Concept, Importance &

Approaches to Legal Method

By: Adv. Samu Khadka

 Legal Method

 Legal method is Comprises with two words 'legal' and method.

 The word 'legal' is something relating to law.
 Legal Means something that is lawful.
 Ideologically it is prominent or legitimate.
 Something distinguishing, something moral, ethical, or
theological
 It is also described as conforming to rules or law
 Method on its part is a systematic procedure, technique,
arrangement, consistency, course, working plan, manners,
sequence or mode of inquiry employed by or proper to a
particular discipline.
 Method is a procedure established by habit or experiences
suited to accomplish a job in regular and predictable manner.
There might be different methods in doing the same job.
 Combine together “Legal + Method”, Simply means the way
of doing law.
 Legal methods are the basic rules that lawyer and legal
scholar used in the course of their respective profession.
 Legal method is the understanding and the use of procedure
and techniques in interpreting case law, status etc.
 It can also be defined as the study of the way law operates in
the society and how lawyer, judges and legislatures think and
do thing according to the law so as to achieve it objectives in
the society.
 It can also be defined as the study of the basic principles,
nature, sources, rule of law and the technique of
how law can be effectively applied for the benefit of the
individual and the society in general.
 IMPORTANCE OF LEGAL METHODS
The importance of the legal method are as follows:
 This course is the window/key/basic/foundation to see
the law and it is the beginning of law student’s
transformation into lawyers.
 Legal method is importance course to provide a ground
work on the fundamental concept of law.
 Legal method is aimed to provide basic knowledge to
both students with no previous knowledge of law and
those with minimal knowledge of law.
 Legal method is necessary to provide conceptual tool to
deal with the law and legal elements, how upcoming
lawyers will be exposed their future engagement with
the study of law.
 This course provides a thorough introduction about the law,
how to resolve legal problems in a manner recognized as
legitimate by the legal community.
 This course teaches the students to engage with legal texts,
to think critically about the law, and most importantly to
think, analyze and reason like a lawyer in a given problem.
 The course will familiarize students with theoretical debates
on the nature of law and will acquaint (explain) them with
their real world consequences means practical situation.
 The study of legal method lays a foundation for
understanding law as an independent discipline has its own
materials and methods. Although it is related to and
reflective of social processes, its development is unique in
several respects.
 Legal method is also helpful to the students on
understanding the logic of law and legal reasoning. 
 Legal methods when properly understood is a
creative process which provides a fascinating study in
reasoning and using language in order to achieve
practical results.
 Legal methods is a course, which exposes students to
the nature, language, technique and dynamics
of law in the early stage of their academic life in
order to lay a solid foundation for the proper
understanding and application of the various
substantive principle and rules which they will come
across as they advance in the studies.
 On the study of legal methods Prof Peter
Strauss from the Colombia law school in his
book, legal method: understanding cases and
statutes (2nd ed.) opines that legal method
education start with the orientation to the
material lawyer use and the institution they
deal with.
 Prof Strauss further said that along the study
of legal methods, the skills, beginning with the
use of cases, statutes and secondary material
in their decision are developed.
 The study of legal method lays a basic
premises upon which other law subjects are
built.
 Legal methods provide a lively introduction to
both the nature of the Nepalese legal system
and its sources and the techniques which
lawyers use when handling those sources.
 The processes of court application for hearing
are learned in the study of legal method,
although it may not go deep into it but it gives
knowledge of it.
 Legal methods as an introductory course for
students who are starting a law programme will
enable students appreciate the origin of law, the
various law theories or schools of thought, the
functions of law within the society and how to
reason, write and make decisions in line with the
law.
 The study of this course enables one to distinguish
the method of social control through the law.
 By the study of legal method one knows or
become aware that in a politically organized
society definitely have some forms of prescribed
legal system and social order.
 Approaches to Legal Method
Transcendental Legal Method
 Associated with the Natural law School.
 Transcendental idealism is a doctrine founded by
German philosopher Immanuel Kant in the 18th century.
 Is an attributes of Kant’s analysis of condition and limits of
knowledge.
 Transcendental Doctrine of Method is the determination of the
