Analytical and Critical Legal Research

And justice, which must be specified, because the word alone carries no content: justice as fairness of procedure, as equality of outcome, or as desert are three different standards.

The relation between them

Analysis comes first. You cannot judge a rule you have not taken apart, and most bad criticism is criticism of a rule the writer has misread.

Criticism without analysis is complaint. It objects to an impression of the rule.

Analysis without criticism is description. Complete, useful, and it stops.

And both are doctrinal in their material, chapter 840, which is why they can be done in a library.

What good criticism looks like

It states the standard first, before the judgment.

It applies the standard to the rule as analysed, not to a caricature.

It concedes what the rule does well. Chapter 350's treatment of the traditional examination is written this way on purpose, and the concession makes the criticism stronger.

It identifies whose interest the rule serves, which is often the most illuminating question and is rarely asked in student work.

It distinguishes the rule from its administration. A rule may be sound and its administration bad, and the remedies differ entirely, chapter 710.

And it stops where the evidence stops. A criticism that the rule is not working is an empirical claim, chapter 830, and needs data.

The failure modes

The unnamed standard. Judging without saying by what.

The moving standard. Criticising one feature for inefficiency and the next for injustice, so that the rule cannot satisfy both and the criticism is unanswerable.

Criticising the rule for what its administration does.

Criticising a rule for not doing what it never claimed to do.

And the counsel of perfection. Comparing the rule with an ideal rather than with the available alternatives, which produces criticism that is true and useless.

A worked example

Section 13(1) of the Legal Services Authorities Act, analysed and then criticised.

Analysis. Two elements: satisfaction of a section 12 criterion, and the Authority's satisfaction of a prima facie case to prosecute or defend. The decider is the concerned Authority. The material is the application and whatever scrutiny under regulation 7 of the 2010 Regulations produces. The standard is prima facie, that is, at first sight, not probability of success. The consequence of satisfaction is entitlement to legal services. The assumption is that an Authority can judge a case's prima facie merits on paper without the applicant.

Criticism, standard named. Judged by Anita Kushwaha's fourth facet, affordability of access, the filter is defensible: public funds are finite and directing them away from hopeless matters increases what is available for the rest.

Judged by the first facet, an effective adjudicatory mechanism, it is more doubtful: the decision is administrative, taken on paper, often without the applicant being heard, and a refusal leaves them without a lawyer and without an obvious remedy.

The concession. No system can fund every application, so some filter is necessary; the criticism is of this filter's procedure, not of filtering.

And the empirical limit. Whether refusals are in fact frequent or arbitrary is a question of fact that criticism cannot settle, and the refusal figures held by any District Authority would settle it. That last sentence is the honest stopping point, and writing it is what distinguishes disciplined criticism from confident opinion.

Quick revision

Analytical research breaks a rule into elements, identifies who decides each and on what material, states the consequence, the exceptions and what the rule assumes, and places it among its neighbours.

Critical research evaluates the rule against a named standard: a constitutional value, a judicially stated standard such as Anita Kushwaha's four facets, the rule's own declared purpose, efficiency, coherence, or a specified conception of justice.

Analysis first. Criticism without analysis is complaint; analysis without criticism is description.

Good criticism: names the standard first; applies it to the rule as analysed; concedes what the rule does well; asks whose interest it serves; separates the rule from its administration; and stops where the evidence stops.

Failure modes: the unnamed standard; the moving standard; blaming the rule for its administration; criticising a rule for what it never claimed; and comparing it with an ideal rather than with the alternatives.

Test yourself

1. Distinguish analytical from critical research. Analytical research takes a rule apart to establish exactly what it does, identifying its elements, the decider, the consequence, the exceptions and its assumptions. Critical research evaluates the rule against a stated external standard in order to say whether it succeeds.

2. Which standard is the strongest for criticism, and why? The rule's own declared purpose, because the rule cannot object to being judged by what it said it was for. Schedule II's own prescription that the clinical papers be assessed by practical exercises licenses the criticism that examining them by written paper is a failure of the instrument.

3. Name five failure modes in critical writing. Not naming the standard; moving the standard between features so that the rule cannot satisfy the criticism; criticising the rule for faults of its administration; criticising a rule for not achieving something it never claimed; and comparing the rule with an ideal rather than with the available alternatives.

4. Why must analysis precede criticism? Because a rule cannot be judged until it has been taken apart, and most poor criticism is directed at a misreading. Criticism without analysis objects to an impression of the rule rather than to the rule.