Critical Analysis of Legal Processes

Students studying legal philosophy are sometimes asked to analyse or criticise legal processes. Legal processes can include law-making or legal decision-making; legal processes take place nationally, internationally, and across jurisdictions. It can be difficult to know what focus to adopt in analysing complex legal activities. The following suggests some lines of enquiry that can be followed in analysing legal processes.

What element of the process do you want to analyse? Where?

Who?

What and Why?

Who is involved in this legal process?

What is the process and why has it been used?

Where is the process taking place?

Natural persons can create legal relationships through private law and are governed by public law. The status and rights of the individual person will depend upon the state of which they are citizen, but they will all have basic international legal rights. (See Chapter 2)

States have legal personhood and are regulated by their own system (public international law). International law is public regulation of states, but it often resembles a contract law because of the ability of states to dictate its content. (See Chapter 4)

Legal persons can be any body of individuals recognised as, collectively, having legal personality and legal standing. Including non-governmental organisations and corporate entities, legal persons can be governed by public or private law. (See Chapter 2)

International institutions(including some regional institutions like the EU) decide on the interpretation and application of treaty law. International decisions may have- direct or indirect - national implications. (See Chapter 7)

Domestic institutions (national courts and national governmental bodies) both hold power and can delegate power to regional bodies. (See Chapter 1)

Transnational processes encompass those relationships and transactions that are neither clearly national nor international. Many commercial and contractual relationships now defy easy geographical classification (See Chapter 7)

Courts are established institutions applying public rules. Courts therefore provide (relatively) predictable remedies based on established principles of fairness and equity. (See Chapter 1)

Arbitration and Alternative Dispute Resolution Processes reduce costs for the parties and allow quick solutions to local problems. Such processes give regard to the particularity the needs and interests of the parties. (See Chapter 1)

Legislatures create statutory law and refinement their own statutory law; they can also ratify (incorporate) international law. Governance by statutory law provides public guidance on a range of different activities (See Chapter 5)