大象传媒

Although聽the topic of your聽project seems to be聽well-chosen and engaging, I must admit that I became somewhat concerned聽when I heard that you plan on diverging from a traditional doctrinal analysis. After all, at the end of the day, you need to stay within the realm of legal science.

This comment was recently made to me after a presentation I held of my PhD project. As someone doing a聽PhD聽thesis on the issue of how sexual minorities are constructed聽within refugee law, my colleagues at the Law Faculty have聽often reassured聽me that my research is聽both interesting and important. But there is always a 鈥渂ut鈥澛犫�� and this 鈥渂ut鈥� tends to turn up when it becomes clear that I am not planning on using what in Norwegian is usually simply referred to as聽a聽鈥渞egular鈥� or 鈥渘ormal鈥� legal method.聽聽

Underpinning the聽concern about聽going outside the boundaries of proper legal聽science聽is a set of questions聽regarding聽the nature of聽legal聽scholarship. Namely, 鈥渨hat聽constitute a legal analysis?鈥�, 鈥渨hat is the purpose of legal science?鈥� and, perhaps equally important, 鈥渨hat constitutes聽good聽or聽useful聽legal research?鈥� In this blog post,聽I will attempt to consider some of these issues.聽聽

鈥楾raditional鈥� doctrinal legal analysis聽

By far聽the聽most common way of researching law, both at a national and an international level, is doctrinal聽(also known in civil law jurisdictions as 鈥榙ogmatic鈥�)聽legal research. At the same time, the precise content of doctrinal method is rarely聽explicitly聽discussed by legal scholars, and while it has sometimes been described as being 鈥渟o implicit and so tacit that many working within the legal paradigm considers it unnecessary to聽verbalise聽the process鈥�, doctrinal research is聽nevertheless聽far for a unified concept聽(). Within the field of international law alone, there are a multitude of opinions on what a doctrinal method consists of. As such, the precise content of doctrinal legal method is to a certain extent flexible and open to different understandings and approaches.聽聽

Keeping this in mind, it can generally be said that a central focus of doctrinal research is to systematize, interpret and define the content of current positive law (de聽lege聽lata) and/or to offer suggestions on how the content of positive law should be changed or improved (de聽lege聽ferenda).聽An aspiration of legal doctrinal research is thus to create coherence and order among rules and principles within the legal system聽(). In line with this, doctrinal research generally adopts what can be called an聽internal perspective聽on law 鈥� meaning that its own sources are used聽to establish the content of current positive law, as well as for criticism or suggestions聽de聽lege聽ferenda.聽聽聽

Critical聽approaches to聽law聽聽

Over time, the position of doctrinal legal analysis has been challenged by a number of different approaches and methods to researching law, including Critical Legal 大象传媒 (), Third World聽Approaches to Law (),听听补苍诲听聽on law. A commonality of these approaches is that they in different ways focus on revealing,聽analysing聽and challenging how seemingly neutral legal provisions or regulations serve to reinforce patriarchal, colonial or otherwise unjust power structures in society.聽

Consequently,聽according to these critical approaches聽the boundaries of聽legal scholarship are understood to be wider than聽according to the 鈥榯raditional鈥� doctrinal position聽(). The聽role of legal scholars is seen as being different from that of legal practitioners 鈥� and while practitioners use the legal system within its own boundaries, legal scholars are not considered to be bound by these limits.聽聽

A central difference between聽鈥榯raditional鈥櫬燿octrinal legal analysis and critical approaches to law聽relates therefore to the聽purpose聽of legal science. This in turn affects the聽methodological choices of聽the research. While doctrinal analysis usually aims at creating coherence and consistency聽in order to聽improve specific legal regulations or different parts of the legal system, critical scholars are to a greater extent divided on what the purpose of legal scholarship should be. Some scholars aim聽to create new forms of coherence, for example by systematizing law according to women鈥檚 needs and perspectives, as is done in some approaches to women鈥檚 law聽(). Others might be skeptical of the aim of achieving coherence and rather work towards other improvements of the legal system.聽All of聽these approaches, to some extent, attempt to provide an answer to how the content of positive law can be improved and in this sense the purpose remains聽de聽lege聽ferenda聽argumentation.聽

Law鈥檚 role in constructing the categories and concepts it regulates聽

Other critical scholars reject this goal altogether, such as post-structuralist or decolonial approaches to law, instead taking the position that legal scholarship should focus on how the law contributes聽to聽constructing the categories聽and concepts聽that are used in legal regulations. In other words, law is understood as being聽productive聽rather than merely聽descriptive, in the sense that legal reasoning takes part in creating what it what it appears to merely describe 鈥� for example,聽the concept of the sexual minority refugee..聽聽

A basic premise for聽聽is that our understanding of the world is shaped through language.聽聽As such, language helps us create representations of聽the world that are never mere reflections of a pre-existing and objective reality, but rather contributes to the construction of reality聽(). This does not mean that reality does not exist, but that the way we understand the world is only accessible聽to us聽through socially produced categories.聽Thus, legal聽reasoning聽is involved in constructing seemingly factual concepts.聽Consequently, concepts such as sex or gender 鈥� or聽the聽sexual minority refugee 鈥� are not聽simply聽categories that exist independently of law but concepts that are constructed聽within legal聽reasoning.聽聽

An implication of this type of critical analysis聽is聽that it may be necessary to postpone, or even put aside, the question of how specific legal regulations should聽be changed. Instead, the focus is on understanding and deconstructing the taken-for-granted notions that law聽itself聽is based on.聽聽聽

While such a purpose may at first glance聽to be聽seem less useful than research that offers concrete suggestions on聽how positive law should be聽improved, it allows us to ask different questions than what a 鈥渢raditional鈥� doctrinal legal analysis does. Such questions may include:聽what forms of identities are recognised as being worthy of protection within a legal regime,聽and what identities are not聽鈥� and more importantly, why?聽This type of research may allow for聽a聽deeper understanding of how law functions聽which聽in turn聽may be necessary聽in order to聽make systemic changes to the legal system in the long run.聽聽聽