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Vol 21 No 11 Nov/Dec 2016

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The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles


ISBN13: 9780521066884
Published: June 2008
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback (Hardback in 2005)
Price: £34.99
Hardback edition price on application, ISBN13 9780521855662



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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This book dismantles these outdated theories and seeks to bridge the gap between legal theory and judicial practice.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.

Subjects:
Jurisprudence, General Interest
Contents:
Preface
1. Introduction
2. Muddling along
3. The curse of formalism
4. Legal fundamentalism
5. The idolatry of certainty
6. The piety of precedent
7. The foibles of precedent - a case study
8. There is no impersonal law
9. So, what is the law?
10. The constraints on the judiciary
11. Towards a new judicial methodology
12. Of realism and pragmatism
13. Of practical reasoning and principles
14. Taking law seriously
15. A theory of ameliorative justice
Subject index
Authors index.