Law as a many-splendoured thing

Citation

Chynoweth, P. (2010), "Law as a many-splendoured thing", International Journal of Law in the Built Environment, Vol. 2 No. 1. https://doi.org/10.1108/ijlbe.2010.41102aaa.001

Law as a many-splendoured thing

Article Type: Editorial From: International Journal of Law in the Built Environment, Volume 2, Issue 1

The law is not the exclusive preserve of the legal profession. Policy makers and professionals in all fields are called upon to make, sometimes difficult, legal decisions as a routine part of their daily lives. Yet, as noted in the editorial to the first issue of this journal (Chynoweth, 2009), legal scholarship has traditionally seen itself as the servant of the legal profession – addressing those legal topics which provide its bread and butter, and neglecting others. The subjects of construction law, rent review, commercial arbitration and building control are often cited as examples of such neglect although readers will surely be aware of others within their own specialist fields.

But traditional legal scholarship has not simply inhabited the same terrain as the legal profession. It has also replicated its methods – focussing almost exclusively on the analysis of legal sources in order to divine the law in a particular context. Although sometimes unfairly disparaged, this approach (typically described as “black-letter” or “doctrinal” scholarship) has a unique role to play in providing internal insights into the operation of the law (see, for example Hart, 1961, pp. 97-107). But there are other approaches that can also help us to gain a more holistic understanding of the nature and operation of the law, and of its place – and potential for reform – within society. Although not an exhaustive list, the roles of socio-legal, comparative, interdisciplinary and theoretical legal scholarship were all explored in some detail within our first editorial, referred to above.

As its name suggests, this journal exists to promote the study of law as it relates to all aspects of the design, construction, management and use of the built environment – and to do so from a neutral jurisdictional perspective. In doing so it embraces a variety of methodological approaches, and seeks to encourage a greater methodological capability and self-awareness within legal scholarship than is presently the case (see, for example Cownie, 2004, p. 66; Chynoweth, 2008, p. 37).

The current issue is notable, in a law journal, for the emphasis within all the articles on empirical research, and for the variety of techniques employed. Michael Charles Brand and Thomas Uher use quantitative analysis of data collected from members of two trade associations to assess the performance of the Building and Construction Industry Security of Payment Act 1999 in New South Wales. Simon Hoffman, Peter K. Mackie and John Pritchard’s study of social housing management in the UK draws on unique empirical data from Shelter Cymru’s case file records to present some disturbing conclusions about the impact of current law and policy relating to the control of anti-social behaviour.

The next two articles continue the journal’s record of addressing the long-neglected subject of building control. João Branco Pedro, Frits Meijer and Henk Visscher utilise a questionnaire survey to develop an analytical framework of the relative roles of the private and public sectors across all 27 countries of the European Union. Jeroen van der Heijden’s comparative study of building control regimes in Australia and Canada then uses a case study approach, with data collected by semi-structured interviews, to document the impact of private sector involvement in building control regimes. Finally, Luke Bennett and Carolyn Gibbeson’s case study on occupiers’ liability risk-perception by the managers of English cemeteries also uses data from semi-structured interviews to provide new insights into the current operation of the relevant UK legislation.

The diversity of legal subject matter, and of national and comparative perspectives, within the articles, as well as the willingness of the authors to engage with a range of non-traditional legal methodology, all reflect the journal’s editorial aspirations. With apologies to Han Suyin (Han, 1952), Henry King, and Twentieth Century Fox for the tongue-in-cheek title of this editorial, I hope that readers will also continue to warm to its open-minded and multifaceted approach to the contextual study of law within the international built environment.

Paul Chynoweth