Legal method: doctrinal and non-doctrinal analysis 41 !

“[D]octrinalists are not used to making their implicit methods explicit in order to show outsiders how they proceed in their research”

(van Gestel and Misselwitz, 2014, 5-6)

Doctrinal analysis

The legal research methods employed in this thesis were partly located within the ‘doctrinal’, positivist mode of legal inquiry; a method used by both professional and academic lawyers. As Unger (1977) notes, law is a ‘system’, this system works as a doctrine whereby, if properly interpreted, it supplies the answer to all questions of social behaviour. Providing a step- by-step guide of the processes behind a doctrinal ‘legal method’ is, however, problematic. As Chynoweth (2006) notes in one of the few texts on legal method: “[t]here is a dearth of theoretical literature on the nature of legal scholarship and a consequent lack of awareness of what legal scholars actually do.” I had previously spent two years studying law and a further two years training to become a lawyer at a law firm in the UK but during this time, I had no formal education in ‘legal method’. This led me to reflect on my ‘legal method’ for this thesis: what is it that lawyers

are doing when they interpret the law? As van Gestel and Misselwitz (2014, 5) note:

“The Justices of the Supreme Court cannot agree … on the straightforward matter of how one goes about deciding an important case because there is no legally required methodology but rather methodologies that can claim legitimacy in the legal system and from which a judge may pick and choose.”

Law therefore lacks an anchor – a set of established principles and a legal methodology that determines rules and results (Kairys, 1998).

In studying the English legal system, a law student develops an understanding of key areas of law (commercial, property, equity and trusts, contract) and also the procedures behind passing a law through the parliamentary system and bringing a claim to the English courts. These procedural aspects demonstrate a ‘methodology’ inherent throughout the legal system to ensure what Baxter and Eyles (1998) would describe, in a social science context, as ‘rigour.’24 _{In legal practice, rigour equates to} fairness and justice in the legal system and ensures all individuals are subject to the same procedures. Legal theorist, Hart (2007[1967]) describes the procedures of law as the secondary rules of a functioning legal system, which equate to the ‘rules about rules’.25

These standardised procedures incorporate ‘objectivity’ into the legal system. Nonetheless, the procedural aspects of law fail to explain the reading of the ‘law’ or, in other words, how a lawyer determines the content and scope of the law on a particular issue.

In reading the law, doctrinal analysts therefore ask the question: ‘what is the law?’ This responds to the objective nature of legal analysis and is established through finding answers from the ‘doctrinal system’ through reasoning (Hart, 2007[1967]). Therefore, lawyers “usually presume that the legal system contains one single right answer to each legal question” (Hesselink, 2009, 2), based on the notion that law on any subject is “pre- existing, predictable and available to anyone with a reasonable legal skill” (Kairys, 1998, 2). Although every lawyer is supposed to reach the same decision as each other as to ‘what the law is’ on a particular subject, the intricacies of this deductive process are always open to different interpretations, which requires a judiciary system with an elevated technical expertise (Goulder, 2013). As Kairys (ibid.) notes “the power

24 _{This has come to mean the satisfaction of the conventional criteria of validity, reliability and objectivity within}

qualitative research (Baxter and Eyles, 1998).

25 _{The primary rules, on the other hand, proscribe the “free use of violence, theft and deception to which human}

beings are tempted but which they must in general repress if they are to coexist in society with each other” (Hart, 2007[1967], 89).

and legitimacy of this higher source rests on its claim to grounding in a sophisticated process that works by logic and reason and is separate from and independent to politics” (as discussed in section 2.1).

Legal academics working in the field of European law have recently been pushing an agenda for emphasising the tenets of legal (doctrinal) method (van Gestel and Micklitz, 2014; Edwardsson and Wockelberg, 2013; Hesselink, 2009). They note how legal analysis in European law requires discussion within the academy, and in practice, to form a dialogue as to how lawyers trained in different national systems can analyse European legislation and cases. Van Gestel and Micklitz (2014) question whether it is possible for an English lawyer trained in common law system and a German lawyer trained in civil law system to take their established ‘methods’ and apply this to European law in an ‘objective’ and ‘just’ manner. Instead, a new method has to be adopted that all lawyers follow when interpreting European law.

Non-doctrinal approaches

Moving from ‘positivist’ notions of the law evident in doctrinal approaches seeking ‘legal truth’, socio-legal studies takes methodological and epistemological approaches from the social sciences to examine how the law works as a social entity (Chynoweth, 2008). A non-doctrinal approach therefore involves an ‘external inquiry’ in relation to the law as opposed to an ‘internal inquiry’ evident with doctrinal approaches (ibid.).

Methods in non-doctrinal approaches reflect methods used more generally in the social sciences: for example, ethnography (Griffiths, 2005), discourse analysis (Seneviratne, 2005), as well as quantitative approaches (Spamann, 2009). The social science research methods used for data collection in this thesis are explored further below.

Methodology in legal geography

In a rare and explicit contribution to method in legal geography, Braverman (2014, chapter 5) notes that “[l]egal geographers are woefully unreflective about their methodologies” and emphasises that, “engaging in mutual conversations about methodology can enhance interdisciplinary dialogue and may bridge over otherwise fraught waters that run between what are constructed as disciplinary divides”. Braverman highlights how discussions in regard to methodology in legal geography therefore have the potential

to join together the archipelagic thinking that Delaney describes as causing an ‘impasse’ in the interdisciplinary project (Delaney, 2010, see section 2.1). In venturing forward with establishing a programme for methodology in legal geography, Braverman (2014, chapter 5) highlights the benefits of “branching out to new disciplines and territories, including anthropology and sociology” noting that “[i]f legal scholars and scholars of legal geography have been under-attentive to questions of method, these questions have been at the core of anthropology, and of cultural anthropology in particular, for many decades”.

This section does not dispute Braverman’s call for exploring disciplines with a more attentive approach to methodology, but aims to expand on this by highlighting that the importance of overcoming the ‘impasse’ of legal geography (see section 2.1) necessarily involves forming a more integrated research methodology. This integrated research methodology relies on taking both a doctrinal approach to the law, often as an entry-point to the research, and then adding to this with ethnographic approaches (see also Valverde, 2012). As Fernandes and Varley (1998) note, most urban research takes legal phenomenon for granted. This thesis therefore takes the perspective that analyses of law in urban contexts add technical substance – meaning legal doctrine, rules and legal documents (Riles, 2005) - to ongoing debates in urban theory (c.f. Valverde, 2009, 2012). This technical substance adds a new analytical layer to researching the city and urban processes and therefore a new mode of explanation in understanding how cities work.