Prepare for your exams
Get points
Guidelines and tips

Sell on Docsity

Prepare for your exams

Study with the several resources on Docsity

Earn points to download

Earn points by helping other students or get them with a premium plan

Guidelines and tips

Sell on Docsity

Prepare for your exams

Study with the several resources on Docsity

Prepare for your exams with the study notes shared by other students like you on Docsity

Search Store documents

The best documents sold by students who completed their studies

Search through all study resources

Summarize your documents, ask them questions, convert them into quizzes and concept maps

Explore questions

Clear up your doubts by reading the answers to questions asked by your fellow students

Earn points to download

Earn points by helping other students or get them with a premium plan

Share documents

For each uploaded document

Answer questions

For each given answer (max 1 per day)

All the ways to get free points

Get points immediately

Choose a premium plan with all the points you need

Study Opportunities

Choose your next study program

Get in touch with the best universities in the world. Search through thousands of universities and official partners

Community

Ask the community

Ask the community for help and clear up your study doubts

University Rankings

Discover the best universities in your country according to Docsity users

Free resources

Our save-the-student-ebooks!

Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors

From our blog

Exams and Study

Jurisprudence II - Course Notes, Study notes of Law

O.P. Jindal Global University Law

Full course notes covering: Duncan Kennedy, "Legal Education and the Reproduction of Hierarchy" Margaret Davies, "Ethics and Methodology in Legal Theory" Lennard J. Davis, “Bending over Backwards: Disability, Narcissism, and the Law” Upendra Baxi, “Law and State Regulated Capitalism in India: Some Preliminary Reflections” Capitalist Development: Critical Essays Brenda Cossman, Dan Danielsen, Janet Halley, Tracy Higgins, “Gender, Sexuality and Power: Is Feminist Theory Enough? Ratna Kapur, “New Cosmologies: Mapping the Postcolonial Feminist Legal Project” Irene Watson, “Buried Alive” Anupama Rao, “Death of a Kotwal: The Violence of Recognition”

Typology: Study notes

2020/2021

Available from 06/14/2024

niharika_palep 🇮🇳

4 documents

1 / 110

This page cannot be seen from the preview

Don't miss anything!

bg1

1

JURISPRUDENCE II

WEEK 1: INTRODUCTION, OR WHAT ARE WE DOING IN LAW SCHOOL?

Duncan Kennedy, Legal Education and the Reproduction of Hierarchy

Law schools are politically charged environments despite appearing intellectually

unpretentious. The focus on basic skills overshadows broader theoretical and practical visions.

Students are ideologically trained to serve corporate hierarchies. Ideological training distorts

perceptions of legal competence and the role of lawyers.

The Influence of Ideology: Ideological teachings portray existing societal hierarchies as

natural and fair. Students internalize these teachings, shaping their behavior to fit societal

expectations. Ideology not only suppresses opposition but also encourages active participation

within established structures.

Components of Analysis: The article examines the first-year experience, curriculum ideology,

non-curricular practices, and hierarchical structures within law schools. It discusses the

implications for political action arising from understanding existing hierarchies. Suggestions

are offered for progressive students to navigate law school without becoming demobilized.

Examples and Proposals: An example of a utopian proposal for transforming a law school is

provided.

1. Motivations for Attending Law School

• Idealistic Aspirations:

o Many students are driven by a desire to use the law as a tool for social justice.

They are inspired by historical figures such as Louis Brandeis, who exemplified

using the law for public service and progressive causes.

o These students often believe that law can be used to support the oppressed and

enact societal change. They hope to leverage the legal system to address and

correct injustices.

o There are also students who perceive the law as inherently biased towards

established interests. Despite this, they aim to strategically subvert the system

from within to achieve progressive goals.

• Competitive Environment:

o The competitive nature of law school fosters a culture where students are

expected to be tough, hardworking, and intellectually sharp. This environment

can be both exhilarating and intimidating.

o Students experience ambivalence, balancing their idealistic motivations with a

strong desire to excel in this highly competitive setting. This duality is a

defining feature of their law school experience.

