The Judicial Process
Realism, Pragmatism, Practical Reasoning and Principles

This 2005 book propounds a coherent and comprehensive judicial methodology for modern times.

E. W. Thomas (Author)

9780521066884, Cambridge University Press

Paperback / softback, published 19 June 2008

444 pages
22.9 x 15.2 x 2.5 cm, 0.65 kg

Review of the hardback: 'This outstanding book, written by an experienced and distinguished Judge, is a timely reminder that the courts exist to help the citizens of a free and democratic society obtain justice through the legal process in an uncertain and continually changing world. To achieve this end, the author advances a comprehensive conception of the judicial role founded on an extensive study of legal theory and practice.' Professor George C. Christie, Duke University, North Carolina

In the absence of a sound conception of the judicial role, judges at present can be said to be 'muddling along'. They disown the declaratory theory of law but continue to behave and think as if it had not been discredited. Much judicial reasoning still exhibits an unquestioning acceptance of positivism and a 'rulish' predisposition. Formalistic thinking continues to exert a perverse influence on the legal process. This 2005 book dismantles these outdated theories and seeks to bridge the gap between legal theory and judicial practice. The author propounds a coherent and comprehensive judicial methodology for modern times. Founded on the truism that the law exists to serve society, and adopting the twin criteria of justice and contemporaneity with the times, a judicial methodology is developed which is realistic and pragmatic and which embraces a revised conception of practical reasoning, including in that conception a critical role for legal principles.

Preface
1. Introduction
2. Muddling along
3. The curse of formalism
4. Legal fundamentalism
5. The idolatry of certainty
6. The piety of precedent
7. The foibles of precedent - a case study
8. There is no impersonal law
9. So, what is the law?
10. The constraints on the judiciary
11. Towards a new judicial methodology
12. Of realism and pragmatism
13. Of practical reasoning and principles
14. Taking law seriously
15. A theory of ameliorative justice
Subject index
Authors index.

Subject Areas: Constitutional & administrative law [LND], Courts & procedure [LNAA], Jurisprudence & general issues [LA]