The nature of law as an interpretive practice and its associated modes of inquiry

Legal Studies ◽  
2009 ◽  
Vol 29 (4) ◽  
pp. 576-591
Author(s):  
Nathan Gibbs
Keyword(s):  
Social Sciences ◽  
Instrumental Rationality ◽  
Legal Philosophy ◽  
Critical Survey ◽  
Legal Practice ◽  
Legal Research

The paper provides a critical survey of certain methodological debates in the field of legal philosophy in order to assess their implications for legal research in general. Underpinning this survey is a concern to establish the independence and integrity of both legal practice and legal research in the light of the risks posed by preponderant forms of instrumental rationality. Thus, Brian Leiter's recent call for a ‘naturalised’ jurisprudence is criticised for the instrumentalist basis upon which he claims to privilege forms of legal research apparently ‘continuous with’ the natural and empirical social sciences. As against Leiter, it is argued that there are in fact a range of distinct but interrelated modes of legal research. In this respect, the work of HLA Hart is interpreted as an example of a distinctively theoretical mode of inquiry into law. In addition, an account of the nature of a distinctively practical mode of legal inquiry is developed from a critique of Ronald Dworkin's excessively ‘theoretical’ reading of the interpretive character of legal practice. A constitutive practical feature of both modes of inquiry is their capacity to take up a certain distance from any exclusive concern with instrumental or pragmatic action.

Training the Trainees: Developing Effective Programmes and Partnerships in Legal Practice

2005 ◽  
Vol 5 (1) ◽  
pp. 34-41 ◽  
Keyword(s):  
Research Training ◽  
Legal Practice ◽  
Training Module ◽  
Legal Research ◽  
Effective Training

Alison Johnson reviews Eversheds' approach to delivering legal research training and the development of an effective training module which was first delivered in 2002 and has recently had its first cohort moving into qualification and the workplace as fully trained lawyers.

Legal Information and the Social Media: Some Current Issues

Libri ◽  
2018 ◽  
Vol 68 (4) ◽  
pp. 345-359
Author(s):  
Vicki Lawal ◽  
Peter G Underwood ◽  
Christine Stilwell
Keyword(s):  
Social Media ◽  
Legal Education ◽  
Preliminary Evidence ◽  
Survey Method ◽  
Law Firms ◽  
Legal Practice ◽  
Legal Research ◽  
Legal Information ◽  
The Social ◽  
Study Population

Abstract This article examines the effect of the adoption of social media in legal practice in Nigeria. It discusses some of the major challenges that have recently been experienced in the use of legal information in Nigeria within the context of the social media revolution, particularly with respect to ethics. A survey method was employed and data was collected through self-administered questionnaires to the study population comprising practicing lawyers located in various law firms in Nigeria. Outcomes from the study provide preliminary evidence on the nature of the application of social media in legal practice and the prospects for its inclusion as an important aspect of legal research in the legal education system in Nigeria.

scholarly journals MAPPING LEGAL RESEARCH

2012 ◽  
Vol 71 (3) ◽  
pp. 651-676 ◽  
Author(s):  
Mathias M. Siems ◽  
Daithí Mac Síthigh
Keyword(s):  
Social Sciences ◽  
Social Science ◽  
Conceptual Framework ◽  
General Result ◽  
Law Schools ◽  
Legal Research ◽  
The Us ◽  
Micro Level ◽  
The Uk ◽  
The Relationship

This article aims to map the position of academic legal research, using a distinction between “law as a practical discipline”, “law as humanities” and “law as social sciences” as a conceptual framework. Having explained this framework, we address both the “macro” and “micro” level of legal research in the UK. For this purpose, we have collected information on the position of all law schools within the structure of their respective universities. We also introduce “ternary plots” as a new way of explaining individual research preferences. Our general result is that all three categories play a role within the context of UK legal academia, though the relationship between the “macro” and the “micro” level is not always straight-forward. We also provide comparisons with the US and Germany and show that in all three countries law as an academic tradition has been constantly evolving, raising questions such as whether the UK could or should move further to a social science model already dominant in the US.

