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36 Cards in this Set
- Front
- Back
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Common Law Tradition Theorists |
Simpson (Common Law and Legal Theory) |
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Common Law Tradition Theory |
-Adjudication is a declaration of moral consensus of legal community - Law is discovered, not made - statutes are legit modification of common law - Requires continuity and cohesion |
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Simpson on Common Law Tradition |
Common law is set of codes of rules laid down and owe status as law is fact |
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Lord Devlin on Common Law Tradition |
Dynamic law making combats this theory as it is bad against social consensus ! |
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Formalist Theorist |
Bentham + Austin |
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Bentham on Formalism |
- rational (utilitarianism) law making consists of drafting of comprehensive legal codes that are issued so we know. - judge should not make law if no law covers it. - Would prevent judges from giving opinion. |
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Austin on Formalism |
- suggests judges are subordinate legislators, sovereign tacit approach - judges declare + apply pre-existing law |
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Problems with Formalism |
- search for illusive ratio, may make judges illegitimate |
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Rule Scepticist |
American realism such as Llewellyn Oliver Wendell Holmes 'Prophecies of what court will do are in fact law" |
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Rule Scepticism |
- examines content + function of law (Llewellyn's law jobs) - law in action, not books -rules judges claim to apply to facts - Judicial decisions are mostly predictable, but not by paper rules - Court offers discretion as both parties offer authorities -policies determine decisions |
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Dworkin's Books |
Taking Rights Seriously 1978 Law's Empire 1986 |
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Dworkin's Rivals |
-Better three previous models of adjudication - goes against positivism |
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Dworkin Aim |
- Cannot separate is from ought as law has rules and non-rule standards - Institutional morality makes law valid, not ROR. |
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Dworkin's Semantic Sting |
- ROR fails if lawyers disagree on validity - validity is more than ROR - existence of rule cannot be uncertain as acceptance + conforming behaviour - Judges try to be faithful to text of law, but subjective conception of justice means they slippin. |
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Dworkin's Hercules Analogy(hard case) |
- Judge constructs scheme of abstract + concrete principles, providing concrete justification for all precedent. - Controls law, not create (soft conventionalism) |
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Dworkin's Hard Cases |
They are most graphical form of judicial role - Principle reasoning use - only in liberal democracies |
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Dworkin's Right Answer Thesis |
Always a right answer: law is binary as legal language presupposes. - law as integrity - correct moral answer = correct legal answer |
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Dworkin's conventionalism |
law as function of social convention - conceives law as incomplete. |
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Positive claim of conventionalism(Dworkin) |
judges must respect established legal convention |
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Negative claim of conventionalism(Dworkin) |
-no law apart from decisions allowed |
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Dworkin on Conventionalism + Positivism |
Thinks they fail to provide either an account of law-making or defence of individual rights. |
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Dworkin's Law as Integrity |
- Best possible reconciliation of past decisions + account of justice - soft conventionalist approach - fit + moral evaluation are inseparable ! |
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Dworkin's Right Thesis |
- Norms are rules , principles(individual rights), policies (majoritarian) - Principles and rules differ. (1) rules are binary, principles are not conclusive. (2) valid rules cannot conflict, principles can. |
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Dworkin's Law as literature |
- law is interpretive so dependant on judge - needs insider prospective to understand |
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Dworkin's three stages of construction |
(1) pre-interpretation - gathering legal materials (2) interpretation - offering theory (3) post-interpretation - allowing theory for practice |
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Dworkin's Equality |
- equality of welfare - equality of resources (no one prefers others' resources) |
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Kramer on Dworkin |
- dworkin misunderstood nature/purpose of ROR as judges have common understanding of criteria needed |
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Leiter on Dworkin |
- Dworkin conflates what law is and how cases ought to be decided. |
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Bix on Dworkin |
sophisticated alternative to legal positivism |
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Hart on Dworkin |
Hercules analogy is a noble dream Principles are rules with penumbra - poorly expressed rules |
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Hoffmaster on Dworkin |
judges have strong discretion, Hercules is a myth;tyrant |
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Symmonds on Dworkin |
Conventionalism is too narrow |
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Raz on Dworkin |
Pre-interpretation requires ROR ! - Dworkin's 'Principles" refer to specific law. Principles look at multiple/ |
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Harris on Dworkin |
Interpretative stage differs between judges |
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Fish on Dworkin |
Interpretative stage is a social construct ! |
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Maccormick on Dworkin |
- Rules + principles could be the same. Principles don't exist, we pretend they do. |
