Advanced Legal Research and Writing (LLM & MA)

Critical Evaluation of Doctrine,

Institutional Design and Practice

Dr Emanuela Orlando
 Critical Evaluation: preliminary remarks
 Critical evaluation and analysis as a methodology
• Methodology: how you conceive and frame the research question
• often informed upon a theory
 Critical evaluation: a definition
• It does not mean negative
• It does not only refer to using ‘critical judgement’ or to develop a critical analysis of the law.
• Critical method is an approach that consists in going beyond the law  emancipatory
pursuit of knowledge.
• Main questions are: Why does the law say this? Would it be right for the
law to say this? What should the law say?

 Does not deny the value of the doctrinal approach, but it presents itself as a different
perspective from which to study the law
 Recalling the ‘outside-in’ – ‘inside out’ distinction

‘internal perspective’  Doctrinal = a methodology focussed on the law, looking at what does the law
say on a given topic, and building the main reasoning, arguments and message on the basis of the law
(law intended broadly, as including legal instruments, but also judicial decisions etc)
• Legal positivism
• It may also include formalism

‘Inside-out’ / normative perspective = still internal perspective but examining the law as it is in the light of general
principles that are regarded as inherent in the system, and which represent the values recognised in that particular
legal order.
• Legal order as a coherent system
• Looking for consistency in the law
• Normative approaches to law as opposed to formalistic readings of the law

Critical Legal Studies = attack on liberalist approach to law and society; view and highlight the contradictions in the
legal system
External perspectives = examining the law from an external vantage point (Marxism, feminism, law & economic)…or from another disciplinary framework
(sociology, history etc.)
External perspectives also includes empirical analysis of the law, studies of law in society – which we will examine next week.
 Two directions or approaches for the critical evaluation
methodology

• Inside out: Examining the law against Critical approaches include approaches which
internal standards (the values that the challenge the idea of the law as a coherent
law embodies, internal values, system.
inherent in the legal system), and then
Challenges to formalism, and to
asking the question of whether the law legal liberalism.
lives up to this standards.
• Relationship and potential overlap with
doctrinal approaches.
Click icon to add picture

• Outside in: examining the law against

external standards (values which the
law ought to embody or be judged by)
 Critical Legal Studies

Originated in the US around the 1980s

⎻ Critique of formalism but especially of liberalism (influenced by American realism, but going beyond
that)
⎻ reject the idea of law as value free and objective
⎻ Do not seek to create coherence but rather demonstrate law’s inherent incoherence
⎻ They -- as well as other scholars bringing in an external vantage point to legal analysis - also
reject the idea that the law exist and can be understood in a vacuum, but it is necessarily
influenced by other factors (so critical scholars, including those not specifically in the CLS
movement, they often brings in other perspectives into the analysis of the law)
⎻ Main figures: David Kennedy, Roberto Unger
⎻Influenced by post-modernism and de-constructivism philosophies (eg. J Derrida (philosopher); M
Focault)
 CLS critique of formalism

Legal reasoning creates coherence, does not find coherence

Influenced by de-constructivism, CLS scholars tend to argue that there may be
different ways of coherently define particular laws or areas of law
Show how the dominant description is linked to a particular power relations in
society
 Different nuances of ‘critical evaluation’

v Inside-out approaches
Include:
― approaches based on a coherent conception of the law  critique of the law and assessment of
how the law should be on the basis of internal standards but with the idea that the law can be still
coherently interpreted and applied.
― approaches that see in the legal system, in areas of the law the existence of competing
principles: challenge to the orthodoxy, formalistic view of the law. Law not conceived as
necessarily value-free and objective. This include typically the Critical Legal Studies movement
(the latter characterised particularly by a challenge to liberalism)
v Outside-in critique: incorporate external standards and theoretical perspectives into
the analysis of the Law
External perspectives (Outside in)

 Adopt a critical vantage point, or theoretical perspective, from

outside the law
 Examples might include:
 Marxism
 Feminism
 Utilitarianism
 Law and Economics
 ….