Methodological Awareness and Critical Theories

Our theoretical viewpoint or perspective defines the boundaries of our research. It determines the questions we ask, facts we deem relevant, authorities we cite, and arguments we find convincing. Just like the place we stand in the physical world affects what we see, and what we can’t see, all viewpoints contain advantages and blind-spots. Being aware of them from the start is important.

Most law school courses use and teach legal positivism as the default theory with which to answer ‘legal’ questions. Typical positivist questions may include: What laws apply to this dispute? How have judges applied these laws in similar situations? What facts favor the plaintiff or defendant? The questions might have a normative character – whether cases were decided correctly – or may invoke conflict between legal positivism and natural law – the idea that unwritten rules or moral values also impact legal decisions. But the focus remains internal – looking at what lawyers, judges and legal scholars – think, decide or do.

Other research perspectives may take an external approach, looking at how laws impact non-legal actors or how societal circumstances may impact the creation or application of law. Some of these external viewpoints include ‘law and social science’ perspectives, which use theories and methods from social science disciplines to answer questions about law and society. Examples include ‘Law and Economics’ which uses concepts like efficiency or cost-benefit analysis to assess legal questions, or ‘Law and Sociology’ which often use empirical legal methods to assess the impact of law on different groups of people.

Finally, critical legal perspectives tend to critique key assumptions of legal positivism, including legitimacy, objectivity and neutrality, in light of group power in social and historical context. Examples include Queer or Feminist Legal theories, Critical Race Theory (CRT), Marxist and Postcolonial theories and Third World Approaches to International Law (TWAIL).

No one of these theories is better or worse, but some are better suited to answering certain questions than others. Research may also combine research perspectives or put them in dialogue with each other. The readings below explain more about individual theories and their key elements.


  • Sokhi-Bulley, B. (2016). Learning law differently: the importance of theory and methodology. In: Academic learning in law: theoretical positions, teaching experiments and learning experiences. Edward Elgar Publishing Limited, Cheltenham.

    Methodological awareness and what it means to take a theoretical approach.

  • Sokhi-Bulley, B. (2013). Alternative Methodologies: Learning Critique as a Skill. Recht en Methode in onderzoek en onderwijs 3, 6–23.

    Methodological awareness and what it means to take a theoretical approach.

  • Cryer, R. et al (2011) Research methodologies in EU and international law. Hart Publishing.

    Methodological awareness and what it means to take a theoretical approach.

  • Blocq, D., Van der Woude, M. (2018). Making Sense of the Law and Society Movement. Erasmus Law Review 11, 134–141.

    Law and society

  • Natarajan, U., Reynolds, J., Bhatia, A. & Xavier, S. (2016). Introduction: TWAIL - on praxis and the intellectual, Third World Quarterly, 37:11, 1946-1956.

    Third World Approaches to International Law.

  • Crenshaw, K., Gotanda, N., Peller, G., Thomas, K. (Eds.), (1995) Critical race theory: the key writings that formed the movement. New Press.

    Critical theories.

  • Christodoulidis, E., Dukes, R., & Goldoni, M. (2019). Research handbook on critical legal theory. Edward Elgar Publishing

    Critical Theories.

  • Möschel, M. (2014). Law, lawyers and race: critical race theory from the United States to Europe.

    Critical Theories.