Morphological analysis of legal ideology: locating interpretive divergence

Lees, E. and Shepherd, E. (2018) Morphological analysis of legal ideology: locating interpretive divergence. Journal of Property, Planning and Environmental Law, 10 (1). pp. 5-16. ISSN 2514-9407 doi: 10.1108/JPPEL-12-2017-0041

Abstract/Summary

Purpose This purpose of this paper is to present a ‘manifesto’ exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology. Approach We explore ideology within law and legal culture. We examine one such ideology – rule of law – and consider how this can shape judicial decision-making. We suggest techniques by which such influences can be identified. Findings We make four findings. First, following Freeden, ideology can be understood as a ubiquitous form of political thinking which seeks to fix the meanings of essentially contested concepts. Second, ideology in this sense forms an important part, but is distinguishable from, the wider notion of legal culture. Considering ideology in law as an element of legal culture can therefore be fruitful in providing a rich understanding of interpretive disagreements among the judiciary. Third, rule of law as an ideal is itself ideological, as it comprises contested concepts such as certainty, equality, stability, and legality. It can be considered to constitute an internal ideology of law and we can analyse how the concepts are de-contested in individual decisions. Finally, understanding this can help in the analysis of judgements in areas with high levels of administrative discretion and political contestation, such as planning and environmental law, as it helps us to understand how any particular judge sees the role of the court in its wider political context. Originality The originality of our approach lies in the drawing together of methodological techniques and understandings of ideology in, and in relation to, law.

Item Type	Article
URI	https://reading-clone.eprints-hosting.org/id/eprint/75250
Item Type	Article
Refereed	Yes
Divisions	Henley Business School > Real Estate and Planning
Uncontrolled Keywords	ideology, Freeden, rule of law, planning law, legal culture, methodology
Publisher	Emerald
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