Legal Method Legal Method The Palgrave Macmillan Law Masters series is a long-running and successful list of titles offering clear, concise and authoritative guides to the main subject areas, written by experienced and respected authors. This eighth edition of Legal Method provides a lively introduction to the nature of the English legal system and its sources, and to the techniques which lawyers use when handling those sources. The text assumes no prior knowledge and makes its content accessible by clarity of expression rather than by dilution of content. In addition to more conventional sources, writers as varied as Jonathan Swift, Alexander Pope and T. S. Eliot are cited. This is an ideal course companion for both law undergraduate and GDL/CPE students. The new enhanced layout includes end of chapter summaries and self-test exercises Palgrave 978-0-230-28568-2
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Legal Method

  • Автор: Ian McLeod
  • Мягкий переплет. Крепление скрепкой или клеем
  • Издательство: Palgrave
  • Серия: Palgrave macmillan law masters
  • Год выпуска: 2011
  • Кол. страниц: 352
  • ISBN: 978-0-230-28568-2
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The Palgrave Macmillan Law Masters series is a long-running and successful list of titles offering clear, concise and authoritative guides to the main subject areas, written by experienced and respected authors. This eighth edition of Legal Method provides a lively introduction to the nature of the English legal system and its sources, and to the techniques which lawyers use when handling those sources. The text assumes no prior knowledge and makes its content accessible by clarity of expression rather than by dilution of content. In addition to more conventional sources, writers as varied as Jonathan Swift, Alexander Pope and T. S. Eliot are cited. This is an ideal course companion for both law undergraduate and GDL/CPE students. The new enhanced layout includes end of chapter summaries and self-test exercises
Отрывок из книги «Legal Method»
Chapter 1

An introduction to law and legal
Reasoning
1.1 Introduction
This book is about the techniques that are available to lawyers when they are
handling the law. In broad terms, the law itself may be found easily enough in
Acts of Parliament (otherwise known as statutes), which are primary legislation;
certain things done under the authority of Acts of Parliament, which are secondary
(or delegated or subordinate) legislation; the decisions of the courts themselves,
which collectively make up the common law; the system of European Union
(previously known as European Community) law; and, increasingly, the law
developed in the European Court of Human Rights. However, the underlying
theme of this book is that, whatever sources of law are being used, legal method,
when properly understood, is a creative process. More particularly, legal method
provides a stimulating mixture of relatively abstract reasoning and the use of
language in order to achieve practical results.
1.2 Legal method as a creative process
If legal method involved nothing more sophisticated than finding the right page
of the right textbook in order to apply the rule to the facts, there would be no
disputes beyond those as to what the facts were in each case. Plainly, however,
arguments as to the law are commonplace. (Indeed, if they were not, no one
would need to learn the skills of legal argument, and books such as this one
would be neither written nor read.)
The scope for creativity in legal argument is neatly illustrated by the story of
someone who wanted to know the result of adding 1.111 and 8.888. She began
by asking a mathematician, who said: ‘The answer is obvious. It is 9.999’. She
then asked an engineer who said: ‘Well, strictly speaking the answer is 9.999; but
engineering is a practical subject and for all practical purposes the answer is 10’.
Finally, she asked a lawyer, who replied with a question: ‘What do you want it
to be?’.
While it is, of course, obvious that many important aspects of legal argument
centre on the detailed words of specific legal texts (legislation, cases, and so on), it
is also true that legal argument may sometimes go beyond the texts themselves and
include a variety of extrinsic materials. (See, in particular, page 258 in relation to
English legislative interpretation.) Furthermore, it is also true, and no less important,
that legal reasoning may, in practice, also depend upon other factors which lie
beyond the scope of what most people would consider to be law at all. A brief
consideration of the views of two legal theorists will illustrate the point.
Oliver Wendell Holmes (1841–1935) was one of the founders of the school
of thought known as American Realism, the central tenet of which is that what
actually happens in the courts is what really matters. Placing the emphasis on
‘law in action’ rather than ‘law in books’, Holmes says, ‘the prophecies of what
the courts will do in fact, and nothing more pretentious, are what I mean by the
law’. (The Path of the Law (1897) 10 Harv LR 457.)
Furthermore, having stated what is probably his most famous maxim (‘the life
of the law has not been logic, it has been experience’, which is found on the first
page of his textbook The Common Law, published in 1881), he puts the relationship
between logic and experience thus:
‘The training of lawyers is a training in logic... The language of judicial decision
is mainly the language of logic. And the logical method and form flatter that
longing for certainty and for repose which is in every human mind. But certainty
generally is an illusion, and repose is not the destiny of man. Behind the logical form
lies a judgment as to the relative worth and importance of competing legislative
grounds, often an inarticulate and unconscious judgment it is true, and yet the
very root and nerve of the whole proceeding. You can give any conclusion a logical
form.’ (Emphasis added. The Path of the Law (1897) 10 Harv LR 461.)
In other words, behind any explicit formulation of judicial reasoning there
lies an implicit attitude on the part of the judge. For reasons which will become
apparent when you have read pages 8 and 9, this implicit attitude may be
called the inarticulate major premise. The difficulty in identifying inarticulate
major premises is simply that they are inarticulate, and therefore their precise
formulation involves guesswork. Nevertheless, there are cases in which the
judges have obligingly articulated that which could easily have remained
inarticulate. Two cases are instructive.
(…)

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Содержание
PART I: IDEAS AND INSTITUTIONS
An Introduction to Law and Legal Reasoning
The Classifications of English Law
The Jurisdictions of the Principal English Courts
The Constitutional Context of Legal Method
European Community Law and English Law
The Protection of Human Rights and Fundamental Freedoms
Finding, Citing and Using the Sources of Law
PART II: CASE-LAW AND PRECEDENT
An Introduction to the Doctrine of Binding Precedent
Ratio Decidendi and Obiter Dictum
Vertical and Horizontal Dimensions of Precedent
Does the House of Lords Bind Itself?
Does the Court of Appeal Bind Itself?
Does the High Court Bind Itself?
Arguments For and Against Judicial Law Making
Precedent and Principle in the European Court of Justice
PART III: LEGISLATION AND LEGISLATIVE INTERPRETATION
An Introduction to Statute Law and Statutory Interpretation
Statutory Drafting
Plain Meanings, Mischiefs, Purposes and Legislative Intention
Modern Interpretation in Practice
Legislative Interpretation in the European Court of Justice
Штрихкод:   9780230285682
Масса:   520 г
Размеры:   235x 155x 20 мм
Тип иллюстраций:   Без иллюстраций
Язык:   Английский
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