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the landscape that decides it all: the officials; the institutions; politics; the judiciary; the police; policy. Why one interpretation and not another? The critical thinker has to remain engaged not only in micro questions within the text, both at the superficial and the deep readings, but also engage in macro questions at the level of law, politics and culture; at the level of text as social fact, as the product of a culture; continuing the search for underlying assumptions. Much law degree study will revolve around ‘fighting’ with the language of and arguments in cases, reconciling, distinguishing and/or following them and explaining differences of interpretation where some might say there are no differences. Students learn an increasingly larger body of rules and, more and more, the overarching context of institutions and culture shrinks into the background. They are interesting from an academic perspective, but cultural legal content has no place in the everyday life of the law and its mediation of competing interests. It is in the interest of these legal institutional values that the legal ‘story’ is the one that covers all. There is a danger that the daily process of doing the law blinds the ‘doers’ who are on the street (the practitioners) to the motivational influences of some institutional creators of law. When deciding what words mean in court, judges make far reaching decisions and maintain that they do not do so on grounds of morality, religion, justice or ethics, but purely as a true interpretation of the words. They support the view that one must believe in the ultimate good of the law and the ultimate ability of the law to determine what the law means. A problem can now be seen. As pointed out above, the law is not an autonomous neutral agent, it is used by people in a political and social role. Legal texts can be analysed as social texts created by social actors. Statutes are texts communicated via words created by politicians in compromise, interpreted by judges for a range of reasons, some explicit some not. The orthodox view is that law is a neutral instrument to achieve a moral society. Law is objective, rational and logical. Can discussions about law ever be justifiably separated from discussions about power, from discussions of law maintaining society and its political ideology. Access to law making power is only available to players in the higher levels of the political machinery or professionals in the higher judiciary. Law is not logical, nor does it have to be. There is social agreement that, for a range of reasons—political, social and moral—English law should be seen to be fair, and outrage when it is thought to be not fair. Statutory rules have attempted to engage in behaviour re-direction. But to apply a rule to a problem requires the clarification of the problem and proof that the facts of the problem as presented are the facts that occurred. Rules have developed which state what must be proved by testimonial or forensic evidence and when evidence itself must be backed up. Due to the developmental strategies of the common law, its orality of proceeding, the breaking away of the courts from the royal household, the ultimate ascendancy of statutory law and the complete reorganisation of the courts of England and Wales in 1875 and 1978, we now have a system of law which is based upon the reaction to arguments presented to those officials who decide which argument is legitimate, be they negotiators in offices, tribunals and juries, magistrates and appellate courts. This system is being challenged, stretched and changed by
DOI link for the landscape that decides it all: the officials; the institutions; politics; the judiciary; the police; policy. Why one interpretation and not another? The critical thinker has to remain engaged not only in micro questions within the text, both at the superficial and the deep readings, but also engage in macro questions at the level of law, politics and culture; at the level of text as social fact, as the product of a culture; continuing the search for underlying assumptions. Much law degree study will revolve around ‘fighting’ with the language of and arguments in cases, reconciling, distinguishing and/or following them and explaining differences of interpretation where some might say there are no differences. Students learn an increasingly larger body of rules and, more and more, the overarching context of institutions and culture shrinks into the background. They are interesting from an academic perspective, but cultural legal content has no place in the everyday life of the law and its mediation of competing interests. It is in the interest of these legal institutional values that the legal ‘story’ is the one that covers all. There is a danger that the daily process of doing the law blinds the ‘doers’ who are on the street (the practitioners) to the motivational influences of some institutional creators of law. When deciding what words mean in court, judges make far reaching decisions and maintain that they do not do so on grounds of morality, religion, justice or ethics, but purely as a true interpretation of the words. They support the view that one must believe in the ultimate good of the law and the ultimate ability of the law to determine what the law means. A problem can now be seen. As pointed out above, the law is not an autonomous neutral agent, it is used by people in a political and social role. Legal texts can be analysed as social texts created by social actors. Statutes are texts communicated