Rationality and social norms

1991 ◽  
Vol 32 (1) ◽  
pp. 109-129 ◽  
Author(s):  
Jon Elster
Keyword(s):  
Social Sciences ◽  
Social Norms ◽  
Adam Smith ◽  
Instrumental Rationality ◽  
Emile Durkheim ◽  
Inertial Forces ◽  
Social Forces ◽  
Homo Economicus ◽  
The Social

One of the most persisting cleavages in the social sciences is the opposition between two lines of thought conveniently associated with Adam Smith and Émile Durkheim, between homo economicus and homo sociologicus. Of these, the former is supposed to be guided by instrumental rationality, while the behavior of the latter is dictated by social norms. The former is ‘pulled’ by the prospect of future rewards, whereas the latter is ‘pushed’ from behind by quasi-inertial forces (Gambetta 1987). The former adapts to changing circumstances, always on the lookout for improvements. The latter is insensitive to circumstances, adhering to the prescribed behavior even if new and apparently better options become available. The former is easily caricatured as a self-contained, asocial atom, and the latter as the mindless plaything of social forces. In this paper I characterize this contrast more fully, and discuss attempts to reduce norm-oriented action to some type of optimizing behavior.

scholarly journals Make It New! The Redeeming Modernism of Law and the Collapsing of Its Polarities

Pólemos ◽  
2019 ◽  
Vol 13 (1) ◽  
pp. 149-165
Author(s):  
Angela Condello ◽  
Luke Mason
Keyword(s):  
Legal Philosophy ◽  
Legal Practice ◽  
The World ◽  
Normative Practice ◽  
The Law

Abstract This article argues that law is an inherently modernist normative practice. Constructing a vision of Modernism which is at once an epistemology and an attitudinal disposition to doubt and make anew our assumptions about the world, the authors demonstrate that legal practice encounters the world through individual cases. Through these examples, the law is capable of both interacting with and comprehending that world, while also being forced to question the law’s own precepts and their application. In this manner, the law’s generalisations and abstractions become concrete, and can indeed be upended, through fleeting, impressionistic and highly case-specific examples. This exemplarity within law explains how law is able to navigate its apparently contradictory aspirations and natures which have bedevilled legal philosophy for millennia. In reality, law exists within a series of polarities, rather than contradictions, which are navigated through the law’s encounters with examples from the extra-legal world. The authors conclude that this aspect of the law’s nature also has practical consequences, requiring the law to maintain the fora in which new and novel cases are heard, and through which law’s modernist spirit can thrive.

scholarly journals Global Animal Law: What It Is and Why We Need It

2016 ◽  
Vol 5 (1) ◽  
pp. 9-23 ◽  
Author(s):  
Anne Peters
Keyword(s):  
Social Sciences ◽  
Food Production ◽  
Research Programme ◽  
Legal Research ◽  
Global Regulation ◽  
Animal Law ◽  
The Social ◽  
Production And Distribution ◽  
Global Concern ◽  
Human Animal

AbstractThe symposium collection in this issue ofTEL, consisting of four articles including this framing article, seeks to conceptualize and flesh out a new branch of law and legal research: global animal law. The starting hypothesis is that contemporary animal law must be global or transnational (that is, both transboundary and multilevel) in order to be effective. In times of globalization, all aspects of (commodified) human−animal interactions (from food production and distribution, working animals and uses in research, to breeding and keeping of pets) possess a transboundary dimension. Animal welfare has become a global concern, which requires global regulation. This foreword introduces the three symposium articles, sketches out the research programme of global animal law and links its emergence to the ongoing ‘animal turn’ in the social sciences, including political philosophy.

scholarly journals Implementasi Green Constitution di Indonesia: Jaminan Hak Konstitusional Pembangunan Lingkungan Hidup Berkelanjutan

