Category Archives: General

Andreas Rahmatian, ‘The Political Purpose of the “Mixed Legal System” Conception in the Law of Scotland’

Abstract This article explores the concept of the ‘mixed system’ of Scots private law as a tool for Scottish legal nationalism. The paper looks at some difficulties and contradictions of the ‘mixed system’ idea and the role of Scottish legal nationalism in Scottish legal academia. Examples from contract, tort (delict) and property law will be […]

‘Legal Theory Lexicon: Theories of Statutory Interpretation and Construction’

“Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations …” (more) [Lawrence Solum, Legal Theory Blog, 2 December]

Anthony Julius, ‘Dedications’

Abstract What do we study, when we study ‘Law and the Arts’? Separate out ‘the arts’ into ‘literature’ and ‘the visual arts’. In the Academy, the relations between law and literature are typically studied thus: (a) the law of literature; (b) literary works that address the law; (c) law as literature. The relations between law […]

Brenda Hale, ‘Should the Law Lords have left the House of Lords?’

“Until 2009, the top court in the UK was a committee of the House of Lords. Its judges were the Lord Chancellor, other peers who had held high judicial office and the Lords of Appeal in Ordinary, the first life peers, appointed under the Appellate Jurisdiction Act 1876. The Law Lords did not join the procession of […]

Philip Sales, ‘The common law: context and method’

Introduction In this article I attempt to marry up some theoretical perspectives on the common law and a judicial point of view about how it operates. What does a common law judge do when deciding cases? How does he or she identify a legal rule or principle from a mass of materials – in particular […]

Noam Gur, ‘Ronald Dworkin and the Curious Case of the Floodgates Argument’

Abstract This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is […]

Jonathan Crowe, ‘Not-So-Easy Cases’

Abstract The distinction between easy and hard cases is well known from the work of Ronald Dworkin. Dworkin focuses primarily on the challenges posed by hard cases. Easy cases, by contrast, remain relatively under-theorized. This article begins by exploring how judges decide easy cases by relying on holistic intuitive judgments. I then build on this […]

Paul Troop, ‘Why Legal Formalism is Not a Stupid Thing’

Abstract Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic […]

Joseph D’Agostino, ‘Against Imperialism in Legal Concepts’

Abstract The authority of government – and that of its politicians, judges, regulators, and other specific authorities – continues to grow more imperialistic. This is partly due to the imperialism of legal concepts as facilitated by Wittgenstein’s famously non-essentialist treatment of concepts through family resemblance theory. Although non-essentialism or anti-essentialism can be highly valuable in […]

Gonçalo Almeida Ribeiro, ‘The Effects of Fundamental Rights in Private Disputes’

Abstract This Essay articulates two intertwined points about the effects of fundamental rights in private disputes. First, it presents a case against the doctrine of direct horizontal effect, although not on the familiar grounds that it places individual freedom in jeopardy. It argues instead that legislative mediation instantiates values of legal certainty, deliberative idleness, and […]