The nature of common law

Question 1

ommon law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear

Answer 1

what principles courts use–or should use–in establishing common law rules

Question 2

Doctrinal propositions

Answer 2

propositions that purport to state legal rules and are found in or derived from textual sources that are generally taken to express legal doctrine e.g. precedent, legislation, treaties

Question 3

social propositions

Answer 3

not accepted by judges in past cases BUT moral and policy opinions and views that enjoy widely accepted in society

Question 4

When are doctrinal propositions invoked and social propositions

Answer 4

DP invoked as legal rules, SP invoked as reasons for the legal rules

Question 5

First social function of court

Answer 5

resolve disputes based on society’s existing standards

• court’s reasoning is based on these societal existing standards

Question 6

Second social function of court

why?

Answer 6

enriching the supply of legal rules.

• limited time for Parliament to make laws, institution to respond to situation as they arise

Question 7

Einsenberg’s understanding of text-based theories of law and adjudication

in clear cases

Answer 7

1. clear/ regulated cases: where cases fall under DPs/legal rule, courts are under a legal duty to apply those rules regardless of justification; and

Question 8

First argument Einsenberg has against judges needing to exercise discretion in indeterminate/unregulated cases according to text-based theories of law and adjudication

Answer 8

By using their own discretion, this would undermine a social function of courts, to resolve disputes using existing social standards

Question 9

What if judges do not consult social standards in unregulated cases?

Answer 9

Judicial discretion aka judicial legislation undermines the rule of law and the separation of powers

The legitimacy of the judicial establishment of legal rules depends largly on reasoning that begins with existing legal and social standards rather than with those standards the court thinks best

Question 10

How should judges decide indeterminate/unregulated cases

Answer 10

Judges should refer to social propositions in addition to DPs. i.e. existing community standards about morality or justice

Question 11

How should clear/regulated cases be decided?

Answer 11

Usually rule is applied without its justification. SPs justify the rule

Question 12

Consider now (i) (ie the first thesis E associates with text-based theories):

The argument is that SPs are relevant even in these cases, even when there is no apparent ‘gap’ in the law. Why?

Answer 12

There is always a question as to whether a valid common law norm has continuing normative force, and this is what should (does?) guide judicial decisions about whether a rule should be consistently applied and extended or distinguished or, perhaps even, overruled

Question 13

Consider now (i) (ie the first thesis E associates with text-based theories):

The argument is that SPs are relevant even in these cases, even when there is no apparent ‘gap’ in the law. Why?

When a common law rule has a lot of force

Answer 13

it will continued to be applied e.g. Donohue Stevenson

Question 14

Consider now (i) (ie the first thesis E associates with text-based theories):

The argument is that SPs are relevant even in these cases, even when there is no apparent ‘gap’ in the law. Why?

When a common law rule little force

Answer 14

it will be overruled or distinguished

Question 15

what does not justify legal rules and what does

Answer 15

Legal rules are not justified by DPs i.e. court applies a rule because it is a legal rule. it is justified by SPs

Question 16

link between social propositions and DPs

Answer 16

Social propositions are used to justify doctrinal propositions and to support, when appropriate, changes to and departures from doctrinal propositions

Question 17

Einsenberg’s understanding of text-based theories of law and adjudication

in indeterminate/unregulated cases

Answer 17

• court uses moral skills to fill in the gap and make new law
• Court have legislative discretion to decide case based on what it thinks its best (Own morality and preferences)
• acting like a legislator

Question 18

Tenet of text based theories of law and adjudication

Answer 18

DPs has force and courts have duty to apply the rule b/c it was officially adopted w/o considering rule’s justification

Question 19

why does the legitimacy of the judicial establishment of legal rules therefore depends in large part on the employment of a process of reasoning that begins with existing legal and social standards rather than with those standards the court thinks best.

Answer 19

Courts not representative: judges of the same social and idealogical make up

Question 20

Another reason why SPs must be referred to

Answer 20

parties are aware or should know the social standards

Question 21

Positivists go wrong insofar as they pay no attention to

Answer 21

force of a rule, focusing only on validity.

Rule might be valid but have weak force

Question 22

When deciding a case, courts rarely consider whether a rule is

Answer 22

valid, it considers the force of the rule i.e. should it be applyed and extended or overturned

Question 23

When deciding if a rule has force, court will need to

Answer 23

take into account SPs

Question 24

when does a rule has no legal or moral force

Answer 24

When the rule is valid but drained of normativity

Question 25

DPs adopted in precedent may be

Answer 25

valid and binding in a weak and formal sense but have no substantive force

Question 26

A common law norm’s legal force depends principally on the answer to two questions

Answer 26

does the DP cohere with other accepted DPs? Is it congruent with applicable SPs?

Question 27

Is Eisenberg’s theory a positivist theory?

Answer 27

Eisenberg does not think judges should attempt to give any moral justification of the law. To the extent morality is relevant it is that to be found in SPs (akin to what Hart called positive morality, ie the moral standards generally accepted in the communit