2018 ◽  
Vol 15 (2) ◽  
pp. 306
Author(s):  
I Gede Yusa ◽  
Bagus Hermanto
Keyword(s):  
Legal Practice ◽  
Legal Research ◽  
Human Right ◽  
Collective Rights ◽  
The Third ◽  
The World ◽  
General Part ◽  
Environmental Development ◽  
The Republic ◽  
Conceptual Study

Konsep Green Constitution yang telah diadopsi dalam beberapa konstitusi di dunia seperti Konstitusi Ekuador 2008 dan Konstitusi Perancis 2005, selaras dengan UUD NRI Tahun 1945 pasca amandemen yang memuat konsep Green Constitution sebagaimana dirumuskan pada Pasal 28H Ayat (1) UUD NRI Tahun 1945 yang mencerminkan generasi hak asasi manusia ketiga yakni hak kolektif dan hak pembangunan, berupa hak atas lingkungan hidup, serta Pasal 33 ayat (4) UUD NRI Tahun 1945 yang mencerminkan pembangunan lingkungan hidup yang berkelanjutan di Indonesia secara konstitusional. Tujuan penelitian ini ialah untuk menganalisis konsep Green Constitution di dalam Konstitusi Indonesia (UUD NRI Tahun 1945). Di sisi lain, juga secara intensif mengkritisi implementasi dari konsep Green Constitution yang berkaitan dengan pembangunan lingkungan hidup yang berkelanjutan. Tulisan ini berfokus pada dua permasalahan hukum yakni : bagaimanakah konsep Green Constitution dalam konteks UUD NRI Tahun 1945 dan pengaturannya di Indonesia serta bagaimanakah implementasi konsep Green Constitution dalam UUD NRI Tahun 1945 dalam konteks menjamin hak asasi manusia atas lingkungan hidup berkelanjutan. Adapun tulisan ini dibuat dengan menggunakan metode penulisan socio-legal dengan pendekatan studi konseptual dan pendekatan perundang-undangan. Melalui tulisan ini diharapkan dapat menegaskan bahwa konsep Green Constitution di Indonesia dimaknai sebagai konstitutionalisasi norma hukum lingkungan sebagaimana diatur dan terimplementasi dalam ketentuan Pasal 28H ayat (1) dan Pasal 33 ayat (4) UUD NRI Tahun 1945 serta konsiderans menimbang huruf a, b, f, Pasal 1 angka (2), Pasal 44, Penjelasan Bagian I. Umum angka (1) dan (5) Undang-Undang Nomor 32 Tahun 2009. Namun demikian, Green Constitution belum tercermin secara holistik, terbatas pada indikator masyarakat, namun belum didukung indikator hukum dan indikator pelaksana praktik hukum.Green Constitution concept which has been adopted by several constitution in the world such as The Constitution of Ecuador 2008 and The Constitution of France 2005, inline with 1945 Indonesian Constitution after Amendment that contains Green Constitution concept in the Article 28H paragraph (1) 1945 Indonesian Constitution which shows the third human rights generation such as collective rights and development rights especially the rights of environmental, and in Article 33 paragraph (4) 1945 Indonesian Constitution that contains sustainable environmental development in Indonesia constitutionally. The main purpose of this journal is to analyze the concept of Green Constitution in the 1945 Indonesian Constitution. Besides, it also intends to criticize the implementation of the Green Constitution concept that relates to sustainable environmental development. This paper focuses on two law problems: how the concept of green constitution in 1945 Indonesian Constitution with other regulations is and how the implementation of green constitution concept in the 1945 Indonesian Constitution in the context guarantee human right for sustainable environmental development is. This paper is set as a socio-legal Research with conceptual study and statutory approach. This paper is expected to affirm that the Green Constitution in Indonesia is valued as environmental norm constitution as arranged and implemented in Article 28H paragraph (1) and Article 33 paragraph (4) 1945 Indonesian Constitution and Considering part a, b, f, Article 1 Sub-article (2), Article 44, Elucidation I. General part (1) and (5) The Law of the Republic of Indonesia Number 32 Year 2009 about Protection and Management of Environment. However, the Green Constitution has not been reflected holistically. It is still limited on society indicators and has not been supported by legal indicators and indicators of legal practice.

