Archive | February, 2013

Stacking the Supremes

27 Feb

The appointment of three new UK Supreme Court judges has been announced, after the customary advance leaking tipping and briefing.

There is some discussion about whether the Government was pushing for another female Supreme Court Judge: some might say, ¬†‘If not – why not ?’ – and given that Mr Cameron’s ecclesiological analysis famously includes female bishops, this must seem plausible. Since Lady Arden is obviously able and available, can it really be a sufficient explanation that ‘But Lord Mance her husband is already on the Court’ ? Perhaps there is a ‘You don’t push us around’ message being sent out here, given recent Government murmurings against Judicial Review ?

Neglected Perspectives on Law ?

27 Feb

The writer has been reflecting on the idea that Law is per se a good rather than a neutral thing. This appears to be assumed or stated by Aristotle in the Politics, and is presumably – tho’ I’m certainly open to counter-citations – adopted by his successors like St Thomas Aquinas.

Of course the idea is controversial, but it is striking how much theoretical work it does – so it may be worth reconsidering – or at least using it to clarify why we are so sure that Law is evil or at best neutral, and so needs separate justification.

If so, then some of the difficulties positivists pose to Natural Law theories are addressed – as are indeed some of the difficulties positivists face themselves. Living under laws is a good thing, and so obedience to those laws in force here and now is at least to be presumed.

This needs some examples to play with …

Easing the Passing

25 Feb

It would be remiss of us, in returning to active service (see previous post), not to note the death of the eminent Anglo-American* jurist Ronald Dworkin. See here for his obituary in The Guardian.

Dworkin is to be remembered for taking up the challenge of giving an account of why the Law deserves to be obeyed – and (in effect – they are close enough to the same thing, perhaps) thus justifying its enforcement. More than that, he sought to justify the system of common-law precedent, and in particular the way that Judges would give decisions that seemed in advance of public/parliamentary/both opinion at the time – a phenomenon we can see on both sides of the Atlantic, albeit more famously common in America eg Roe v Wade¬†where the US Supreme Court discerned latent in their Constitution a Right to Privacy (via the ban on arbitrary official searches) and thence in effect a right to an abortion without state interference. In doing so he also showed a way to account for legal change in a common law system in a rather more detailed way than ‘law changes with society’ – indeed, that might seem (see above) to see Law as a leader of social change.

Whether this is a beneficial legacy may be another matter – Judges have not often noticeably needed much encouragement to see themselves as knowing better than everyone else – but it is certainly a very significant achievement in contemporary jurisprudence, and at least arguably gives a much fuller and more plausible account of common law judging than HLA Hart and the positivists did. For that his memory is to be saluted.

*Really American-Anglo – but the word doesn’t seem to exist.

Reviewing the Situation

25 Feb

Difficilior est non bloggere, as an ancient writer almost observed.

We had been reflecting during the marking season on the purpose of this blog. On the one hand, it is very nice for (Prof) Gavin Phillipson of the University of Durham and Adam Wagner of 1 Crown Office Row to pass by and offer comments – which we gratefully receive. Thankyou to them and to all our commenteers. On the other hand, this blog is not – in the nicest possible way – for these luminaries’ benefit. It is meant to be for a Law student audience – probably undergraduates, probably studying in a UK or otherwise common law / Westminster-influenced jurisdiction.

So we will try to re-focus more specifically on what may reasonably be of interest to them. All visitors will always remain welcome, and we hope never to need to reject a comment, but it seems only fair to flag up that re-concentration of focus here and now. We will continue to encourage our readers to read other relevant blogs, but we may be more wary of offering direct links to specific items.

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