Slater, M, and Mason, J, “Writing law dissertations :an introduction and guide to the conduct of legal research”, 2007, Pearson Education Limited
Legal researchers have to take into account ‘the intellectual tension’ and ‘discernible friction’ between ‘black-letter academic lawyers using traditional modes of legal analysis’, and ‘those who would classify themselves as interdisciplinary scholars using ideas and techniques borrowed from other disciplines’1.
The black-letter approach is a particular way of interpreting what is deemed to count as legal research, including which materials are considered relevant. In other words, the black-letter methodology is not simply a perspective upon, or even a style of articulating, the substantial nature of a dissertation topic: instead, it is an interpretative scheme whose overall framework of categories, assumptions and concerns operate to both set up and demarcate the very meaning, scope and purpose of your dissertation topic and project.
If students adopt an alternative research methodology, such as that of sociolegal studies, then their dissertations would be operating with very different definitions of the appropriate range and scope of relevant source materials, as well as with different expectations as to the type of questions that are appropriate for legal researchers to ask.
A central goal of black-letter analysis is to reveal the presence of a series of rules based upon a smaller number of general legal principles.
Black-letter analysis involves students cross-referencing these specific rules to more general underlying principles as if together they formed a single, mutually reinforcing and rational system of regulation.
Contrary to a social science approach, the black-letter methodology requires students to rigorously exclude supposedly ‘external’ factors, such as policy, ideology and moral issues.
Classic forms of black-letter analysis deploy a distinctly deductive form of legal reasoning from legal principles. Hence, it is supposed to be possible for students to deduce by thought alone the necessity for specific rules as if these represented logical implications of a general principle.
Students who adopt the black-letter approach are not prevented from making criticisms of legal doctrine, although such permissible criticisms are limited in nature and scope to the exposure of ambiguities and gaps within existing law (defined narrowly as legal doctrine). However, students are not expected to engage in fundamental criticisms of the nature and operation of basic social institutions.
If you decide to adopt a black-letter methodology, then your research will be participating in a framework of interpretation. This framework will determine in advance what is to count as the substantial content and basic materials of your dissertation topic. Hence, the black-letter approach to legal research is more than a particular way of analysing the legal materials that you need to gather and analyse to complete your dissertation. It is also a framework of interpretation for both determining and setting up what falls within the scope of ‘relevant’ source material. This methodology provides a way of asking a certain range of questions and subjecting legal material to an ‘appropriate’ type of analysis.
Students and academics who adopt a black-letter approach to legal research rarely offer an express definition or engage in discussions that openly debate its possible advantages and disadvantages in an explicit or systematic way. Consequently, it is mainly the critics of this approach, rather than those who deploy it as their preferred approach, who have discussed its nature2.
“Adopting a frequently implicit, sometimes crude, objectivist epistemology … black-letter law often pays scant regard to either grand theory or practice, though in its choice of tools it remains closer to the analytical framework of practice than to the more reflective methodologies of the social and human sciences”3.
We suggest that the typical black-letter approach is best defined, albeit in a provisional way, as a research methodology that concentrates on seeking to provide a detailed and highly technical commentary upon, and systematic exposition of, the content of legal doctrine. This doctrine is interpreted as if it is a separate, independent and coherent ‘system of rules’. The priority is to gather, organise and describe legal rules, and offer commentary upon the emergence and significance of the authoritative legal sources that contain these rules, especially cases.
“What is black-letter law? It is simply the rules applicable to a particular area of the law, stated (often in outline form), without application to the particular facts and circumstances of a hypothetical or real legal problem, plus the pattern of questions necessary to apply those rules in a logical manner4.
Law students adopting the black-letter approach for their dissertations will seek to study the primary sources contained in the law library in order to answer the question: what is the meaning and scope of the relevant legal provisions? This approach to research aims to offer an authoritative exposition, fully supported by relevant citations, that describes how the specific rights and obligations of substantive legal doctrine have been assigned through judicial interpretations and reinterpretations of the meaning, scope and
requirements of ‘given’ legal categories, general principles and specific rules. Black-letter analysis will describe, often in intricate technical detail, the technical meaning of the relevant rules and principles.