scholarly journals Protection of the credit relations in Ukrainian criminal law

2021 ◽  
Vol 18 (1) ◽  
Author(s):  
Viktoria Babanina ◽  
Vitalii Kuznetsov ◽  
Nelia Lisova ◽  
Inna Vartyletska
Keyword(s):  
Social Sciences ◽  
Higher Education ◽  
Criminal Law ◽  
Gender Discrimination ◽  
Legal Protection ◽  
Legal Research ◽  
The Social ◽  
Characteristic Features ◽  
And Gender ◽  
High Social Status

The article examines the features of the protection of credit relations by the criminal law of Ukraine. The scope of the article is to study peculiarities of credit and financial relations in Ukraine, to reveal types of crimes in the field of credit relations and specifics of their subjects, to analyze qualifying features of crimes in the field of credit activity. To achieve the purpose of the article, formal-logical and dogmatic-legal research methods were used. Using the formal-logical and dogmatic methods, credit relations as an object of legal protection in criminal law were analyzed. The characteristic features of the personality of criminals who commit crimes in the field of credit relations have been studied. Their specific differences from other types of criminals are revealed, which are manifested in the fact that people who commit crimes in the field of credit relations, as a rule, have a high social status, higher education and are financially secure. Thanks to the research conducted in the article some important features of crimes in the field of credit activity were revealed, such as the fact, that among those who commit crimes in the field of lending, there is a high proportion of women. This fact has an important meaning for the social sciences, since it underlines inequality and gender discrimination.

scholarly journals Malpractice Advocate Profession in Indonesia

2020 ◽  
Vol 7 (8) ◽  
pp. 477
Author(s):  
Yayan Riyanto ◽  
Made Warka ◽  
Hufron Hufron
Keyword(s):  
Law Enforcement ◽  
Code Of Conduct ◽  
Law Enforcement Officers ◽  
Professional Standards ◽  
Legal Philosophy ◽  
Ethical Responsibility ◽  
Legal Services ◽  
Sociological Perspective ◽  
Legal Research ◽  
Applicable Law

Juridically, there is no clear and firm regulation related to the understanding and qualifications of malpractice advocates in Indonesia (there is a legal vacuum), but theoretically there have been many concepts and doctrines relating to legal malpractice, especially advocacy malpractice. In a sociological perspective, there have been many cases of advocacy malpractice that have emerged in the implementation of advocate practices in Indonesia. Meanwhile, in the perspective of legal philosophy, advocates as a noble legal profession (officium nobile) have no fair and certain formula for handling and settlement, both for clients who receive bad service from advocates and for advocates themselves as law enforcement officers. Based on the juridical, sociological, theoretical and philosophical reasons above, it is considered important to discuss the qualifications of an act including the malpractice of the Advocate profession and the forms of accountability of the advocate profession for advocacy malpractice cases. Therefore, this research uses normative legal research. Based on the results of the discussion, this study has the conclusion that the qualifications or parameters of the malpractice act of an advocate, if it meets the following requirements: (1) The existence of legal services provided by an advocate (rights and obligations); (2) Legal services are provided in: (a) below the applicable professional standards; (b) awarded in violation of the "fiduciary" obligation of the advocate; (c) defaults on contracts for providing legal services, or; (d) provided in a manner contrary to applicable law and code of conduct; (3) The advocate's actions take the form of acts against the law (intentional or negligence); (4) There are losses to the client; and (5) The loss is caused by the act of providing legal services by the advocate. There are three forms of advocacy accountability, namely ethical responsibility, juridical responsibility and disciplinary responsibility.

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