Essay about Review of Law in Context

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NOT FOR DISTRIBUTION: USE ONLY IN COMPLIANCE WITH COPYRIGHT: DAVID RISSTROM

AN INTERPRETATION OF LAW IN CONTEXT

Bottomley, S., Gunningham, N. and Parker, S., 1991, Law in Context, The Federation Press, Leichhardt.

{ } = additional material from lectures. ( ) = my comments. (See ‘x’) refers to book page number.

A short (somewhat boring) message from the summary executioner before you dive in; These notes are an interpretation of the book Law in Context and the lectures given as part of the 1991 Course. They are not a satisfactory substitution for reading the text. You are only likely to get the maximum value out of this summary by reading it in conjunction with the text. The question of ‘the law in whose
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I am quite happy for it to be photocopied during 1992 for use within the university as long as it is not a breach of the original text’s copyright: Dave

No man person is an island.
John Donne (revisited)
†††††††

PART A - LAW IN A LIBERAL CONTEXT

2 CHAPTER 1: INTRODUCTION

Mason CJ (1991): [T]o treat the law as a discrete set of principles in a vacuum and without a context is to misconceive its dynamic and ubiquitous nature and, more importantly, to undervalue or even overlook the manner in which it contributes to the fundamental fabric of modern society.

# Law cannot be treated as a discrete set of principles without a context. # Up to 1920’s the dominant unchallenged framework was legal Formalism, in which there was a “logic of the system.” (Leff) Formalism = formally rational legal reasoning.
3 # After WW1, legal formalism was challenged by Realists who were interested in “the way law actually functioned in society.” (For a good two-page discussion of Legal Realism See Barry’s introduction to Modern Political Theory, 44 - 45) # Legal Realists said: ° legal rules inevitably have social consequences. ° law (and judges) cannot be objective. ° formal legal reasoning can never be conclusive (ie, justification is outside the law). ° law must be studied “as it works in practice by making use of the social sciences”. Legal Realists didn’t provide a systematic critique of USA legal

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