Search Results

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examined the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. Effectiveness in interpretation serves the more general principle of completeness, determinacy and effectiveness of legal regulation. The methods of interpretation are aimed at preserving the original consent, will, and intention behind the relevant legal instruments and thus at ensuring the determinacy of the relevant provision by enabling its application to facts. These methods are consistently aimed at confronting claims as to the indeterminacy of treaty provisions.

This chapter shows that the philosophical criticisms against parliamentary sovereignty are based on a defective understanding of the foundations of legal systems, and consequently of the relationship between parliamentary authority and the common law. It defends the orthodox understanding that the doctrine of parliamentary sovereignty is currently part of the constitutional law of the UK, Australia, and New Zealand. If it were not, there would be no need to debate the merits of a Bill of Rights: judges would already have authority to invalidate legislation they regard as inconsistent with fundamental rights.

This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.

This chapter examines the legal doctrines of humanitarian intervention that were developed in the second half of the nineteenth century. Drawing on nineteenth-century British and French writings, articles, memoirs, journals, pamphlets, and reviews, it shows that the image of the Ottoman Empire and that of its Christian subjects were far from being monolithic. The chapter first considers the reasons why the Ottoman Empire was generally excluded from the Family of Nations, including despotism, Islam, polygamy, slavery, corruption and the absence of a sound social structure, inability to reciprocate in legal dealings, and unwillingness or incapacity to institute reforms that would guarantee security of life and property to Ottoman Christians. It then discusses the main criterion articulated by various legal scholars for the Ottoman Empire's inclusion in the Family of Nations before concluding with an analysis of late-nineteenth-century doctrines of humanitarian intervention.

This chapter describes the characteristics of traditional private law and how this form of legal discourse has been subject to productive disintegration. It begins by examining the competing normative considerations that shape legal doctrine. It then considers how a distinctive branch of legal doctrine known as the law of contract has emerged and sustains itself. The chapter concludes by examining the forces that appear to be leading to a collapse of the distinctive properties of the private law of contract as a regulatory system governing social conduct. The pattern of closure and self-reference exhibited by private law has been subjected to a series of subversive attacks. As a consequence, the integrity of the doctrinal system has eroded. But at the same time it is argued that the productive potential of private law as a regulatory instrument has been enhanced.

This concluding chapter first summarizes the book's key themes. These are that justices are influenced by more than just the policy preferences emphasized by the attitudinal model; the law matters for justices; and the influence of specific legal doctrines varies across justices. These findings have important implications for understanding the political context of the Court. What does it mean for the legitimacy of the Court that both law and policy influence justices? What do the existence and patterns of these non-policy influences mean for the Court in it relations with the rest of the political system? The remainder of the chapter is devoted to exploring such questions.

In this chapter we establish our "simple" question: just how does one do doctrine? That is exactly what we are on about in this book. Here we wish neither to praise nor to criticize doctrine but to reveal and, with some luck, refine those conceptual and rhetorical operations we legal professionals perform with doctrine. We want to make the crucial doctrinal operations explicit, show how they work, how they shape the law that emerges. The aim is thus to develop a more systematic understanding of the doctrinal moves many of us already make intuitively. Throughout this book, doctrinal arguments found in briefs and judicial opinions are very much patterned. Some of those patterns can be traced to the substantive subject (e.g., torts) and its various concerns (e.g., the correction of wrongs, the regulation of risk). That is not our topic. Some of the patterns, however, comes from the character of doctrine itself as a form of law. It is the latter that we focus upon here.

This chapter examines the kidney swap or kidney paired donation, which is both a method shaped by the medical professions and computer technologies, and a practice shared by patients. It occurs when a pair of relatives (one potential recipient and one want-to-be-donor) who are not compatible by blood, are ‘matched’ with another pair who are also not compatible together. It begins by presenting some ethnographic and secondary data about the practices, functions, and epistemologies of the organ swap. It argues that these make visible both anthropological concepts and legal doctrine. The chapter examines in detail how the swap both confuses established categories on the one hand, and makes their terms explicit on the other. It mobilizes both the contract law theory of consideration and ethnographic observations in order to refine the legal and anthropological study of swaps, the current fascination they bring about in the medical milieu, and the proliferation of their underlying logic. It aims to show how old legal objects drawn from doctrine can be used doubly: they can remain intriguing artefacts for anthropological analysis, and they can bring fresh theoretical perspective to the anthropological examination of an artefact. The chapter finally asks what this means for future legal—anthropological inquiries in swap and barter.