formal conditions of a complete system of pure reason.
 Based on available heuristics.
 Intuitive methods/based on immediate perception about the
things/situation.
 Method begins with the experiences moves to understanding and
then culminates in reflection and judgments.
 logical shift from the abstract conception.
 Positivist Legal Method
 It is adhere by nineteenth-century figures like John
Austin and Jeremy Bentham, as well as twentieth-
century thinkers like Hans Kelsen, H. L. A. Hart, and
Joseph Raz.
 All positivists share two central beliefs:
 First, that what counts as law in any particular society
is fundamentally a matter of social fact or convention
(“the social thesis”). (demonstrative Fact/objectivity)
 Second, that there is no necessary connection
between law and morality (“the separability thesis”).
 It refers that the law has to apply at the given fact. It
deals with the given fact situation. In the application of
law, positivist is supposed to be universal.
 Historical Legal Method
 Historical Method is about the classification,
selection and interpretation of past events
testimonies, personalities and figure.
 This theory strives to learn dead past or history
to resolve the problem encountered into the
society.
 This method holds the belief that law and legal
system are the outcome of the evolutionary
process. Law and legal system are found in the
process of evolution not made.
 Socio legal Method
 Interdisciplinary/Trans-disciplinary approach to law
and society.
 Law is inseparable from the interests, goals, and
understandings that deeply shape the social life.
 The very fact that law mirrors society. The central
concern of the law is to make law effective and
legitimate in functioning to maintain social order.
 Law reflects and reinforces prevailing social norms,
the bulk of behavior that conforms to these norms
without legal sanction allowing law to safeguard
resources and maintain efficacy of the law to society.
 Realist Legal Method
 According to them law is indeterminate.
 Realism asserts that there are real underlying causes,
structures, processes, and entities that give rise to the
observations. And it postulates that it is scientifically
appropriate to form theories and hypotheses about these
underlying causes in order to arrive at explanations of what
we observe.
 Realist has tried to make distinction between the “law in
books” and the “law in action,” with the idea that law is not
found primarily in statutes and judicial opinions, but rather
in the behavior of judges and other legal officials.
 look to answer the ‘How?’ , ‘Why?’ , ‘For whom?’ , ‘To what
extent?’ and ‘In what circumstances?
 Critical Legal Theory (CLS)
 Critical legal theory is a sometimes revolutionary movement
that challenges and overturns accepted norms and standards
in legal theory and practice.
 The law exists to support the interests of the party or class
that forms it and is merely a collection of beliefs and
prejudices that legitimize
 The basic idea of CLS is that the law is politics and it is not
neutral or value free.  the injustices of society.
 CLS seeks to fundamentally alter jurisprudence, exposing it
as not a rational system of accumulated wisdom but an
ideology that supports and makes possible an unjust political
system.
 CLS scholars attempt to debunk the law’s pretensions to
determinacy, neutrality, and objectivity.
 Feminist legal theory
 Feminist legal theory can be regarded as a significant
challenge to traditional and dominant legal doctrine along
with Critical Legal Studies.
 Feminism is an interdisciplinary approach to issues of equality
and equity based on gender, as understood through social
theories and political activism.
 Feminist legal theory seeks to explain ways in which the law
played a role in women's former subordinate status.
 Feminist legal theory is dedicated to changing women's status
through a reworking of the law and its approach to gender.
 Through liberation
Equality
 Emancipation
Equity
 See the things in Feminist Perspective
 Post-modern Legal Method
 Postmodernists insist that law, which grew out of
abstraction and the Enlightenment, reflects
biasness to certain group. 
 Post-modern Legal theory holds the belief that law
needs to be rethought and reformulated.
 They attack “the concepts of reason and objective
truth, condemning them as components of
domination.
 According to Postmodernist law in “reality is
socially constructed by the powerful in order to
perpetuate their own hegemony [
 Economic Approach to Law
 Ronald Coase , Guido Calabresi and Richard Posner has
contributed in this approach.  
 Economic analysis of law applies the tools of microeconomic
theory to the analysis of legal rules and institutions.
 Ronald Coase and Guido Calabresi had brought economic
thinking to the study of law.
 Posner made two claims: (I) Common law legal rules are, in
fact, efficient; and (II) Legal rules ought to be efficient.
 In both claims, “efficient” means maximization of the social
willingness-to-pay.
 In the course of the controversy, two other claims were
articulated (III) Legal processes select for efficient rules; and
(IV) individuals respond to legal rules economically. 
 Thank You
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