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Critical Analysis of an Article on Legal Scholarship by Robin West and Danielle Citron

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Being a general counsel with 13 years of experience, the writer decided to pursue the LLM program of University of Derby to refresh her understanding of the laws and to analyze the legal theories and principles in light of her experience. Since the writer’s specialization is in corporate and digital service industry, the LL. M modules such as Company Law, Intellectual Property Rights in the Digital Age, National & International Sale of Goods offer her a great opportunity to learn the legal principles on a more in-depth basis. Though the UK laws are not directly applicable to her current jurisdiction, ie Bangladesh, the judgmentsof English courts are strongly taken into consideration by the judges of the Supreme Court Division of Bangladesh as persuasive precedence. The writer realizes that in the ever-changing world, an LL. M degree in Commercial Laws from University of Derby, which is one of top 20 law school of UK will give the writer an edge over the other practitioners and help her to get a global perspective.

The writer’s introduction to the LL. M program started with Legal Scholarship Module which is a totally new way of learning for her. From the practice point of view, initially the writer was wondering about the reason behind legal scholarship and its value addition. However, the article ‘On Legal Scholarship’ helped her to understand why legal scholarship is so important for the study of law and evolution of the legal principle. The article mentions that without legal scholarship, existence or the depth of the fundamental legal theories becomes questionable. The writers of the article skillfully articulates ‘Without legal scholarship, the profession would lose its sense of law as either a science or an art, or of course alternately both. It would be a drab, cold, technocratic world. When we lose, or threaten, the scholarly mission, we lose the ‘learning’ at the legal profession’s core and hence we sacrifice professionalism’.

Legal Scholarship Module offered the writer to revisit the theories of law that she studied in undergraduate level and reflect the learnings witha matured vision. She appreciates that constant evolution of human history brought the digital age and along the way camethehuge complexities in social and economic life. However, the basic legal principles remainmore or less the same. Though the legal jurisprudence and the liberties of judges to apply his/her own judgment may vary from society to society, there are certain items that need universal acceptance, such as, climate change, child pornography etc. She appreciates that to formulate strategy to handle these sensitive matters the theory like natural law may come in handy to shape the understandingof the policy maker, judges etc. In such issues, natural law can provide universal standard of justice by identifying the ideal form of legitimacy for different peoples with different customs and backgrounds. The writer realizes that though each legal theory has come from a certain context, these theories can be applied in much wider context. For example, the writer considers Acquina’s theory of natural law which is inspired by the jurist’s close association with religious faith. However, the writer’s inquiry into the theory’s significance in secular world lead her to the scholarly article of Lloyd L. Weinreb, a professor of law in University of Harvard. Weinreb argues that the natural theory upholds the basic human rights and requires us to think beyond the ‘utilitarian calculation of good’ rather look for ‘humanly good’.

The writer ponders upon the legality of Wikileaks in light of natural law vs positivism. There are questions posed by the supporters of Wikileaks that even if Wikileaks encourages crime of stealing secret confidential information, Wikileak’s actions should be treated as legal to uphold moral requirement and to ensure justice. The writer notes how the law is being relied on and interpreted in real life, for eg, Julian Assange advocates ‘It’s very important to remember the law is not what, not simply what, powerful people would want others to believe it is’. She understands that in such tricky matters of law as well as political and social issues, if a lawyer can skillfully use jurisprudence to develop arguments and she will be able to present a convincing case whichever side she represents. The writer acknowledges that positivists’ theory of law brings clarity on what the law is instead of what it should be. Hart’s scientific approach to clarify the gaps in Command Theory and setting out of a clear definition of law helped the writer unclutter the obscurity in the law and focus on the reality. Phrase like ‘an unjust law does not count as a law’ may sound very exciting and revolutionary, the practical implication of law detached from any emotion can only be appreciated through the study of law and considering law as a social technology. The simple but solid direction given by positivists’ theory suggests that a law is law as long as it satisfies the qualifying criteria and hence it should be obeyed to ensure rationality in life. Furthermore, it is submitted that the discussion of morality cannot be devoid of individualistic perception.

The writer notes that this argument is not countered by Finnis’sexplanation of reasonable personas she finds the concept of reasonable person as a debatable matter. Hence, she realizes that any attempt to find an answer on legality from moral perspectivebecomes very complicated. She appreciates that how controversial it may be, a law promoting one child policy, which harshly tackles the danger of population explosion, can easily be understood through the positivist’s approach. Though the writer was fascinated by the command theory of law when she was a student of LL. B, now being a corporate lawyer, she sees that the theory gets blurred when it deals with civil nature of law, for which Hart criticized this theory. By applying the learnings of legal jurisprudence in these real life issues, the writer was able to truly appreciate the significance of these legal theories. In fact, Legal Scholarship Module allowed her the opportunity to review the legal theories and the principles from the critique’s point of view.

