Anna Kawalek

• BA (hons) GDL Ph.D
• Senior Lecturer at Leeds Beckett University

The age old question about theory - the I have put forward a proposition below (which I dont neccessarily agree with) - hope it generates a lively discussion and I am interested to hear from you on this facinating topic ;)

Dr Anna Kawalek

When we talk about theory in academia, any scholarly body has two main (interconnected) theoretical strands. To understand the core academic positions of any legal (or non-legal) school is to consider both aspects. The first is methodology (comprising primarily of ontological and epistemological assumptions about the law, latterly engaging relevant methods of discovering the law). This is general research philosophy applied more precisely to the subject of law (we might discuss the same paradigms in different fields, for instance, maths, physics, or sociology). This branch considers the mechanics behind making knowledge claims pertaining to whatlaw is (ontology), how we can know law (epistemology), and how these theoretical understandings create channels into relevant methods to construct knowledge. For further information, Stobbs provides an accessible overview of the academic terminology ontology, epistemology, methodology, and methods.[1]His articulation is particularly useful because it demonstrates the link between these key pillars of knowledge acquisition (ontology, epistemology, methods), each layer creating a building block for the next, and together creating rigorous methodology.[2]

The second strand concerns substantive, prescriptive, or content-drive claims about the law or what the law ought to do.[3] The focus is subject matter, content, and causal links that discusses the law, practice, and the courts. Generating substantive knowledge claims rest on a (implicitly or explicitly acknowledged) series of complementary methodological assumptions from the first strand. This makes both strands interconnected. For example, commitment to a subjectivist ontology and sociological epistemology would project a substantive theory of psycho-social variety; it is unlikely (and potentially impossible) for this type of methodology to generate a substantive claim of a natural science genre. In the alternative, an objectivist ontology and empiricist epistemology may generate substantive theory of biomedical variety. This means that every juncture of a methodological process opens up a prism of potential substantive claims, whilst closing off others. Usually, when comparing any two schools, the bigger the adjustment to methodological assumptions (what reality is and how we know it), the greater the difference in substantive claim (seeking to explain and discuss these realities). Taken together, if a methodological underpinning offers a (limited) spectrum of substantive claims, this means that literature ascribing to a similar series of methodological assumptions are likely to provoke similar genres of substantive theory. Alternatively, literature ascribing to different methodologies but examining the same phenomenon will project opposing substantive theories about that given phenomenon because they make very different theoretical commitments about the world.

In law, this point is exemplified by legal realism and formalism, two schools that are typically understood as scholarly opponents. Their ontological and epistemological beliefs mean that the realists and the formalists each respectively construct knowledge of the law and legal processes in a very different way to one-another, mobilising a very different sets of methodological benchmarks. However, at the same time, they examine similar substantive content – namely, the courts, advocacy, and juristic methods,[4] and how political standards influence adjudication.[5] The formalist position takes a normatively-infused political angle; it considers judicial decisions and how judges do and ought to decide cases, seeking to persuade practitioners to justify preferences to objective standards.[6] However, the realists reject ought questions and look at social facts and effects as they manifest in reality.[7] At risk of venturing too far into the terrains of their respective substantive claims, the key point is that they examine similar phenomena using very different methodologies. As a result, despite examining the same “thing”, they derive substantive conclusions on opposite ends of the spectrum. This serves to highlight the significance of methodological assumptions for generating substantive claims.

Are there in fact two stands when we generate theory? Discuss.

[1] Nigel Stobbs, ‘therapeutic jurisprudence as theoretical and applied research’ (chapter 3) in Stobbs, et al. [n 14] [48].

[2] Ibid.

[3] Edward L. Rubin, The Concept of Law and the New Public Law Scholarship, 89 Mich. L. Rev. 792 (1991) Available at: https://repository.law.umich.edu/mlr/vol89/iss4/3

[4] Karl N Llewellyn, ‘The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method.’ The Yale Law Journal, vol. 49, no. 8, 1940, pp. 1355–400. JSTOR, https://doi.org/10.2307/792545. Accessed 29 Jun. 2022.

[5] Jeremy Telman, ‘International legal positivism and legal realism’, in Jörg Kammerhofer & Jean D'Aspremont (Eds.) International Legal Positivism in a Post-Modern World (pp. 241-263) (Cambridge: Cambridge University Press, 2014). doi:10.1017/CBO9781139094245.012

[6] Ibid; Michael Freeman, and Dennis Lloyd of Hampstead. 2001. Lloyd's introduction to jurisprudence (chapter 9). (London: Sweet & Maxwell, 2001).

[7] Oliver Jütersonke, ‘Realist Approaches to International Law’ in Anne Orford and Florian Hoffmann The Oxford Handbook of the Theory of International Law (Oxford, Oxford University Press, 2016) DOI: 10.1093/law/9780198701958.003.0017

HI All

I wanted to ask a question about Kruskal Wallis non-parametric test with added post-hoc pairwise comparisons. I am testing 10 groups on three dependent variables (so there will be many comparisons)!

I have found a statistically significant difference between at least one group and each of the DVs. However, because there are so many comparisons, they have all clumped together on SPSS and so I am struggling to interpret them. See image. I don't seem to be able to stretch it out.

Please let me know if you can help me out.

Many thanks

Anna Kawalek

😂