• Social Mobility:

o For many students, attending law school is seen as a pathway to upward social

mobility. This is particularly significant for those from non-professional

backgrounds who view a legal career as a means to improve their social status.

pf3

pf4

pf5

pf8

pf9

pfa

pfd

pfe

pff

pf12

pf13

pf14

pf15

pf16

pf17

pf18

pf19

pf1a

pf1b

pf1c

pf1d

pf1e

pf1f

pf20

pf21

pf22

pf23

pf24

pf25

pf26

pf27

pf28

pf29

pf2a

pf2b

pf2c

pf2d

pf2e

pf2f

pf30

pf31

pf32

pf33

pf34

pf35

pf36

pf37

pf38

pf39

pf3a

pf3b

pf3c

pf3d

pf3e

pf3f

pf40

pf41

pf42

pf43

pf44

pf45

pf46

pf47

pf48

pf49

pf4a

pf4b

pf4c

pf4d

pf4e

pf4f

pf50

pf51

pf52

pf53

pf54

pf55

pf56

pf57

pf58

pf59

pf5a

pf5b

pf5c

pf5d

pf5e

pf5f

pf60

pf61

pf62

pf63

pf64

Related documents

Jurisprudence I - Course Notes

Jurisprudence notes and study materials for LLB course KSLU

Jurisprudence in law llb 3 yrs course sem 4

lecture notes on jurisprudence

Complicity notes-jurisprudence.

jurisprudence semester 4 notes

jurisprudence study notes

Roman Sources Notes-lecture notes for Jurisprudence

Week 1 PQ-Jurisprudence

Notes on The subject of jurisprudence

(2)

Homicide Week 4 notes-jurisprudence.

Nursing Jurisprudence Examination Notes

Partial preview of the text

Download Jurisprudence II - Course Notes and more Study notes Law in PDF only on Docsity!

JURISPRUDENCE II

WEEK 1: INTRODUCTION, OR WHAT ARE WE DOING IN LAW SCHOOL?

Duncan Kennedy, Legal Education and the Reproduction of Hierarchy Law schools are politically charged environments despite appearing intellectually unpretentious. The focus on basic skills overshadows broader theoretical and practical visions. Students are ideologically trained to serve corporate hierarchies. Ideological training distorts perceptions of legal competence and the role of lawyers. The Influence of Ideology : Ideological teachings portray existing societal hierarchies as natural and fair. Students internalize these teachings, shaping their behavior to fit societal expectations. Ideology not only suppresses opposition but also encourages active participation within established structures. Components of Analysis : The article examines the first-year experience, curriculum ideology, non-curricular practices, and hierarchical structures within law schools. It discusses the implications for political action arising from understanding existing hierarchies. Suggestions are offered for progressive students to navigate law school without becoming demobilized. Examples and Proposals : An example of a utopian proposal for transforming a law school is provided.

1. Motivations for Attending Law School

Idealistic Aspirations : o Many students are driven by a desire to use the law as a tool for social justice. They are inspired by historical figures such as Louis Brandeis, who exemplified using the law for public service and progressive causes. o These students often believe that law can be used to support the oppressed and enact societal change. They hope to leverage the legal system to address and correct injustices. o There are also students who perceive the law as inherently biased towards established interests. Despite this, they aim to strategically subvert the system from within to achieve progressive goals.
Competitive Environment : o The competitive nature of law school fosters a culture where students are expected to be tough, hardworking, and intellectually sharp. This environment can be both exhilarating and intimidating. o Students experience ambivalence, balancing their idealistic motivations with a strong desire to excel in this highly competitive setting. This duality is a defining feature of their law school experience.
Social Mobility : o For many students, attending law school is seen as a pathway to upward social mobility. This is particularly significant for those from non-professional backgrounds who view a legal career as a means to improve their social status.

o Even students who do not achieve top-tier success in law school can experience significant social upliftment, as a law degree carries considerable social and professional prestige.

