CRIM 338 Lecture Notes - Lecture 7: Legal Realism, Syllogism, Consequentialism
3 Mar 2019
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Crim 338 - lecture 7 - legal realism. Objectivity - there are no right answers to legal problems. Principles - law is not just rules but contains principles. Institutional support - judges cannot apply any principles, they apply those principles which have institutional support. Dworkin identifies these 3 propositions as forming core of legal positivist position. Law is a set of rules established by the society (the pedigree test) The set of these rules is exhaustive of the law. And case not clearly covered by them must be decided by judge/official exercising his discretion . When no clear & valid legal rule covers case & judge must exercise their discretion, they are not enforcing legal right/legal obligation. There are no gaps in the law, if an existing law does not prohibit conduct it is lawful. Judges do not fill gaps; they can only change existing rules/principles.
