Week 7 – Thinking Critically about Legal Reasoning
Orthodox view
- What is the law?
o A set of rules which govern society and create structure of authority or
government to run social order
o Independent and distinct enterprise from the other forms of social control
Griffith argues that an “impartial and neutral judiciary” is a myth
Lord Devlin sees this as a view of the left and argues “so
what?”
o Peter Goodrich view of the law
- The decision-making process – David Kairys’s views
o The law pre-exists, is predictable and available to anyone with reasonable
legal skills
o Facts of a case are ascertained by objective hearing and evidentiary rules
means the truth is revealed
o Result of a case is determined by a routine application of the law to the facts
o Any reasonably competent and fair judge will reach the “correct” decision
o Some recognition that law has something to do with social values --> policy
considerations
Critics of the Orthodox view
- (American) legal realism
o Christopher Columbus Langdell saw the law as science
Jerome Frank criticized this view as “the basic legal myth”
Indeed, law is inseparable from politics and ethics
Always two sides to any legal problem – no one solution
- Critical legal studies
o Law is contradictory and inconsistent --> indeterminacy
Not random though
Judicial Decision-Making
- The Supreme Court lacks diversity which is problematic because of:
o Democratic legitimacy, Equality and Representation
White Oxbridge educated men are not representative of UK
population
Makes representation of different view points more difficult
Affects judicial decision making
Lady Hale - ‘A generally more diverse bench, with a wider range of
backgrounds, experience and perspectives on life, may well be
expected to bring about some collective change in empathy and
understanding of the diverse backgrounds, experiences and
perspectives of those whose cases come to them.’
1
Orthodox view
- What is the law?
o A set of rules which govern society and create structure of authority or
government to run social order
o Independent and distinct enterprise from the other forms of social control
Griffith argues that an “impartial and neutral judiciary” is a myth
Lord Devlin sees this as a view of the left and argues “so
what?”
o Peter Goodrich view of the law
- The decision-making process – David Kairys’s views
o The law pre-exists, is predictable and available to anyone with reasonable
legal skills
o Facts of a case are ascertained by objective hearing and evidentiary rules
means the truth is revealed
o Result of a case is determined by a routine application of the law to the facts
o Any reasonably competent and fair judge will reach the “correct” decision
o Some recognition that law has something to do with social values --> policy
considerations
Critics of the Orthodox view
- (American) legal realism
o Christopher Columbus Langdell saw the law as science
Jerome Frank criticized this view as “the basic legal myth”
Indeed, law is inseparable from politics and ethics
Always two sides to any legal problem – no one solution
- Critical legal studies
o Law is contradictory and inconsistent --> indeterminacy
Not random though
Judicial Decision-Making
- The Supreme Court lacks diversity which is problematic because of:
o Democratic legitimacy, Equality and Representation
White Oxbridge educated men are not representative of UK
population
Makes representation of different view points more difficult
Affects judicial decision making
Lady Hale - ‘A generally more diverse bench, with a wider range of
backgrounds, experience and perspectives on life, may well be
expected to bring about some collective change in empathy and
understanding of the diverse backgrounds, experiences and
perspectives of those whose cases come to them.’
1