2. First-Year Classroom Experience

Classroom Dynamics : o The typical law school classroom is characterized by a clear hierarchy, with most teachers being white, male, and middle-class. This demographic composition reflects broader societal structures. o The teaching style in law school often feels authoritarian, resembling high school more than the collaborative environment of college. This can create a sense of unease among students. o Students frequently engage in pseudo-participation, where they struggle to grasp the teacher's expectations in a public, performative setting, leading to feelings of inadequacy and stress.
Engagement and Learning : o Despite the hierarchical nature of the classroom, students often find the process of learning the new "language" of law intellectually stimulating. Mastering legal jargon and concepts is both challenging and rewarding. o The intense comparison with peers contributes to the pressure but also adds an element of excitement. This competitive atmosphere can drive students to push their limits and strive for excellence. 3. Intellectual and emotional experiences
Differentiation of Teachers : o Some teachers adopt a more authoritarian approach and focus less on policy, which paradoxically makes them more popular among students who perceive this style as rigorous and demanding. o Conversely, "softer" teachers, who are more liberal and open to policy discussions, are often less favored. This preference reflects a deeper ambivalence about the role of law in society.
Left vs. Right Thinking : o Law schools provide limited space for committed liberal or left-wing thinking. The dominant intellectual struggle is between conservative pedagogy and moderate liberalism, with little room for radical perspectives. o This constrained intellectual environment can be frustrating for students who wish to explore more progressive or critical approaches to law and its societal impact.
Legal Content : o The curriculum emphasizes learning rules, case analysis, and balanced policy arguments. Students are trained to think like lawyers, focusing on technical proficiency and logical reasoning.

o The lack of coherence and depth in addressing policy issues reinforces the perception that reform programs are practically impotent and disconnected from the realities of legal practice.

Peripheral Subjects : o Subjects such as legal philosophy, history, and clinical education are considered peripheral to the core curriculum. These areas are viewed as less relevant to the "hard" skills of legal practice and are often marginalized. o This marginalization reflects a broader tendency to prioritize technical proficiency over critical engagement with the law's ethical and political dimensions. 6. Critique of Legal Education
Distinction Between Law and Policy : o Teachers enforce a strict distinction between law and policy through authoritative arguments that often lack internal coherence. This creates a mystified view of legal reasoning, presenting it as a purely technical exercise detached from ethical and political considerations. o This approach limits students' ability to critically engage with the law and understand its broader societal implications.
Rights Discourse : o The discourse around rights is seen as inconsistent and inadequate for driving radical transformation. While rights are important, they often fail to address substantive inequalities and can be co-opted to maintain the status quo. o The separation of state enforcement from private civil society in rights discourse limits the potential for meaningful social change and reinforces existing power structures.
Challenges for Left-Wing Thinking : o Liberal students who rely on rights discourse face challenges in advocating for substantive change. The complexity and conservative bias of the legal system make it difficult to use rights effectively for radical purposes. o Radical interpretations of the law, such as viewing judicial actions as expressions of class interests, are often sidelined due to the overwhelming emphasis on technical legal reasoning. 7. Emotional and Intellectual Surrender
First-Year Cases : o "Cold" cases are intellectually challenging but politically neutral. They focus on technical legal issues and require students to develop strong analytical skills. o "Hot" cases provoke moral outrage but are used to teach students to suppress their emotional reactions in favor of detached legal reasoning. This process helps students develop emotional resilience but can also lead to a sense of disconnection from the ethical dimensions of the law.

o The combination of cold and hot cases forces students to develop emotional calluses and focus on technical mastery, often at the expense of critical engagement with the law's broader societal implications. Examples

Appalachian Farm Family vs. Coal Company : o In this case, a coal company broke a promise to restore land after strip mining, resulting in minimal damages being awarded by the court. This case is used to illustrate the importance of legal reasoning over emotional reactions. o The judicial opinion awarding minimal damages serves as an example of how the legal system can fail to deliver justice, reinforcing the need for students to focus on technical proficiency rather than moral outrage. Main Thesis: Kennedy argues that law schools are intensely political institutions that indoctrinate students into accepting and perpetuating existing social hierarchies. This indoctrination happens through both the formal curriculum and the socialisation process within the institution. Key Arguments 1.Ideological Training in Law Schools:
Law School as Ideological: Kennedy asserts that law schools teach students not just legal skills, but also a biased worldview that supports existing hierarchies. This indoctrination makes students believe that the current legal and social structures are natural, efficient, and fair.
Students' Acceptance: Students internalise these beliefs and behaviours, reinforcing the system by acting within the channels established for them, thus perpetuating the hierarchy.

