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The practices of legal theory

Chapter


Abstract


  • When we think about practice in law, we tend to mean something quite

    specific - the methods by which we 'do' law, practically. The day-to-day nuts

    and bolts of getting legal work done, following procedural rules, reading and

    interpreting cases and legislation, as well as appearing in court and all of its

    associated paraphernalia, argumentation, and theatrical presence. The kinds

    of practices to be explored in this chapter are also intimately connected to the

    practice of law, 1 but not because we are consciously aware of their existence -

    we may have no idea how much they influence and help us 'do' or carry out

    our work as lawyers. In this chapter, we want to consider these practices in two

    ways. The first explores how legal theory is used in law, to establish the ground

    rules or frameworks that guide the reasoning of the courts and to crack open

    boilerplate precedent, where the law goes against you, and where the law clings

    to old and outdated ideas. This chapter is designed to help find when legal theory

    has been incorporated into judgments and the texts oflaw. 2 We will tease out the

    remnant strands of the DNA of legal theory located deep within the doctrines

    and principles of the law. We will find that it is often so deeply hidden that it is

    assumed to be part of the law itself- ie, that no trace of the theory can be seen,

    and all that remains are rules and principles. We will find out how we can trace

    this lost DNA through the cases. We also call this the 'hidden' or 'secret' language

    of the law, because unless we know what a legal theory says, we will never know

    when the judges are using theoretical concepts to frame their reasoning, or when

    counsel uses theory to construct an argument in a novel case .

Publication Date


  • 2014

Edition


  • 2

Citation


  • Leiboff, M. (2014). The practices of legal theory. In M. Leiboff & M. Thomas (Eds.), Legal Theories: Contexts and Practices (pp. 91-122). Australia: Thomson Reuters.

International Standard Book Number (isbn) 13


  • 9780455231051

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1611

Book Title


  • Legal Theories: Contexts and Practices

Start Page


  • 91

End Page


  • 122

Place Of Publication


  • Australia

Abstract


  • When we think about practice in law, we tend to mean something quite

    specific - the methods by which we 'do' law, practically. The day-to-day nuts

    and bolts of getting legal work done, following procedural rules, reading and

    interpreting cases and legislation, as well as appearing in court and all of its

    associated paraphernalia, argumentation, and theatrical presence. The kinds

    of practices to be explored in this chapter are also intimately connected to the

    practice of law, 1 but not because we are consciously aware of their existence -

    we may have no idea how much they influence and help us 'do' or carry out

    our work as lawyers. In this chapter, we want to consider these practices in two

    ways. The first explores how legal theory is used in law, to establish the ground

    rules or frameworks that guide the reasoning of the courts and to crack open

    boilerplate precedent, where the law goes against you, and where the law clings

    to old and outdated ideas. This chapter is designed to help find when legal theory

    has been incorporated into judgments and the texts oflaw. 2 We will tease out the

    remnant strands of the DNA of legal theory located deep within the doctrines

    and principles of the law. We will find that it is often so deeply hidden that it is

    assumed to be part of the law itself- ie, that no trace of the theory can be seen,

    and all that remains are rules and principles. We will find out how we can trace

    this lost DNA through the cases. We also call this the 'hidden' or 'secret' language

    of the law, because unless we know what a legal theory says, we will never know

    when the judges are using theoretical concepts to frame their reasoning, or when

    counsel uses theory to construct an argument in a novel case .

Publication Date


  • 2014

Edition


  • 2

Citation


  • Leiboff, M. (2014). The practices of legal theory. In M. Leiboff & M. Thomas (Eds.), Legal Theories: Contexts and Practices (pp. 91-122). Australia: Thomson Reuters.

International Standard Book Number (isbn) 13


  • 9780455231051

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1611

Book Title


  • Legal Theories: Contexts and Practices

Start Page


  • 91

End Page


  • 122

Place Of Publication


  • Australia