Hostname: page-component-848d4c4894-4rdrl Total loading time: 0 Render date: 2024-06-29T04:55:13.949Z Has data issue: false hasContentIssue false
  • English
  • Français

Some Structural Properties of Legal Decisions*

Published online by Cambridge University Press:  16 January 2009

S. C. Coval  and
J. C. Smith
Get access

Extract

It has been obvious to nearly everyone who has attempted an analysis of the judicial process that one cannot produce an adequate explanation of how legal decisions are taken by an examination only of the statutes and decided cases themselves. The richness of output cannot be explained with such poverty of input. This feature of richness in the process of legal decision can be explained by the addition to the above of judicial discretion. (We are not here referring to situations in which the law invests a judge with a particular discretion, e.g., to decide which of two parents should have custody of a child.) This gives an “adequate” explanation of the actual output, but at great other costs. In effect, such a hypothesis leaves us with an impenetrable black box mechanism as the key to the process of legal decision.

Type
Articles
Information
The Cambridge Law Journal , Volume 32 , Issue 1 , April 1973 , pp. 81 - 103
Copyright
Copyright © Cambridge Law Journal and Contributors 1973

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Dworkin, R. M., “Is Law a System of Rules?,” in Essays in Legal Philosophy, 25 (Summers, R. S., ed., 1968).Google Scholar

2 Dworkin. op. cit., p. 34.

3 Dworkin, op. cit., p. 37.

4 Dworkin, op. cit., p. 39.

5 Dworkin, op. cit., p. 38.

6 115 N.Y. 506; 22 N.E. 188 (1889).

7 Dworkin, op. cit., p. 38.

8 Ibid.

9 Ibid.

10 Amicable Society v. Bolland, 4 Bligh (n.s.) 194 at 211; 5 E.R. 70 at 76.

11 In the Estate of Cunigunda (otherwise Cora) Crippen, decd. [1911] P. 108Google Scholar; Re Johnson [1950] 2 D.L.R. 69.Google Scholar

12 Mutual Life Insurance Company of New York v. Armstrong, 117 U.S. 591 (1886).

13 [1892] 1 Q.B. 147. If the object to be ensured by public policy in this case was that such crimes be not motivated by the law itself, as it were, then it is not clear that allowing the children to take under the will would not constitute such a motivation for the mother. The court in the Cleaver case would appear to disagree with the court in Fauntleroy's case over what constitutes a motivation or a “lack of restraint” in such matters.

14 Ibid., p. 156.

15 Ibid., p. 155.

16 In the Estate of Hall, v. Knight and Baxter [1914] P. 1Google Scholar; Lundy v. Lundy, 24 S.C.R. 650.

17 Re Callaway (decd.), Callaway v. Treasury Solicitor [1956]Google Scholar Ch. 559.

18 Schobelt v. Barber (1967) 60 D.L.R. (2d) 519Google Scholar; Bierbrauer v. Moran, 279 N.Y.S. 176.

19 Re Callaway, supra, n. 8. Re Johnson, supra, n. 2.

20 Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586.Google Scholar

21 Browne, I. D., MacGillivray on Insurance Law (5th ed., 1961), p. 253.Google Scholar

22 Askey v. Golden Wine Co. Ltd. [1948] 2 All E.R. 35Google Scholar; Haseldine v. Hosken [1933] 1 K.B. 822.Google Scholar

23 Strand Electric and Engineering Co. Ltd. v. Brisford Entertainments Ltd. [1952] 2 Q.B. 246.Google Scholar

24 Olwell v. Nye & Nissen Co. 169 A.L.R. 139.

25 Wasson v. California Standard Co. (1965) 47 D.L.R. (2d) 71Google Scholar; Pretu v. Donald Tidey Co. Ltd. (1965) 53 D.L.R. (2d) 504.Google Scholar

26 Cassell & Co.Ltd. v. Broome [1972] A.C. 1027.Google Scholar

27 In re Houghton [1915] 2 Ch. 173Google Scholar; Baumann v. Nordstrom (1962) 37 W.W.R. 16.Google Scholar

28 Tinline v. White Cross Insurance Assoclation, Ltd. [1921] 3 K.B. 327Google Scholar; James v. Bririch General Insurance Co. Ltd. [1927] 2 K.B. 311Google Scholar; Bunting v. Hartford Accident and Indemnity Co. and Hartford Fire Insurance Co. [1955] 2 D.L.R. 700Google Scholar; Messersmith v. American Fidelity Co., 133 N.E. 432; New Amsterdam Casualty Co. v. Jones F. 2d 191.