The First-Year Experience:

Contrasting Motives: Students often enter law school with the idea of using law for social good, motivated by radical ideas of using law against established interests.
Ambivalence and Competition: Law school cultivates a competitive, hard-working style that can conflict with students' initial idealism. The hierarchical, fear-inducing classroom environment further complicates their motivations.
Classroom Hierarchy: The hierarchical and authoritarian classroom experience, often led by white, male, middle-class teachers, infantilises students and reinforces conservative cultural norms.
Intellectual and Emotional Challenges: The law-school experience involves mastering a new language and dealing with complex, often boring materials, as well as

views on the economy, society, and the legal profession, influencing their perspectives on societal structures. These ideological teachings begin early in students' education, shaping their beliefs about the law's role in society before they fully grasp professional realities. The structured curriculum forms a foundation of beliefs that profoundly impacts students' understanding of societal dynamics and their place within them. Cold Cases vs. Hot Cases The contrast between "cold cases" and "hot cases" within the first-year law school curriculum represents a fundamental aspect of legal education that shapes students' intellectual and emotional experiences. Cold cases typically involve technical legal issues, often devoid of obvious political or moral significance. These cases challenge students with their complexity, requiring mastery of legal terms and concepts. Because of their technical nature, cold cases may initially fail to capture students' interest or evoke strong emotional reactions. In contrast, hot cases are characterized by morally charged and emotionally provocative facts. These cases often involve issues that resonate deeply with societal values, such as human rights violations, social injustice, or egregious misconduct. Initially, these cases may elicit strong emotional reactions from students due to their compelling narratives and moral implications. However, legal education instructs students to suppress these emotional responses and adopt a detached, analytical mindset. The educational system encourages students to approach legal analysis with objectivity and impartiality, focusing on the application of legal principles rather than personal sentiments. This emphasis on analytical rigor aims to cultivate students' ability to critically evaluate legal arguments and make sound legal judgments based on reasoned analysis rather than emotional bias. However, the suppression of emotional engagement with hot cases raises ethical questions about the role of empathy and social consciousness in legal practice. While detachment and objectivity are essential for effective legal reasoning, the exclusive emphasis on analytical thinking may risk overlooking the human impact of legal decisions. By disregarding the emotional dimensions of legal issues, students may inadvertently perpetuate systemic injustices or fail to recognize the broader societal implications of legal decisions. Moreover, the dichotomy between cold and hot cases underscores broader tensions within legal education between the study of law as a technical discipline and its social and moral dimensions. While cold cases serve to develop students' analytical skills and understanding of legal doctrine, hot cases challenge students to grapple with the ethical complexities of law and confront the real-world consequences of legal decisions. Ultimately, the juxtaposition of cold and hot cases in legal education reflects the multidimensional nature of legal practice, where the application of legal principles intersects with broader societal values and moral considerations. Balancing analytical rigor with empathy

and social consciousness is essential for aspiring lawyers to navigate the complexities of legal practice responsibly and ethically Skills and Knowledge Acquisition Contrary to some students’ claims that they learn nothing in law school, they actually acquire a variety of essential skills. These skills are foundational for legal practice and involve a range of analytical and organizational abilities:

