Theories of adjudication Flashcards
Legal formalism
law = a closed and gapless system (like Bentham wanted)
American Realism
law is not made according to rules. Moral decision of judges are disguised as logic
Scandinavian realism
focussed on how law changes behaviour
What was Oliver Wendell Holmes
A rule sceptic
What did Oliver Wendell Holmes think about the law
Evolutionary - sources in society - already exists before its ruled on
What did Oliver Wendell Hoilmes think about statutes
They’re not law until they’re ruled on in court
What does a lawyer do according to Wendell Holmes
Predicts the decision a court will make. Law is a prediction of what the court will decide.
Why was Oliver Wendell Holmes so hung up about kaw being the decisions of judges
Because he was a judge and had a messiah complex
Why did Wendell Holmes think the law is never fully logical
Because of evolution - there’s a lag between the reality and its reflection by the courts.
What did Wendell Holmes say about the changing content of established legal doctrines
Result of post-hoc rationalisation - you take a doctrine and make it fit current circumstances.
Who’s was the bad man thesis
Oliver Wendell Holmes
Where does the bad man thesis fall down
Good people want to know how to order their affairs, business, wills, charity
What did Wendell Holmes propose
That judges should openly legislate with regard to social policy
Problems with Wendell Holmes theory technically
Not very disciplined at separating is from ought
Problems with Wendell Holmes’ theory substantively
Lgeal certainty
What was Karl Llewellyn
Rule sceptic
What did Llewellyn think about the uncertainty of law
It’s a good thing - judges have (and shoudl have) discretion.
What did Llewellyn propose
Use of the “grand style”: judges test decisions against wisdom to align law with justice
What’s the problem with the grand style?
Not all judges are good. Judges only have a certain flavour of justice. Judges have a shared concept of morality - all from same background.
What was Jerome Frank
A fact sceptic
What was Jerome Frank’s theory
Judges and juries are prejudiced, they break down the distinction between facts and rules to obtain the result they want
What did Jerome Frank call juries
Hopelessly incompetent fact-finders (they’re not specialised and they’re not accountable)
Example of judges deciding the desired result and working back (fact scepticism)
Drunk driving - difference in sanctions across states reflected in difference in charge levelled.
What was the underlying concern of Dworkin’s work
What justifies the use of force by a state against its citizens
What’s Dworkin’s definition of law
Rights and responsibilities of citizens flowing from past political decisions
When does Dworkin think coercion is justified
Only to enforce rights and responsibilities. Dependent on like treatment in like situations
What does Dworkin think about the certainty of law
All legal questions have a correct or incorret answer. There is no question the law cannot answer
What does Dworkin think the law is made up of
Rules (static, known) and principles (found by applying reason to the law as a whole)
When, according to Dworkin, is a principle legal
When it forms part of the soundest theory of law
What is the soundest theory of law in anglo-american systems
Law as integrity: internal consistency
How does Hercules interpret the law
- Pre interpretive: identify the relevant law (past decisions, statute), 2. Interpretive, look for an explanation that fits that law the best and is most appealing (with reference to values) 3. post interpretive, revise conception of what the rules stand for in order to reflect the best theory available.
How does Dworkin see the collaboration of judges on the law as working
Like a chain novel - retain consistency, make it the best it can be
What’s a case that illustrates the use of principles in decision making
Riggs v Palmer - Will left money to murderer
Problems with Dworkin’s thoughts on coercion
The state’s coercion actrually has v little to do with day to day life
What’s the problem with Riggs v Palmer
More easily explainable in Wendell Holmes’ terms -a principle conflicted with a rule and the principle won.
Problem with law as integrity?
Law is just too disorderly to be reconciled to an internally coherent system - different principles are relevant in different branches of the law
Fit?
Got to be really lax to accommodate
Appeal?
Based on subjective values - so really there’s no right answer
Hart on adjudication
Open textured language of law leads to penumbra of uncertainty. Judges use their discretion - judges make law in hard cases.
Alexander & Kress on legal principle
The case for the existence of legal principles fails miserably
What case did Dworkin use to illustrate the difference between policy and principles
Spartan Steel
Why does Dworkin think that judges should not be able to consider policy
Because they’re not elected
Another reason that judges shouldn’t be able to make law
They’re not vindicating a right, they’re punishing something that wasn’t established as wrong until the time of judgement (Hercules’ prospectivity)
What does Dworkin’s theory seem to suggest (as a criticism)
That IF there is consistency in the principles divined by judges using the fit and justification method and IF this can be explained by their social values as a result of their background THEN the law of white middle class men is the absolute law. Fit and justification will just perpetuate this.
What does Dworkin think about the value / funtion of legal theory
Lgeal theory, if it is to be a worthwhile activity, will be inseperable form the process of interpreting and applying the law. It must be aimed at giving PRESCRIPTIVE guidance.
Dworkin’s interpretive attitide
Assumes that law has a general meaning or purpose (accords with Fuller). Takes the insider view. Presents the law in its most appealing light.
How Dworkin would interpret courtesy
- Couresy includes holding door open and doffing your cap. 2. The reason for courtesy is to show respect. 3. I will doff my hat to returning soldiers, but courtesy doesn’t require that I do it for the drunk on the corner
