Book contents
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 Muddling along
- 3 The ‘curse’ of formalism
- 4 Legal fundamentalism
- 5 The idolatry of certainty
- 6 The piety of precedent
- 7 The foibles of precedent – a case study
- 8 There is no impersonal law
- 9 So, what is the law?
- 10 The constraints on the judiciary
- 11 Towards a new judicial methodology
- 12 Of realism and pragmatism
- 13 Of … practical reasoning and principles
- 14 Taking law seriously
- 15 A theory of ameliorative justice
- Subject index
- Authors index
14 - Taking law seriously
Published online by Cambridge University Press: 15 July 2009
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 Muddling along
- 3 The ‘curse’ of formalism
- 4 Legal fundamentalism
- 5 The idolatry of certainty
- 6 The piety of precedent
- 7 The foibles of precedent – a case study
- 8 There is no impersonal law
- 9 So, what is the law?
- 10 The constraints on the judiciary
- 11 Towards a new judicial methodology
- 12 Of realism and pragmatism
- 13 Of … practical reasoning and principles
- 14 Taking law seriously
- 15 A theory of ameliorative justice
- Subject index
- Authors index
Summary
So, will there be a difference?
The point in seeking to bridge the gap between legal theory and legal practice and evolve a comprehensive perception of the judicial role is that it would make a difference in practice. Changes in the judicial process and judicial methodology should eventuate. But is this wishful thinking? Would acceptance of the conception of the judicial role and approach I have advanced do much more, if anything, than make overt in judicial conduct and reasoning that which is already being done covertly? Will the desired changes in attitude and practice occur in any event? What would the main differences be if more and more judges adopted the judicial methodology I have put forward? These questions can be briefly addressed in this penultimate chapter.
Making overt that which is covert
Certainly, acceptance of the recommended methodology would make overt much that is presently been done by judges covertly. I do not doubt for one moment that those judges who are coerced, condemned or otherwise persuaded to read this book will frequently have said to themselves; ‘Well, I already do that’, or ‘That [criticism] may be so of other judges, but it is not true of me.’ Judges do not admit to be lacking in realism, pragmatism, creativity, common sense, a sense of justice or any of the other attributes I have extolled.
- Type
- Chapter
- Information
- The Judicial ProcessRealism, Pragmatism, Practical Reasoning and Principles, pp. 349 - 357Publisher: Cambridge University PressPrint publication year: 2005