knowledge is acquired for its own sake. Obviously, this liberal understanding of education differs fundamentally from a ‘critical’ notion of education as advocated by Duncan Kennedy and other members of the CLS movement. From a ‘critical’ perspective, Oakeshott’s conception may be seen as yet another attempt – typical for liberalism and conservatism alike – to depoliticize the process of knowledge production and reproduction and to conceal (and thereby to strengthen and legitimize) its effects on the distribution of power, wealth, status and so forth in society. In this paper, the author will confront both views with each other, especially within the context of legal education. The general purpose is to develop a notion of skeptical legal education, which is to a large extent based on Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.
Artikel

Access_open A Plea for Rigorous Conceptual Analysis as a Central Method in Transnational Law Design

Offer and Acceptance as Juridical Acts in the Draft Common Frame of Reference as a Case in Point

Journal Law and Method, 2013
Keywords DCFR, Conceptual Analysis, Juridical Acts, Transnational Law Design
Authors Rudolf Rijgersberg and Hester van der Kaaij
AbstractAuthor's information

    Although shared legal problems are generally easily identified in transnational law design, it is considerably more difficult to design frameworks that transcend the peculiarities of local law univocally. The following exposition is a plea for giving more prominence to rigorous conceptual analysis in transnational law design in order to disambiguate the terms used in such frameworks. It does this by taking the formation of contracts in the model rules of the Draft Common Frame of Reference (DCFR) as a case in point. A conceptual analysis of the basic legal notion ‘juridical act’ in its model rules for contract law shows that the DCFR allows for two mutually conflicting interpretations of contract formation that are by no means fictional. A rigorous conceptual analysis of basic legal notions in the formative stages of transnational law design would have prevented a conflation of two legal traditions resulting in an ambiguous legal framework. As such it is an indispensable method for achieving a univocal interpretation of the legal end product.


Rudolf Rijgersberg
Rudolf Rijgersberg is assistant professor Methods and Foundations of Law at Maastricht University.

Hester van der Kaaij
Hester van der Kaaij is promovendus PhD candidate in Legal Theory at Maastricht University.
Artikel

Access_open Kuhn and Legal Research

A Reflexive Paradigmatic View on Legal Research

Journal Law and Method, 2013
Keywords legal paradigm, scientific revolution, social theory, reflexivity, responsibility, risk society, cosmopolitanism
Authors Ubaldus de Vries
AbstractAuthor's information

    This article seeks to describe a paradigmatic view on legal research, based on the thought processes underlining Kuhn’s The Structure of Scientific Revolutions, in particular as how revolutionary change is coming about through a reflexive attitude towards developments that do not fit in the prevailing assumptions in an existing paradigm or research methodology. It allows for a description of ‘normal legal research’ and the assumptions upon which normal legal research is based. It also allows for an explanation as to how these assumptions are no longer exclusively valid but carry with them limitations in the face of structural developments at the level of society. An important feature of the paradigmatic view, then, is that it is able to take issue with these developments by incorporating social theory in our understanding of law.


Ubaldus de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.
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