Morphological analysis of legal ideology: locating interpretive divergence
| Published date | 09 April 2018 |
| DOI | https://doi.org/10.1108/JPPEL-12-2017-0041 |
| Pages | 5-16 |
| Date | 09 April 2018 |
| Author | Emma Lees,Edward Shepherd |
| Subject Matter | Property management & built environment,Building & construction,Building & construction law,Real estate & property,Property law |
Morphological analysis
of legal ideology: locating
interpretive divergence
Emma Lees
Department of Land Economy, University of Cambridge, Cambridge, UK, and
Edward Shepherd
Henley Business School, University of Reading, Reading, UK
Abstract
Purpose –The purpose of this paper is to present a “manifesto”exploring a methodological approachto
legal analysis,relying upon a morphological understandingof ideology.
Design/methodology/approach –The authors explore ideology within law and legal culture. They
examine one such ideology –rule of law –and consider how this can shapejudicial decision-making. They
suggesttechniques by which such influences can be identified.
Findings –The authors 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 formsan important part, but is distinguishable from the wider notion of legal
culture. Considering ideologyin law as a sub-system of legal culture can therefore be fruitful in providing a
rich understanding of interpretivedisagreements 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 constitutean internal ideology of law and it can be analysed how the concepts are de-contested
in individual decisions.Finally, understanding this can help in the analysis of judgmentsin areas with high
levels of administrative discretionand political contestation, such as planning and environmental law, as it
helps us to understandhow any particular judge sees the role of the court inits wider political context.
Originality/value –The originality of the authors’approach lies in the drawing together of
methodologicaltechniques and understandings of ideologyin, and in relation to, law.
Keywords Methodology, Ideology, Rule of law, Freeden, Legal culture, Planning law
Paper type Conceptual paper
1. Introduction
This paper outlines a methodology for locating and explaining disagreement among the
judiciary as to the proper interpretation of legal norms, particularly in a politicised and
administratively flexible contextsuch as UK environmental or planning law. In so-doing, it
explores the role of ideology in law, theorisedas a ubiquitous form of political thinking and a
part of the broader concept of legal culture,and how ideology can shape and mould judicial
decision-making in a hitherto underexplored way. The discussion focuses on rule of law as
but one form of legal ideology. Givenword constraint, we envisage this article in the form of
a“manifesto”which seeksto open potential avenues of research and stimulate debate on the
methodologies used in relation to the analysis of environmental and planning law. We see
this as appropriatein the context of the re-launch of this journal.
The authors thank Dr Ole W. Pedersen for comments on an earlier draft of this article and for
bringing the importance of contingency to our attention. All errors of course remain the authors’.
Analysis of
legal ideology
5
Received22 December 2017
Revised31 January 2018
Accepted31 January 2018
Journalof Property, Planning and
EnvironmentalLaw
Vol.10 No. 1, 2018
pp. 5-16
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-12-2017-0041
The current issue and full text archive of this journal is available on Emerald Insight at:
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