Retention of Rules : Students learn to retain and organize large numbers of rules into categorical systems, such as the requisites for contracts and rules about breaches. This skill is fundamental for legal reasoning and practice.
Issue Spotting : This involves identifying ambiguities, conflicts, or gaps in the rules when applied to specific fact situations. It is a critical skill for legal analysis and problem-solving.
Case Analysis : Students learn to generate broad and narrow holdings for cases, extending or limiting their applicability. This skill allows lawyers to argue how precedents should or should not apply to new cases.
Policy Arguments : Legal education teaches students to use balanced, formulaic policy arguments in legal reasoning. These arguments address the need for certainty versus flexibility, promoting competition versus encouraging production, and other dichotomies. These skills are integral to legal advocacy and decision-making. These skills, while seemingly straightforward, are crucial for navigating the complexities of legal practice. They enable lawyers to interpret and apply the law effectively, balancing competing interests and principles. Mystification of Legal Skills Despite the acquisition of these skills, legal education often mystifies them for students, making the learning process opaque and confusing. This mystification occurs in three main ways:
Teaching Legal Reasoning : Legal reasoning is presented as a rigorous analytical procedure unique to the legal profession, unintelligible to laymen, yet validating the majority of existing legal rules. Legal issues are treated in isolation, preventing students from developing an integrated vision of the law and its potential for change.
Absorption by Osmosis : Skills are taught in a context that emphasizes unconnected legal problems, leading to bad or only randomly effective teaching. Students are expected to pick up the knack of "thinking like a lawyer" through osmosis, resulting in a process that generates and accentuates real and imagined differences in student capabilities. Students are often unaware of their own learning progress and have no means of improving their learning processes.
Isolation from Practice : Legal reasoning is sharply distinguished from actual law practice, disabling students from understanding practical lawyering experiences. This

Cultural Uniformity and Alienation: Law schools promote a homogenous cultural style that alienates students from diverse backgrounds, enforcing conformity to dominant norms.
Faculty and Status Consciousness: Law professors prioritize institutional status, often at the expense of diversity and affirmative action, perpetuating hierarchical values.
Student-Faculty Dynamics: Student-faculty relationships mirror hierarchical dynamics, preparing students for hierarchical interactions in their professional careers.
Social Segregation and Professionalism: Social segregation within law schools reinforces hierarchical structures, teaching students that professional success often depends on maintaining these hierarchies.
Homogeneity and Cultural Conformity: Legal education imposes a homogenous cultural style that aligns with white, middle-class, male norms, forcing students from diverse backgrounds to conform.
Student Interactions and Competition: While cooperation is encouraged, students engage in intense competition for grades and job offers, mirroring hierarchical structures within law firms.
The Placement Process: The placement process reinforces hierarchical values by ranking students based on their desirability to top law firms, defining success by acceptance into prestigious firms.
Student Responses to Hierarchy: Students may embrace, resist, or compromise with hierarchical norms based on their beliefs and career aspirations. Left-leaning students may initially resist but often compromise due to job market realities. 2. STRATETEGY FOR LEGAL EDUCATION Historical Context :

Major liberation movements in history have often had intellectuals from the ruling class who provided ideas, knowledge, and leadership.
Kennedy believes a similar group is essential in the U.S. to successfully challenge the current system.

Focus on Ideas :

In the absence of a broad leftist movement, organizing around ideas is crucial.
This doesn't mean pushing a rigid ideology like Marxism but fostering discussions and debates about philosophy, social theory, and public policy to build a sense of community among left-wing intellectuals.

Local-Level Organization :

These discussions should happen at the local level, within institutions where potential leftist intellectuals are situated, like universities or law schools.

The aim is to address specific issues related to hierarchy and authority within these institutions.

Hierarchy and Authoritarianism :

A key focus is on the authoritarian nature of workplaces and educational environments, especially the use of supervisory power and policies that maintain class, gender, and racial hierarchies.
Challenging these structures is essential for creating a more egalitarian society.

Non-Revolutionary but Radical :

Kennedy's strategy is not about violent uprisings or the belief that capitalism will collapse on its own.
Instead, it involves taking risks, being insubordinate, and rebelling against existing hierarchies.
The goal is a total dismantling of the current system, not just reforms to make it fairer.

Long-Term Goals vs. Short-Term Gains :

While it's important to achieve short-term victories, these should serve the long-term goal of radical transformation.
Short-term wins can provide momentum and help convert more people to the cause. Practical Steps in a Law School

Left Study Groups :

Start small groups for discussing leftist ideas and experiences within the law school.
These groups can read and discuss texts critical of legal education and the authoritarian nature of the classroom.

Building Alliances :

Connect with sympathetic faculty and other activists within and outside the institution.
This helps in growing a supportive community for leftist ideas and actions.

Organizing Activities :

Consider setting up a chapter of the National Lawyers Guild or organizing speaker events with leftist practitioners and academics.
These activities can attract new members and provide intellectual stimulation.