This Module introduced the writer to the masters’ level writing skills. The writer has not previously carried out any academic research assignment and hence this has been a new learning opportunity for her. Though the module is designed to prepare the students for the independent study and dissertation, she found the lessons very useful for the assignment writing of the other modules. By studying the Oxford University Standard for Citation of Legal Authorities, she learnt how to use proper referencing to make a write-up authoritative and persuasive. A careful usage of referencing style helps avoidance of plagiarism as well as shows respect to writers for their effort. The Module also taught the writer about the varieties of research traditions and different types of legal researches. Black-Letter Law tradition is useful to find a specific answer to a legal question as it purely focuses on the law. On the other hand, to prepare proposals for reform, the writer realizes that Law in Context tradition is more appropriate as it goes beyond mere study of law and analyses law’s impact in the society. The writer sees the potential of using this systematic approaches to legal research for studying the laws affecting her industry and being able to recommend reform proposals in a more convincing manner. The lessons on common law and civil law systems helped her to refresh her understanding of the different legal systems. This understanding is crucial to realizes how a law is formulated in one country and how it shall evolve. However, the writer realizes that it is not the nature of system that produces better political and economic result rather overall legal environment indicates how the justice system shall work. While working on the assignment for the Commercial Theories module, the writer worked on feminism and its impact on the economic empowerment of women. Though she studied feminism in her undergraduate course, she found the subject more enlightening as she could relate how the feminist scholarly writers and lawyers have used their legal scholarship skills to advocate feminist philosophy. This has actually inspired the writer to choose a topic for dissertation that will challenge herself to critically analyze legal provisions and see whether the law can address the need of society.

Appreciating the standard required from a master’s level research, the writer carefully considered several topics for research. However, the Legal Scholarship Module Handbook the Module Handbook) guided her to finally select one. She realized that availability of materials is a significant factor to make the dissertation authoritative and resourceful. Therefore, her selection was influenced byavailability of materials. She found the guidance on using different sources and the list of database as very convenient. The clear step by step guidance on using the online tools is also helpful. Due to scarcity of hardcopy materials on UK laws in Bangladesh, she mostly conducted her research for all module assignments online. Although the writer was trained in legal research during her Bar Vocation Course in UK, her research scope was mainlybased on hard copy research. Now with so many online resources available, she was able to refine her research skillsets. Besides using Westlaw, LexisNexis, HeinOnline, Jstor, she found innumerable resources online. By applying the search techniques mentioned in the Module Handbook, she refined her search results and were able to find out the most relevant materials. The writer plans to research on insider dealing and market abuse law. Since she has been working in corporate sector, she followed the share market issues, especially post-recession challenges, very closely. Though Bangladesh has not suffered much by the global recession, the local stock market haslost trust of investors due to several incidents of insider trading and market abuse. The legal and regulatory framework did not prove to be very effective in taking actions against these incidents. The writer intends to do an in-depth study of the UK law on this area and to propose recommendations to improve the local laws and regulations.

The guidance provided in the Module Handbook helped her to truly understand the requirement of humongous amount of time and study for successful completion of the dissertation. Therefore, she appreciates thenecessity to be well planned and organized during the independent study. Since the end result is going to be a scholarly work of the writer, she alsorealizes the need of being thorough, insightful and analytical to prepare a quality research paper. She found the guidance on the approaches to research asvery educational. Theillustration on wide varieties of approaches and their significance was informative as she could understand the differences by working on tasks mentioned in the Module Handbook. The lesson on approaches and methods helped the writer to accustom herself with the differences between Quantitative and Qualitative research and their individual strengths and weakness. She realizes that for her own research, she would be required to choose methods carefully to avoid being disconnected with the reality. It is very important to appreciate the versatile skillsets required for each method and apply them diligently to make the work objective. Since she plans to use qualitative approach, beside studying the guidance provided in the lecture materials and Module Handbook, she carried outonline research where she learnt about the different methods of triangulation to ensure validity of research outcome. She found the article of Lisa A. Guion especially useful as it clearly articulates the triangulation methods. Through writing different assignments under this LL. M program, the writer has been able shone her writing skill. Due to the strict word limit, she mastered writing in concise manner and now will be able to improve her professional writings as well. She noticed the difference of writing style for professional and academic purpose.

For preparation of research proposal and the dissertation, she appreciates the importance of structured writing. The Lecture materials and Module Handbook have helped the writer to articulate the exact criteria for preparing the research proposal and she believes that using these materials, she will be able to prepare a thorough dissertation. The writer understands the ethical consideration involved in the research and course-works. Sherecognizes the importance of ensuring right ethical standard in applying the methods, otherwise this may jeopardizethe work as well as the reputation of the researcher. Recording of the resources and findings appropriately is very important for accurate referencing and systematic study.

Careful report writing is also crucial to ensure avoidance of plagiarism. In conclusion, it is submitted that the legal scholarship module has helped the writer to understand the complexity and the standard of master’s level course. Though this is an academic course, many learnings and skills can be used by the writer for her own professional purposes. Moreover, the blended approach of module delivery has matured the writer for her independent study. She believes that this module has appropriately prepared her to carry out the research and produce scholarly paper.

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