Summary of main points that have been argued for and against the adoption of the black-letter approach to the conduct of research.
The critics of black-letter methodologies’ main objections.
Definition of sociolegal studies
Students looking to examine methodological aspects of sociolegal studies can draw upon an existing literature containing many explicit discussions of the nature, strengths and limitations of different available methodologies5.
Many published findings of empirical types of sociolegal research include discussion of, and attempted justification for, strategy used with respect to, for e.g., research samples or interview technique6.
Such methodological awareness and self-criticism contrasts markedly with legal research carried out using black-letter methodologies, where, as already noted, discussion remains generally focused on technical ‘legal methods’.
It is arguable that more sophisticated forms of sociolegal research include high level of methodological awareness and appreciation of need to justify, with convincing reasons, why researchers have chosen their particular methodological strategies.
Many writers within sociolegal studies have recognised that attempts to provide a single and fixed definition of the essence of sociolegal studies are frustrated by existence of many different and incompatible interpretations of the nature and scope of this approach to conduct of research7.
Cotterell argues that current sociolegal studies contain a ‘rich, almost anarchic heterogeneity and … consistent openness to many different aims, outlooks, and disciplinary backgrounds8.
Phil Thomas has summed up a key belief that underpins the commitment to sociolegal studies as a fully-fledged law in context approach when he claims that: “Empirically, law is a component part of the wider socio and political structure, is inextricably related to it in an infinite variety of ways, and can therefore only be properly understood if studied in that context”9.
The Socio-Legal Studies Association (SLSA) states it “dedicated to improving the quality of and facilities for sociolegal research”10.
They note that there are at least three recognisable strands to sociolegal work, each of which are broadly interdisciplinary in nature. These strands include higher-level social theories of law
disconnected from empirical studies; theories developed in the middle-range that are ‘grounded’ in the findings of empirical research (and which, in turn, aim to prompt further empirical studies to test the validity of their theoretical claims)11; and, thirdly, policy-driven projects that are entirely empirical and have little explicit relationship with prior to current theoretical reflections.
The absence of a clear, once-and-for-all definition and fixed boundaries for sociolegal studies has not, however, noticeably impeded the establishment and growth of work within this tradition over past decades.
It remains instructive to draw upon the know-how and working knowledge of contributors to sociolegal studies.
Students that adopt a sociolegal methodology may, for example, as the following questions: what difference does Parliament enacting relevant legislation actually make? What is the relationship between state-sanctioned rules and other less formal, operating norms and standards? How do those individuals and groups whose actions are being regulated react to law enforcement?12.
For a dissertation to focus only on the promulgation, semantics and design of legal rules is to provide an incomplete, and therefore one-sided and potentially misleading, account of any topic. Such an approach ignores vital questions regarding how, and to what extent and in what circumstances, legal rules are implemented in practice, and the various ways in which individuals, groups and institutions use them as a means to achieve specific ends13.
If you decide to adopt the law-in-action focus of sociolegal studies, then your dissertation may produce empirical results that question key tenets of the black-letter tradition’s emphasis upon formal rules as vital devices for minimising unbridled executive and administrative discretion. This is because the creation of rules can, in some contexts, actually widen the real scope for such discretion.
Furthermore, law-in-action studies can investigate issues that, although vital to any informed assessment of a specific legal measure, are simply beyond the abilities of doctrinal analysis.
Dissertations could seek to explain the reasons why certain types of legal regulation can be predicted to fail to consistently achieve their stated objectives in specific contexts, including pan-European forms of legal regulation through the implementation of directives. This is respect, sociolegal studies are thus ‘driven by a desire to investigate the workings of the law, and the behaviour of legal actors’.
For Cotterrell, sociolegal studies contribute ‘systematic behaviour studies’. However, he immediately widens the focus of sociolegal research on legal behaviour by regarding the many localised reinterpretations of the multiple meanings and implications of such behaviour by non-lawyers as falling within its scope: ‘what law as institutionalised doctrine means in the varied local contexts of social life is where its ultimate value and significance must be judged’14.