Forms of Resistance :

Learning rule systems: Understanding the basic rules and principles of law, Skills training: Learning how to handle cases, manipulate rules, and argue for or against policies, Methods of instruction: This includes studying cases and materials, using computer-based learning exercises, attending faculty-led classes, watching videotaped lectures, and participating in tutorials.

Clinical Program Practical experience in law, required over two years, plus a summer session.
- What's included: Simulations and writing: Practicing law through mock trials and extensive legal writing exercises, Hearing-type settings: Gaining experience in small- scale legal hearings, Legal clinic: Spending two months in a large, school-run legal clinic that operates like a teaching hospital, covering most practical and ethical aspects of law practice.
  1. Interdisciplinary Course A parallel course to the Doctrine Course, running for three or four hours each week.
- What's included: Diverse subjects: Covers history, jurisprudence, economics, sociology of law, the legal profession, social psychology, social theory, and political philosophy, Integration: These topics are closely tied to the doctrinal and clinical studies, Political perspectives: Students are exposed to two distinct viewpoints, one from the political left and one from the political right, to give a balanced understanding.
Third Year A more flexible year with few formal requirements, allowing students and faculty to decide what to focus on.
- Options available: Research Institute: Students can engage in advanced research, Advanced clinical work: Continuing practical work in the legal clinic, Specialization: Students can concentrate on specific practice areas or fields of study that interest them. Basically ,
1. Comprehensive Education: The structured sequence ensures that students receive a thorough grounding in both theoretical and practical aspects of law.
2. Balanced Perspective: The interdisciplinary course ensures students understand law in the context of broader social, economic, and political factors, while exposing them to diverse viewpoints.
3. Practical Skills: The clinical program emphasizes real-world experience, preparing students for the practical demands of legal practice.

Flexibility and Specialization: The third year offers flexibility and opportunities for students to pursue advanced studies, clinical work, or specialize in areas of interest, thus catering to individual career goals. 4.MEASURES Duncan proposes several measures aimed at reducing unfair hierarchies and feelings of alienation within the law school and in the broader legal profession.
Admissions

Proposal: Use a test to ensure basic legal skills, then admit students through a lottery system. Inclusion: Set quotas in the lottery for women, minorities, and working-class students. Public Campaign: Promote the goal of changing the social makeup of the legal profession.

Hierarchy Among Students

Educational Equality: Revise the curriculum to help students who are struggling academically. Investment: Allocate significant resources to support students at the bottom of the academic hierarchy. Law Review and Grading: Abolish the current selection system for the law review and change the grading system to avoid negative incentives. Feedback: Implement new ways to provide feedback at all levels.

Channelling of Students

Information and Training: Provide students with accurate information about different legal careers and equip them with the necessary skills to make informed choices. Equal Opportunity: Overhaul the placement system to ensure fair opportunities for all types of legal work, not just large firms. Research and Reform: Study the potential for viable public-interest and small-scale legal practices and propose necessary changes to the curriculum or laws.

Faculty Hierarchy

Diverse Hiring: Prioritize hiring qualified women, minorities, and working-class candidates until they are well-represented. Tenure System: Either make all faculty tenured or none tenured. Democratic Hiring: Create an elected committee with representatives from all groups to handle hiring. Support: Implement programs to help improve teaching and research skills for all faculty members, similar to the support for students.

WEEKS 2: CRITICAL LEGAL ORIENTATIONS

Margaret Davies, “Ethics and Methodology in Legal Theory Introduction

Scholarly Claims in Legal Philosophy : Legal philosophy often features scholars who claim to break with significant aspects of existing jurisprudence or strongly reassert ancient traditions within modern frameworks. Examples include Finnis (1980) who engaged with traditional natural law within a contemporary setting. Modern Jurisprudential Movements