This chapter draws together the threads of the argument with respect to the question of what kind of regulation of contracts will best support markets. The argument challenges the conventional wisdom that a clear, formal set of rules defining the entitlements of parties to the contract best serves the interests of business. It is argued that the advantages of formalism in legal reasoning are normally overstated, and that calculability of legal entitlements requires rather more open textured roles and other techniques for contextualizing disputes.

The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging (fMRI) has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This chapter attempts to put such claims in perspective and considers how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice, and theory, but such contributions will be few and modest for the foreseeable future. The first part of the chapter describes the law's implicit folk psychological view of human behaviour and why any other model is not possible at present. It then turns to dangerous distractions that have bedevilled clear thinking about the relation between scientific explanations of human behaviour and law. Next, it considers how to translate the mechanistic findings of neuroscience into the folk psychological concepts the law employs. Finally, illustrative case studies of the legal relevance of neuroscience studies are presented. The discussion and all the examples focus on criminal law and on competence for the sake of simplicity and coherence, but the arguments are almost all generalizable to other legal contexts.

What kind of legal theory is needed to take account of changes in the nature of regulation discussed in the previous chapter? It must be theory focusing on the complexity, diversity, and indefinite boundaries of contemporary legal regulation, and on the variety of its sites and settings. It must recognise legal doctrine and practices as instruments of coercive power but also, potentially, as frameworks and expressions of integrated communities. Contemporary legality is a matter of fragmented regulation, diverse regulatory regimes and jurisdictions, piece-meal legal rationality, and policy-driven law. In such conditions, moral foundations for law are not impossible to find but the moral milieux in which legal principles can be rooted will be relatively local and specific. The resources of both legal philosophy and sociology of law are necessary in conceptualising a morally meaningful legality.

This chapter argues that in addition to doctrines of positive law telling us what authority is to be ascribed to judicial precedents, we must also have to have theories of precedent. For without some theoretical understanding of the precedents of and of such key concepts as that of ratio decidendi, we cannot implement any legal doctrine of precedent. The chapter begins by recapitulating on the present theory of legal justification so far a relevant to binding precedents. It then considers the objection that this account is objectionably legalistic. It offers a model of the ratio decidendi and discusses whether this is the best that can be done by way of ‘rational reconstruction’.

How should law as a discipline or intellectual field be viewed sociologically? Indeed, what does it mean to speak of intellectual disciplines, and how can disciplines confront each other? Law and sociology show similarities but also important contrasts in the way they are constituted as intellectual fields and in their strengths and weaknesses as such. Law's particular weaknesses have allowed sociological ideas to invade legal thought in certain contexts and conditions. But, perhaps ironically, the continuing importance of the sociological tradition as a source of enlightenment about law derives in very large measure from the intellectual consequences of sociology's own permanently insecure and ambiguous disciplinary status. It seems appropriate to locate the model of judicial decision-making at the centre of legal science, but only in so far as this decision-making is inseparably connected with the production or refinement of legal doctrine.

This chapter identifies the complementary rules of customary law and the applicable general principles of law. The first section addresses the application of traditional jurisdiction-regulating rules by international courts and tribunals. These are the choice of forum principles and the rules of lis alibi pendens and res judicata. Since the electa una via rule does not find any meaningful support in the international jurisprudence. The second section examines the possibility of applying general legal doctrines to situations involving jurisdictional competition. These include the theory of abuse of rights, the principle of comity, and some principles governing treaty obligations.

This chapter focuses on a key document within the process of the Europeanisation of private law legal scholarship, the Principles of European Contract Law (PECL). It suggests that these principles can be considered as a contemporary manifestation of a genuinely European tradition which used to be called ius commune and argues that they can also serve a catalyst for a Europeanisation of private law ‘from within’ and ‘from below’. The chapter contends that these principles should be taken into consideration not only by comparative lawyers but, particularly, by all those engaged in shaping and elucidating national legal doctrine.