Basic concepts to studying law

This is a list of indispensable precursor concepts for anyone interested in studying law. They are items that, if discussed in first year, will make the Learning experience more fruitful. Of course, students need not master the intricacies of these enormously broad and significant topics right at the outset, but a basic understanding of them is a necessity in many law schools:

• the primary sources of law and how they relate to each other: Constitutions , statutes, cases, regulations (As an international lawyer, I would add Treaties , but I’m not sure how relevant they are to a beginner law student.)
• the Common law method: evolution of the law through cases, analogical reasoning, the role of policy arguments, how these contrast with the civil law method
• the nature and function of precedent: binding and persuasive authority, rationes decidendi and obiter dicta, how courts make use of prior cases
• court hierarchies: how trial, intermediate appellate, and supreme courts relate to each other and their relative functions, the structure of the court system in this country (including, in federal states, the relationship between federal and provincial/state courts)
• the relationship between law and equity: their historical separation and later merger, the availability and relative strengths and weaknesses of legal and equitable remedies
• the general divisions of public and private law: on the public side, criminal, administrative, constitutional, and public international law; on the private side, contract, tort, property, and arguably restitution
• substance and procedure: the blurry line between the two, the way they affect each other

The above works in United States law schools. There is an important difference between American and European legal systems as regards issues such as the sources of law or public/private distinction. In Europe the first thing the student is going to learn is the doctrine of the sources of law and their hierarchical relations (the constitution being the highest, ordinary statutes next, then Government Bills followed by precedents and so on, each with different level of binding force). Thee is not always such a clear, hierarchical order exists in American law. The public/private distinction, too, is largely absent.

In the civil law tradition, therefore, it shoud be added a few more items, namely, a reference to the formalist account of law and an explanation of where civil codes come from – that is, an explanation of why the French revolutionaries came out with a Civil and Commercial Code and how that had a massive impact on how we civilian lawyers understand legal reasoning and legal Education . This has been, in my view, problematic because civilian lawyers and judges usually think that our codes are “the dogma”, that judges should not make law because that would be against the dogma and that lawyers should only study positive law – because, given the existence of the dogma, substantive discussions are out place. Of course, this is just a simplification because legal practice much more complex. But the deference to the dogma is still a dominant feauture in the civil law tradition.

Thus, it is important that students understand that Codes are to be read in terms of a further constititutional and international order which, in fact, is the background againts which civil codes are to be understood.

A a bit of moral theory may be helpful aswell. In special, how law could be understood in utilitarian and deontological terms and how different legal institutions reflect a concern for rights or general welfare. This framework is useful in explaining and understanding the tensions present within different legal institutions.

In the civil law tradition, it is usually the case that students come directly from high school. This makes it even more difficlt to take knowledge for granted because many more things have to be explained.

Effective legal study is not primarily about mastering the content of specific legal rules. This
is in spite of the fact that your law degree consists of numerous courses, which, by their title
and description, look as though they are about the legal rules that govern particular areas of
society. In fact, the content of the particular applicable legal rules changes all the time. The
study of law in a university is therefore more about the overall architecture of the law and the
dynamics of the way in which it operates and is applied.

Accordingly, the most important things the law studet needs to equip herself for the study of the law, and for its practice (however, he or she may choose to use his or her law degree), are the basic specialist skills of legal research, legal writing, legal reasoning and analysis, and advocacy (or, the art of argument). They are the key to successful study and good results at any law school. They are also the most enduring things that the law student will take away with him or with her when the student leaves the law school. They are unique to the study of law. Success in other subjects does not necessarily prepare the student for what you need to master the study of law.

To this end, it is important that the student begins the process of learning some essential skills, such as:

• Legal Research;
• Legal Writing;
• Legal Reasoning; and
• Advocacy.

The law students develops these skills primarily through practice in:

• Using the Law Library as their laboratory to enable them to find the authoritative
  legal sources relevant to their problems (which will be a combination of print and
  electronic sources);
• Writing with the clarity and precision required of a lawyer (and correctly citing the
  authorities upon which they rely);
• Analysing a legal problem through assessment of opposing arguments; and
• Advancing legal arguments before a tribunal – both in written and oral form.

At the conclusion of the first law courses, law students should be able to:

• Understand and apply the basic constituent elements of effective analysis of a legal
  problem, using a structured methodology of identification of the issues and use of
  legal argumentation to resolve them;
• Competently and independently identify the process needed to research the law
  relating to the relevant issues and carry out that process, using both paper and
  electronic research tools;
• Learn to record and expound the results of your research and analysis in clear, legal
  form, practising in particular the core task of writing an effective legal opinion (which
  is written, and supported by citation, in correct legal style)- identifying the specific
  issues, analysing the law applicable to those issues, and evaluating the application of
  the law to the facts of the case so as to be able to reach a reasoned conclusion; and
• Present a correct and effective legal argument (in written and oral form) before a
  moot court.

Author: international

Mentioned in these Entries

Bills, Common law, Constitutions, Education, Learning, Treaties, country.