Natural Law and Positivism : o Austin and Bentham : These figures were revolutionary for rejecting the unscientific combination of natural law and common law. They introduced a more systematic approach to legal theory. o Legal Realism : This movement, represented by scholars like Llewellyn (1931), broke away from abstraction and formalism, emphasizing the practical application of law. o HLA Hart : Hart rejuvenated positivism by moving away from the rigid Austinian system, incorporating more nuanced understandings of legal systems. o Ronald Dworkin : Dworkin's work was a direct challenge to positivism. He argued for the interpretative nature of law, creating a new path in legal theory.
Critical Legal Thought : o Feminist Jurisprudence : § Catherine MacKinnon : Feminist jurisprudence broke from patriarchal legal structures, with scholars like MacKinnon (1983a, 1983b) highlighting how law perpetuates gender inequalities. o Critical Legal Studies (CLS) : § Kelman : CLS criticized positivism and formalism for not considering law within its social context and highlighted the indeterminate nature of law (Kelman 1984). o Racial Critiques : § Behrendt, Harris, Williams, Delgado : These scholars argued that feminism and CLS did not fully address racial power dynamics. They emphasized the intersectionality of race and law, critiquing existing frameworks for their lack of inclusivity (Behrendt 1993, Harris 1990, Williams 1987, Delgado 1987). Philosophy and Tradition: Rodolphe Gasché : Gasché notes that challenging tradition is itself traditional in philosophy, stating, "a break with tradition is in the best tradition of philosophical thought" (Gasché 1994). This highlights that philosophy is characterized by new

beginnings and claims to break with tradition, demonstrating that tradition and method in philosophy are inherently about challenging previous ideas. Feminist Thought: Liberal Feminism : Liberal feminism challenged the notion that women are naturally inferior to men and advocated for women's full participation in public life. This movement contradicted traditional beliefs about women's incapacity to contribute to world affairs by upholding the ideal of the independent rational man for all women. Theory as Dynamic: Active Participation of Theory : Theory should not be seen as static or merely descriptive but as an active participant in the legal arena. Legal theory influences legal culture and law itself, suggesting that theories and methods are ongoing performances that shape subjects and objects. Critical Methodology

Critical Researcher’s Embeddedness : The critical researcher acknowledges their embeddedness in social, historical, and political contexts, aiming for self-reflection and awareness of scholarly norms (Horkheimer 1968).
Key Questions for Critical Researchers : Critical researchers must consider the origins of 'good' scholarship norms, how ethical and political beliefs influence research, and how research can challenge power structures. Conducting Ethical Research: Avoiding Further Colonization : Feminist research should be conducted in ways that do not further colonize Indigenous knowledge or marginalize racial minorities. Matsuda (1988, 1989) emphasizes the importance of methodologies in the humanities and law that exhibit flexibility, challenging the separation of the researching subject from objective knowledge. Critical Theory and Self-Reflection: Self-Reflection in Critical Theory : Critical theory relies on self-reflection and awareness of the positioning of subjects in constructing knowledge. A critical method involves multiple paths to various truths rather than a single truth. Example: Mabo Case: Mabo Case Analysis : The supposed break from terra nullius in the Mabo (No 2) case was seen as a reinstatement of terra nullius through native title. This example illustrates the difficulty of breaking from colonial legal identity and demonstrates the complexity of achieving substantive legal reform. Conclusion: Dynamic Nature of Legal Method : The methodology in legal theory is dynamic and cannot be reduced to a single set of standards. It involves continuous reflection and adaptation, influenced by ethical and political contexts. Davies advocates for a flexible and self-reflective approach to legal research, acknowledging the complexities and intersections of various critical perspectives.

critical of the individual within the system for it to truly qualify as critique. She is saying that it is not true critique until you reflect on your behaviour within the system as well.

