PHIL 2050 Lecture Notes - Lecture 3: Deductive Reasoning, Susan Dimock, Legal Realism
11 Apr 2016
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Not to be used without written permission of the copyright holder. Oliver wendell holmes, the path of law 1897. Jerome frank, law and the modern mind 1930. Judges only apply the law which others make. Judges are passive, bound by law that pre-exists their judgments: changes to law made by judges are corrections rather than alterations, only legislatures can make new law, adjudication is mechanical, logical, deductive reasoning. Judges are to impartially apply the law which others make. Realist view: adjudication is not logical or deductive. Judges are not impartial: there is no law that pre-exists the judgment of judges. Judges make and change law: statutes and other sources of law are not law until courts say they are law, what a statute requires cannot be specified until courts interpret and apply it. Through such study we might be able to make generalizations; make the rules laid.
