Overall picture Values + technical method Critique of legal reasoning to resolve social concerns

Social Contract = Hobbes

Justification for rules & authority

Agreement by the members of the society creating rules which govern themselves.
Law = set of rules & regulations of the SC enforced by political institutions (state or government)

Notion of enforcement of the rules with sanctions

Values of the population

Value system = IDEOLOGY Underpins the legal system reflecting the interests & beliefs of THE PEOPLE??

Comes from God Nature of the natural order of things Monarch Forms of commonwealth or sovereignty spirit of the people Custom & social usage

WAY it is defined Difference to the manner of its study, (interpretation) application & enforcement

HOW LAW IS DIFFERENTIATED FROM OTHER SOCIAL PHENOMENON IDEATIONAL INSTITUTIONAL

Assumptions conceptual unity of law

Moral, political, economic factors function of interpretation & argumentation implicit or tacit sources of law

Increasingly infrequently used as explicit sources of law

Most obvious & most stated meaning of source of law in contemporary cultures INSTITUTIONAL SOURCES OF LAW rather than directly or consciously elaborating the myth of an origin or essence of law or the dogmatic status of legal science or legal reason as sources of law

Science Despite its diversity in its historical development ~ different social, political & economic roles Distinctiveness of law Unity & separation from other phenomenon of social control

The assumptions that lawyers make . . . reference to moral, political & economic factors generally being seen as a function of interpretation and argumentation of implicit or tacit sources of law- rather than of formally designated legal authority

Law as a tradition and as a process or practice of regulation Legal doctrine = a series of traditionally established texts & similarly established techniques for the interpretation of those texts . . . The institutional source of law the established practice of the legal institution & of its officials

Approach to understanding law - positivism

Conceptual / ideational sources of law

Natural law Divine law Customary law

Institutional & interpretive text sources of law

Any law which satisfies the appropriate technical criteria of enactment counts as law
Problematic absence of reference to its moral quality Positivism provided a vehicle for de-politicising legal analysis ~ account of the entire legal system justice of the particular laws Stable & predictable regimes = legal systems

Positivist = validity of a rule is determined by reference to the question of whether it has been enacted in accordance with the formal requirements set down by the legal system

In order to count as valid law, positive law must be measured successfully against some standard found outside of the legal system.
Natural law approach = there must exist some moral code of principles which exists irrespective of positive law and against which it can be JUDGED.

The unjust law as defined by the criteria of natural law does not count as law properly called.
The individual is under no moral duty to obey such a law.

Social contract
Consent of the governed to the law

Positivism = philosophical position

Positivist outlook = Law consists of data = primarily rules Rules which can be recognised as such by relatively simple tests or rules of recognition

Passed through formal stages of a legislative process Derived from the ratio decidendi The essential grounds of decision of a case decided by a court having the jurisdiction and authority to lay down new rule in such a case
CONSTITUTE THE DATA = LAW

Law is a given = part of the data of experience It can be recognised as existing according to some observational tests it can be analysed Analogous (tests) to those by which a scientist might recognise the presence of a particular chemical

Moral terms Questions of laws nature & existence cannot be isolated from questions about its moral worth
Lex iniusta non est lex ~ an unjust law is no law at all

Moral principles having a validity and authority independent of human enactment, and which can be thought of as a higher or more fundamental law against which the worth or authority of human law can be judged

Fundamental natural law is variously seen as derived from human nature, the natural conditions of existence of humanity, the natural order of the universe, or the eternal law of God. Method of discovering = human reason Natural law requires no human legislator . Yet it stands in judgment on the law created by human legislators.

Stychin, (1999), 8 12. Passages from PS Atiyah (1995) Lawyer ~ practical approach to the question of rights & duties What is a court likely to decide if the case comes before it AVAILABLE LINES OF ARGUMENT

If I had to argue this in court, how would I present the case? the law is what the courts say it is
Law as a means for the resolution of disputes through the machinery of the state.

DISTORTED PICTURE OF THE MEANING OF LAW & THE LEGAL SYSTEM. `broader social context.

