The nature of common law Flashcards
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
what principles courts use–or should use–in establishing common law rules
Doctrinal propositions
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
social propositions
not accepted by judges in past cases BUT moral and policy opinions and views that enjoy widely accepted in society
When are doctrinal propositions invoked and social propositions
DP invoked as legal rules, SP invoked as reasons for the legal rules
First social function of court
resolve disputes based on society’s existing standards
- court’s reasoning is based on these societal existing standards
Second social function of court
why?
enriching the supply of legal rules.
- limited time for Parliament to make laws, institution to respond to situation as they arise
Einsenberg’s understanding of text-based theories of law and adjudication
in clear cases
- clear/ regulated cases: where cases fall under DPs/legal rule, courts are under a legal duty to apply those rules regardless of justification; and
First argument Einsenberg has against judges needing to exercise discretion in indeterminate/unregulated cases according to text-based theories of law and adjudication
By using their own discretion, this would undermine a social function of courts, to resolve disputes using existing social standards
What if judges do not consult social standards in unregulated cases?
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
How should judges decide indeterminate/unregulated cases
Judges should refer to social propositions in addition to DPs. i.e. existing community standards about morality or justice
How should clear/regulated cases be decided?
Usually rule is applied without its justification. SPs justify the rule
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?
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
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
it will continued to be applied e.g. Donohue Stevenson
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
it will be overruled or distinguished
what does not justify legal rules and what does
Legal rules are not justified by DPs i.e. court applies a rule because it is a legal rule. it is justified by SPs
link between social propositions and DPs
Social propositions are used to justify doctrinal propositions and to support, when appropriate, changes to and departures from doctrinal propositions
Einsenberg’s understanding of text-based theories of law and adjudication
in indeterminate/unregulated cases
- 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
Tenet of text based theories of law and adjudication
DPs has force and courts have duty to apply the rule b/c it was officially adopted w/o considering rule’s justification
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.
Courts not representative: judges of the same social and idealogical make up
Another reason why SPs must be referred to
parties are aware or should know the social standards
Positivists go wrong insofar as they pay no attention to
force of a rule, focusing only on validity.
Rule might be valid but have weak force
When deciding a case, courts rarely consider whether a rule is
valid, it considers the force of the rule i.e. should it be applyed and extended or overturned
When deciding if a rule has force, court will need to
take into account SPs
when does a rule has no legal or moral force
When the rule is valid but drained of normativity
DPs adopted in precedent may be
valid and binding in a weak and formal sense but have no substantive force
A common law norm’s legal force depends principally on the answer to two questions
does the DP cohere with other accepted DPs? Is it congruent with applicable SPs?
Is Eisenberg’s theory a positivist theory?
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