she is pushing us to think of language, she talks about how one must draw the difference between critique, critical and criticism. One needs to take a note of the nuances to truly appreciate the differences between the three.
CLS in its true sense would not only critique race for example in a binary manner saying that white is supreme and black is below it. It would incorporate criticism against the system and the institutions, but also criticise the parties in the relationship - both the black and the white. It’s not a binary relationship, it is a complex relationship. As a black person one would criticise the system while also talking about how their racialised body is implicated within the system. The relationship that we have to authority is extremely important, not only is authority being enforced but it is also being accepted. Authority is being reproduced and hierarchies like Kennedy said is being reproduced.
Acknowledging the relationship of the self and the object of the critique will truly embody the spirit of CLS. Because the tradition of incorporating the self in CLS has not happened and the only thing CLS does is critique authority - it falls flat and becomes orthodox and tradition. it is not necessary that only the self needs to be incorporated, CLS essentially should mean and incorporate that all types of criticism need to exist. Like diverse points should come in, but because CLS has reduced to only criticising authority and nothing else it isn’t truly CLS critique anymore and has become the very thing it sought to eliminate/ critique.
How do you perform a critique? - you search for a point of contradiction and enter through there - you therefore search for the paradox.
Thus, the acknowledgement of plural subjectivity in oneself is central to disrupting established power relationships. For the theorist who adopts this as an ethical goal, plural consciousness constitutes a methodology advancing that ethical goal.
A critical politics is founded not merely upon a determinate program of action for change of the outside world, but a consciousness of how the self and others inter-relate within a given context. Test notes: Paradox: Critique was about breaking away from tradition, but now it is an integral part of it. Margaret Davies discusses the ideal critical researcher as one who understands that they are not purely an observer in the knowledge and scenarios that they are consuming but are also a part of this social, historical and political context wherein this knowledge is formed. The primary question that Davies attempts to answer in this paper focuses on methodology. This methodology – she focuses on what is considered to be ‘good’ or ‘bad’ methodology, and how to employ methodology that is ethical. Considering the various ways in which this can be construed implies a certain degree of flexibility that it has. This flexibility allows for the ability to remain attentive to it in research which allows for a disruption in established patterns of oppression. This flexibility additionally helps counter the “objectivity” provided by Western observers. Davis Raises important methodological questions (1) What are the norms of ‘good

scholarship’ (3) where are these norms derived from, culturally and politically? (2) What are the basis on which they can be challenged/reformed (4) How do ethical and political beliefs influence the substance and methodology of research. The author’s central view is to present that research in which the self is in production together with the object of research cannot be separated from the question of who you are as a researcher and as a human being. To understand this one must understand how one’s ethical and political position in the socio- political context affects their research and the methodology that they employ. ‘Uncovering the infinite potentiality of phenomena’: To understand the author’s perception of different layers being important to research and methodology it is first essential to understand her initial beliefs in ‘the death of the author’. This principle believed that the intent of the author in their works was irrelevant and that it was strictly ‘language which speaks, not the author’. Interpretation is therefore freed from the constraints that intention places on it and this leads to endless possibility. In this spirit the author did not take the interview of the author of a book she was writing on. However, as she reflects on it through this paper, she regrets her decision to do so. She regrets it because she discounted for the fact that while the author’s intent should not bind interpretation it can be part of interpretation. A plurality in understandings is not something that she was trying to avoid, yet by declining the opportunity to interview the author she inadvertently did so. The element that prevented her from doing so was her personal manifesto that the author is dead. This manifesto prevented her and limited the possibilities of her knowledge. This therefore links to her sub-title to the paper which is a research anti-manifesto. ‘Metaphysics are no concern of mine’: The tradition of breaking away from tradition is established as one of the best traditions of philosophical thought. In fact, the greats of philosophy are the ones who have broken tradition in a spectacular fashion. Legal theory has gone through such a tradition and is now composed of a multitude of movements. Challenging a tradition and a power base might result in reinforcing it. The author once again brings light to her dogmatic rejection of Angela Carter as an author due to its ‘traditional method of literary interpretation’ however - her views did not have to be regarded as an 'authentic' voice of interpretation, but rather as one further narrative within the plural and dynamic narratives already available. By rejecting Carter’s authority on the subject matter, the author was reinscribing the authority over the subject to herself. The idea that restricting her interpretation to only herself might be more closed than that of the author did not occur to her. The dogmatic rejection of tradition may often only end up reinscribing to some central aspect of that tradition. She therefore says that the ideal critical scholar’s role is neither inside not outside, but rather one that is marginal. It focuses on remaining reflective - about our own position in relation to the structures and symbols of power which surround and construct us, about the difficulties (and thus the importance) of seeing beyond their frontiers, and about the nature and limitations of the theorising self.