via words created by politicians in compromise, interpreted by judges for a range of reasons, some explicit some not. The orthodox view is that law is a neutral instrument to achieve a moral society. Law is objective, rational and logical. Can discussions about law ever be justifiably separated from discussions about power, from discussions of law maintaining society and its political ideology. Access to law making power is only available to players in the higher levels of the political machinery or professionals in the higher judiciary. Law is not logical, nor does it have to be. There is social agreement that, for a range of reasons—political, social and moral—English law should be seen to be fair, and outrage when it is thought to be not fair. Statutory rules have attempted to engage in behaviour re-direction. But to apply a rule to a problem requires the clarification of the problem and proof that the facts of the problem as presented are the facts that occurred. Rules have developed which state what must be proved by testimonial or forensic evidence and when evidence itself must be backed up. Due to the developmental strategies of the common law, its orality of proceeding, the breaking away of the courts from the royal household, the ultimate ascendancy of statutory law and the complete reorganisation of the courts of England and Wales in 1875 and 1978, we now have a system of law which is based upon the reaction to arguments presented to those officials who decide which argument is legitimate, be they negotiators in offices, tribunals and juries, magistrates and appellate courts. This system is being challenged, stretched and changed by
the landscape that decides it all: the officials; the institutions; politics; the judiciary; the police; policy. Why one interpretation and not another? The critical thinker has to remain engaged not only in micro questions within the text, both at the superficial and the deep readings, but also engage in macro questions at the level of law, politics and culture; at the level of text as social fact, as the product of a culture; continuing the search for underlying assumptions. Much law degree study will revolve around ‘fighting’ with the language of and arguments in cases, reconciling, distinguishing and/or following them and explaining differences of interpretation where some might say there are no differences. Students learn an increasingly larger body of rules and, more and more, the overarching context of institutions and culture shrinks into the background. They are interesting from an academic perspective, but cultural legal content has no place in the everyday life of the law and its mediation of competing interests. It is in the interest of these legal institutional values that the legal ‘story’ is the one that covers all. There is a danger that the daily process of doing the law blinds the ‘doers’ who are on the street (the practitioners) to the motivational influences of some institutional creators of law. When deciding what words mean in court, judges make far reaching decisions and maintain that they do not do so on grounds of morality, religion, justice or ethics, but purely as a true interpretation of the words. They support the view that one must believe in the ultimate good of the law and the ultimate ability of the law to determine what the law means. A problem can now be seen. As pointed out above, the law is not an autonomous neutral agent, it is used by people in a political and social role. Legal texts can be analysed as social texts created by social actors. Statutes are texts communicated via words created by politicians in compromise, interpreted by judges for a range of reasons, some explicit some not. The orthodox view is that law is a neutral instrument to achieve a moral society. Law is objective, rational and logical. Can discussions about law ever be justifiably separated from discussions about power, from discussions of law maintaining society and its political ideology. Access to law making power is only available to players in the higher levels of the political machinery or professionals in the higher judiciary. Law is not logical, nor does it have to be. There is social agreement that, for a range of reasons—political, social and moral—English law should be seen to be fair, and outrage when it is thought to be not fair. Statutory rules have attempted to engage in behaviour re-direction. But to apply a rule to a problem requires the clarification of the problem and proof that the facts of the problem as presented are the facts that occurred. Rules have developed which state what must be proved by testimonial or forensic evidence and when evidence itself must be backed up. Due to the developmental strategies of the common law, its orality of proceeding, the breaking away of the courts from the royal household, the ultimate ascendancy of statutory law and the complete reorganisation of the courts of England and Wales in 1875 and 1978, we now have a system of law which is based upon the reaction to arguments presented to those officials who decide which argument is legitimate, be they negotiators in offices, tribunals and juries, magistrates and appellate courts. This system is being challenged, stretched and changed by
ABSTRACT
The critical thinker has to remain engaged not only in micro questions within the text, both at the superficial and the deep readings, but also engage in macro questions at the level of law, politics and culture; at the level of text as social fact, as the product of a culture; continuing the search for underlying assumptions.