29 O'Hearn v. Yorkshire Insurance Co. (1921) 50 Ont.L.R. 377.Google Scholar Early decisions such as this one, are considered to be wrongly decided and have not been followed.

30 Re Giles [1971] 3 W.L.R. 640.Google Scholar

31 [1970] 2 Q.B. 626 at p. 640; on appeal [1971] 2 Q.B. 554.

32 6 H.L.C. 443 at 461; 10 E.R. 1368 at 1375.

33 Ibid.

34 (1890) 45 Ch.D. 430 at 438.

35 63 F. 310 at 317.

36 Courts have held a breach of contract to be an illegal act. Ahmed Angullia Bin Hadjee Mohamed Sallah Angullia v. Estate and Trust Agencies Ltd. [1938] A.C. 624Google Scholar; Rookes v. Barnard [1964] A.C. 1129.Google Scholar It does not follow from this, however, that it is a wrong as defined according to the teleology of the rule in question.

37 Law Reform Committee, 14th Report, Acquisition of Easements and Profits by Prescription, para. 8 (H.M.S.O., 1966).

38 1 C.M. & R. 211 at p. 219; 149 E.R. 1057 at p. 1060.

39 Union Central Life Ins. Co. v. Elizabeth Trust Co., 183 A. 181 at 185. See also Re Gore, 23 D.L.R. (3d) 534.

40 A strict Positivist, in so far as he is limited to the first-order rules themselves in his description of “the Law,” thus cannot even find that there is a conflict.

41 32 N.J. 358; 161 A. 2d 69 (1960)

42 Dworkin, op, cit., p. 36.

43 Henningsen v. Bloomfield Motors, Inc., 161 A. 2d 69 at 95.

44 Lowe v. Peers (1768) 4 Burr. 2225 at 2233; 98 E.R. 160 at 164.

45 Collins v. Blantern, 2 Wils. K.B. 341 at 348; 95 E.R. 850 at 851.

46 For examples of the many cases which can be cited to illustrate each of the various kinds of contracts or contractual provisions which are void on grounds of public policy, see Cheshire and Fifoot, The Law of Contract (7th ed., 1969), pp. 310–363.

47 This formulation tends to oversimplify the common law relating to this subject as it fails to draw a distinction between “illegal contracts” which are void and consequently not enforceable, and contracts which are void only in so far as they contravene public policy and are therefore enforceable in part. To accurately reflect the state of the common law we would need to draft at least two second-order rules.

48 22 N.E. 188 at 189.

49 Ibid., p. 190.

50 [1947] 4 D.L.R. 393.

51 Ibid., p. 395.

52 394 p. 2d 921 at 926.

53 Dworkin, op, cit., p. 54.

54 H. C. Gutteridge, Abuse of Rights (1933–35) 5 C.L.J. 22. we are most grateful to professor otto Kahn-Freund who drew the principle of abouse of right and the above article to our attention

55 German Civil Code (Art. 226). See Gutteridge, op. cit., p. 36.

56 Swiss Civil Code (Art. 2). See Gutteridge, op. cit., p. 39.

57 Trib.Civ. Comptégne, Dalloz Périodique, 1913Google Scholar 2. 177; Amiens et Req. Dalloz Périodique, 1917Google Scholar 1. 79. See Gutteridge, op. cit., p. 33.

58 [1895] A.C. 587.

59 [1932] A.C. 562 at 580.

60 See for instance, Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 373.Google Scholar

61 There may indeed be a deep generative rule which allows us to generate new laws out of precedents in just the way that anomaly resolving rule 1 allowed us to generate new second-order rules. There would then be at least two fairly symmetrical rules to the law, anomaly resolving rule 1 and this other.

62 See Wasserstrom's, R. A. hypothesis in The Judicial Decision (Stanford University Press, 1961)Google Scholar, for an example of this defect which results from seeing too little formal structure to the law.