SOSC 3375 Lecture Notes - Lecture 3: Antipositivism, Individual And Group Rights, Hybridity
22 Mar 2018
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Document Summary
Both apart of a movement away from legal formalism. Law as no more than the formal legal rules, doctrines and principles underlying high court decisions. Understanding more than what is on paper, than what is on paper, more beyond the set of rules. Law is an unfolding human process that is centred on real acting people making concrete decisions, it is not simply a mechanistic application of abstract rules or principles. Influenced by pragmatism, which is the emphasis on practice common sense in real life". That the law can and should be used as a tool for social change. That law is indeterminate, the law is different every time. Judges can mend the law however way they want, judges should be pragmatic in making those everyday decisions. 2- in doctrine of precedent, distinction between holding and dictum is vague/shifting. Judges able to rewrite the rules of law. Law is more than rules, includes unwritten rules.
