Designing a political system from the ground up is no doubt a complex and contentious challenge. There are many different approaches that may be adopted, many different principles that may guide drafters and interpreters, and many different value judgements that may be drawn into the process at different points. The reality is that it is … Continue reading Why Originalism?
Lawyers, judges, politicians, academics and philosophers often appeal to notions of ‘justice’ in public debate and civic discourse. But what the term ‘justice’ actually means is often loosely defined and uncritically understood. Oxford defines justice in terms of ‘just behaviour or treatment’ and ‘the quality of being fair and reasonable’. Cambridge defines justice as ‘the … Continue reading Why justice matters
Legal realism, certainly of the kind that can be traced back to former US Supreme Court Justice Oliver Wendell Holmes Jr., represents a bleak picture of law that abandons noble liberal and democratic ideals in favour of a system of rule by a thousand emperors. Particularly, legal realists' insistence that law can be found in … Continue reading If positivism is dissatisfying, legal realism is frightening
Critiquing an entire school of thought is an inherently dangerous undertaking, and this certainly holds true in the case of legal positivism. One of the foremost reasons for this difficulty is that legal positivists' views differ extensively, such that the distance between some classical and contemporary positivists (compare John Austin and Joseph Raz) is arguably … Continue reading Why legal positivism is a dissatisfying theory of law