1 option
The judicial process : realism, pragmatism, practical reasoning, and principles / E.W. Thomas.
- Format:
- Book
- Author/Creator:
- Thomas, E. W. (Edmund Walter), 1934- author.
- Language:
- English
- Subjects (All):
- Judicial process.
- Physical Description:
- 1 online resource (xxvi, 414 pages) : digital, PDF file(s)
- Place of Publication:
- Cambridge : Cambridge University Press, 2005.
- System Details:
- text file
- Summary:
- In the absence of a sound conception of the judicial role, judges at present can be said to be 'muddling along'. They disown the declaratory theory of law but continue to behave and think as if it had not been discredited. Much judicial reasoning still exhibits an unquestioning acceptance of positivism and a 'rulish' predisposition. Formalistic thinking continues to exert a perverse influence on the legal process. This 2005 book dismantles these outdated theories and seeks to bridge the gap between legal theory and judicial practice. The author propounds a coherent and comprehensive judicial methodology for modern times. Founded on the truism that the law exists to serve society, and adopting the twin criteria of justice and contemporaneity with the times, a judicial methodology is developed which is realistic and pragmatic and which embraces a revised conception of practical reasoning, including in that conception a critical role for legal principles.
- Contents:
- Practical skills and legal theory 1
- Judges make law - endlessly 3
- And judges also make policy - regularly 4
- The interpretative approach is wanting 6
- Judges and legal theory 7
- Theorists and legal practice 9
- Bridging the divide 12
- A precis - more or less 14
- 2 Muddling along 24
- Practical muddling along 24
- The declaratory theory of law 25
- Positivism 27
- Die Meistersinger von Nurnberg 27
- Positivism and its stubborn survival 29
- Aspirational positivism 34
- Romantic positivism 37
- Natural law 42
- Superstition and/or speculation 42
- Natural law and human rights jurisprudence 45
- Natural law and parliamentary supremacy 49
- 3 The 'curse' of formalism 54
- Timur, the barbarian 54
- The lingering legacy of formalism 55
- Formalism will not stay dead 56
- The formalism of 'presumptive positivism' 58
- A short portrait of the formalist judge 62
- A case study: Sevcon Ltd v Lucas CAB Ltd 66
- 4 Legal fundamentalism 75
- Legal fundamentalism 75
- The democratic legitimacy of the judiciary 77
- Judicial independence and impartiality 77
- The will of the people 79
- The judge's values! 84
- 'Judicial activism' 88
- The parable of the activist judge 88
- An ersatz concept 91
- And Lord Denning? 94
- Conservative activism 99
- A 'political' process! 101
- 5 The idolatry of certainty 108
- A conversation in chambers 108
- An uncertain world 115
- The law is inherently uncertain 115
- Acknowledged causes of uncertainty 122
- The uncertainty of the facts 122
- The uncertainty in defining the legal dispute 123
- The uncertainty of the ratio 123
- The uncertainty of exceptions 124
- The uncertainty as to what other jurisdictions are up to 124
- The uncertainty arising from an abundance of riches 125
- Some underlying causes of uncertainty 125
- The imprecision of language 125
- The need for finality in judicial adjudication 126
- The 'status' of justice 128
- Two critical consequences 130
- Certainty and precedent 131
- Certainty as a relevant consideration 135
- 6 The piety of precedent 139
- A foolish consistency ... 139
- The doctrine of precedent 141
- The perceived value of precedent unmasked 144
- Stability 145
- Reliance 148
- Legitimacy 150
- Judicial craftsmanship and so on 151
- Efficiency 153
- 'Non-binding' precedents? 153
- Persuasive precedents 154
- 'Famous dicta' 154
- Relevance and justice 155
- The 'attitude of mind' 157
- 7 The foibles of precedent - a case study 164
- Lewis v Attorney-General of Jamaica 164
- An assessment, a rebuke and a note of optimism 173
- Postscript; don't speak too soon! 176
- 8 There is no impersonal law 184
- A shout from the rooftops 184
- An internal logic and coherence? 186
- The doyen - Ronald Dworkin 188
- Dworkin's implausible distinction betweenprinciples and rules 192
- Dworkin's implausible distinction between principles and policy 195
- Dworkin's implausible rejection of judicial discretion 202
- Dworkin's implausible justification for precedent 205
- Trigwell's case: Hercules J confronts Athena J 208
- 9 So, what is the law? 217
- 'The law' is essentially a process 217
- Is 'the law' what the courts ultimately decide? 219
- A more fluid concept 222
- The 'as is' and 'ought to be' distinction dissimulated 224
- The rule of law in the scheme of things 225
- Rechtsstaat or justizstaat? 231
- The judicial oath 238
- 10 The constraints on the judiciary 241
- The significance of judicial constraints 241
- The external constraints 243
- Internalised constraints 245
- Some structural constraints 249
- A legitimate role for certainty 250
- A justifiable role for precedent 251
- 'Leave it to Parliament' 254
- Minimalism 265
- Vanquishing general discretions 266
- 11 Towards a new judicial methodology 270
- A methodology for the twenty-first century 270
- Justice and relevance 272
- The reality of justice 272
- But is justice 'knowable'? 281
- The imperative to be relevant 287
- A case study: Fletcher Challenge Energy v ECNZ Ltd 289
- 12 Of realism and pragmatism 302
- Hard realism 302
- A new realism 302
- Realism in practice 305
- Determined pragmatism 307
- Legal pragmatism 307
- Pragmatism in practice 312
- 13 Of ... practical reasoning and principles 316
- Practical reasoning 316
- The theory of practical reasoning 316
- Practical, practical reasoning 320
- The all-important facts 321
- The legal issue 327
- The initial premise 329
- A community of considerations 329
- Community values 331
- Principles to the forefront 334
- Common sense 334
- A summary 338
- Principles and reason 339
- Legal principles 343
- 14 Taking law seriously 349
- So, will there be a difference? 349
- Making overt that which is covert 349
- The flow of the river ... 350
- The main differences 351
- Taking law seriously 354
- 15 A theory of ameliorative justice 358
- Our Lady of Justice ... why the sword? 358
- The precept of non-exploitation 360
- The ground is cleared - a reconciliation 364
- The ground is further cleared - justice? 367
- Liberal individualism 371
- Equity 375
- The common law 379
- Contract 382
- Tort 386
- Public and administrative law 387
- ... of Marxism and Critical Legal Studies 388
- Justice and fairness 392.
- Notes:
- Title from publisher's bibliographic system (viewed on 05 Oct 2015).
- Other Format:
- Print version:
- ISBN:
- 9780511493768
- Access Restriction:
- Restricted for use by site license.
The Penn Libraries is committed to describing library materials using current, accurate, and responsible language. If you discover outdated or inaccurate language, please fill out this feedback form to report it and suggest alternative language.