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Lecture 6

LAWS 1000 Lecture Notes - Lecture 6: Ratio Decidendi, Statutory Interpretation, Legal Realism


Department
Law
Course Code
LAWS 1000
Professor
Ozsu Faik
Lecture
6

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LAWS1000 Week 7, Oct 21st
Precedent
- central to common law
- definition in previous lecture
Ratio decidendi = the rationale behind the court’s decision/ Why?
Obiter dicto = by the way/on the side “as an aside” things that the court says to
clarify/elaborate/illustrate (not strictly binding)
Statutory interpretation
- interpreting statutes
- interpretation of statutory law
- how do you read it?
- At root, a toolbox, with many different tools, each of which is best for a specific task
- Developed techniques
Competing theoretical perspectives on law
1. Legal positivism
- Typically argues that law cannot be understood independent of the state
- Legal positivists argue that law must be understood “on its own terms”
- Many positivists seek to provide an account of law as a “system” (law isn’t random rules
etc. it all makes sense if its interpreted successfully)
- Legal positivism set themselves against all those who argue that law is the best
understood as an outgrowth of some broader conception of social justice or the common
good
- The law is what the state/relevant official of the state say it is/tells you what it is
- Aboriginal law etc. = not law (not saying it’s not important)
- They want to draw a line and say that the state is where the line is drawn
- Very strong position (problematic?)
- Regardless of their differences all positivist agree that law needs to be understood on its
own terms stands apart from other fields
- Say there’s not necessarily a connection between law and morality
- Argue that Nazi law etc. IS law not saying its not horrible but thinks its law.
- It mattered in people’s lives because it was enforced law
- No patience for natural law ways of thinking (and more)
- * Law is simply what state institutions tell us it is,, not tethered to religion or theology or
morality, etc.
find more resources at oneclass.com
find more resources at oneclass.com
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