Historical development Thinking like a lawyer

General rules emerged from remedies granted in particular disputes. Specific disputes GENERAL RULES Precedents applicable to a wide range of cases
INDUCTIVE specific to general

If a number of cases have been decided in which a particular right or duty

was found to exist, then the court may conclude that the same

right or duty exists in all similar cases.

By studying several particular instances, the court formulates a general rule.

Concealed pit Quicksand Unstable slope

Cases collectively establishing a rule that requires the landowner to warn guests about HAZARDS

Rule formulated by a process of induction.

Rule is broader than any of the specific cases on which it was based.
A rule broader than any one prior case ~ creates a rule broad enough to apply to the novel case the novel case can be decided by

application of the newly synthesized rule.

Induction does not compel a particular conclusion but can only suggest that the conclusion is probable.
The court is not compelled to accept the new, broader rule.
The court may correctly note that the holdings in prior cases did not reach beyond . . ., and may decide not to extend the holdings beyond those situations.

Concealed pit Quicksand Unstable slope

the prior decisions in cases involving certain specific hazards do not require the court to decide that other hazards are SUBJECT TO THE SAME RULE. The court may correctly note that the
holdings in prior cases did not reach beyond . . ., and may decide not to extend the holdings beyond those situations.

Synthesizing the rule (exercise of judgment): 1. Lawyers must decide which facts to include How to characterise the prior cases?

INDETERMINATE 2. Set the level of generality at which the new rule should be formulated Whether to describe the prior cases in broad or specific terms?

Concealed pit Quicksand Unstable slope

ABNORMAL CONDITIONS ` abnormal HAZARDS ` each condition was dangerous CONCEALED HAZARDS `none of the hazard was obvious to the casual observer NATURAL HAZARD ` not the result of human activity DANGEROUS NATURE ` life threatening hazards

Concealed pit Quicksand Unstable slope

the land

BROAD ~ landowner has a duty to warn guests about all hazards on NARROW ~ characterise the conditions within the 3 narrow categories
A landowner has a duty to warn only of concealed pits of certain depth, unstable slopes of a specified angle and quicksand pools of a particular size

Between these extremes ~ range of possible rules of differing levels of generality Rule that is equally accurate
Numerous detailed facts in the factual predicate then necessarily the rule cannot be stated at a high level of generality

Policies underlying the cases Guide in selecting the facts to include in the factual predicate of the rule Choosing the level of generality at which to state the rule
Eg: policy of protecting personal safety Conditions may be hazardous whether it is natural or not duty exists
Policy to encourage people to be responsible for their own safety concealment is relevant court denies recovery to guests who put themselves at risk by encountering an obvious hazard

Courts attempt to strike a balance:

Compensating injury Encouraging safety by refusing to compensate the careless
Because the hazard was concealed, the victim could not have avoided injury by exercising care

The policy of encouraging safety did not preclude imposing liability on the landowner.

Level of generality sufficient to include the prior cases and the clients case. Reference to underlying policies ~ NOT ELIMINATE all the indeterminacy in synthesizing a new rule
Degree of choice

Mechanics of CL reasoning
Kenneth J. Vandevelde, (1996) Thinking Like a Lawyer. Boulder: Westview Press, 91-98 -techniques for following the precedent - techniques for distinguishing the precedent - CHOOSING between COMPETING ANALOGIES

Generalise as many cases as possible established

principle so courts not feel venturing into new terrain

Include in the factual predicate of the rule only

those facts that have clear counterparts in the current case

Argue that other points in the facts should be

considered as dictum exclude the fact from the new rule -

demonstrate the that the policies underlying the rule do not dictate that it be present The more cases that seem to embrace the rule the more willing the court will be to apply it in the novel case

1.
2. 3. 4.

Restrict the number of cases which the generalised rule

may be based confine the prior cases to their facts

No general rule exists ~ specific rules Formulate the rule narrowly ~ excludes the current case Identify dispositive facts in the prior cases that are not present in the novel situation ~
argue that the details are necessary