Sociolegal studies can include non-lawyers’ interpretation of their experiences of law in action.
This generalisation of sociolegal studies glosses over other non-empirical aspects of sociolegal studies, particularly the continuing publication of studies of the relationship between law, ideology and the state, which stem from sociological theory.
There must remain a ‘socio’, as well as a ‘legal’, dimension to sociolegal studies, and to contrast this with theoretical work on law’s various functions within society and society’s multiple roles within the legal sphere.
There are some defining tendencies that distinguish sociolegal approaches to the conduct of dissertation research from those of the black-letter tradition. These tendencies include a movement away from studying ‘law in books’, that is, a close doctrinal analysis of cases and statutes, in favour of studies of ‘law in action’. In other words, the emphasis upon studying ‘law in action’ involves a movement towards investigating the impact of legal regulation upon different groups in society.
Comparative approaches to conduct of dissertation research have formed an increasingly popular option for many dissertation students, particularly as access to the cases, statutues and academic articles of other legal systems and culture have become available online. Equally, a number of themes within European law lend themselves to a
variety of different types of comparison, including comparative enforcement. Comparative research asks how different legal systems and legal cultures have addressed problems that our law faces but in a different way, and with what degree of perceived success or failure.
Such research can include a policy aspect. This is particularly the case where law reform organisations attempt to learn lessons potentially available from the relative success and failure of reforms within other similar legal systems.
Law can be analysed as the expression of a continual social, political and economic debate concerning the appropriate balance between the frequently conflicting interests of, for example, employers, employees and the public.
At least one other jurisdiction has probably been grappling with the same issues in law and policy. Other legal systems may have proposed, or even implemented, reforms as a consequence of the debate which forms part of the dissertation topic.
Kahn-Freund’s seminal writing on the use of comparative approaches within labour law is instructive. He argued that an effective comparison had to take into account not merely the existing law in various jurisdictions under consideration but also, more importantly, the socio-political factors, which form the background against which that law has developed. Hence, a meaningful comparative analysis must consider the ‘power structure’, which has influenced and formed the law.
Comparative analysis can be a particularly useful methodology for considering the desirability of introducing forms of legal regulation that have been successfully introduced in other jurisdictions as a response to analogous issues.
- Vick, D, ‘Indisciplinarity and the Discipline of Law’, 31 JLS (2004) 163 at pp 163-4
- Aldridge, P, ‘What is Wrong With the Traditional Criminal Law Course’, (1990) 10 LS 38
- Webb, J, ‘Extending the Theory-Practice Spiral: Action Research as a Mechanism for Crossing the Academic/Professional Divide’  2 Web JCLI: http://webjcii.ncl.ac.uk/articles2/webb2.html; Macfarlane, J, ‘Look Before You Leap: Knowledge and Learning in Legal Skills Education’, 1992, 19 Journal of Law & Society 293, pp 293-301
- Hofheinz, W, ‘Legal Analysis’: http://www.hofheinzlaw.com/LANLSYS.php (accessed November 2013)
- e.g. Mavis Maclean and Hazel Genn, “Methodological Issues in Social Surveys”, Atlantic Highlands, NJ: Humanities Press, 1979; Sarat, A, et al, “Crossing Boundaries: Traditions and Transformations in Law and Society Research”, 1998, Northwestern University Press, Part One
- Gerhard, U, ‘Women’s Experiences of Injustice: Some Methodological Problems and Empirical Findings of Legal Research, Social & Legal Studies, 1993, 2(3), 303-21
- ‘Review of Sociolegal Studies’, Swindon, ESRC, 1994, ch 1
- Cotterrell, R, ‘Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies’, 2002, 29 JLS, 632-44, p 632
- Thomas, P, ‘Curriculum Development in Legal Studies’, 1986, 20, Law Teacher, 110 at 112
- Hutter and Lloyd-Bostock, 1997, op cit, 23
- Hawkins, 1997, op cit, prologue, 5
- Ibid, 5
- Cotterrell, 1995, op cit, 296