In Elements of Legislation, Neil Duxbury examines the history of English law through the lens of legal philosophy in an effort to draw out the differences between judge-made and enacted law and to explain what courts do with the laws that legislatures enact. He presents a series of rigorously researched and carefully rehearsed arguments concerning the law-making functions of legislatures and courts, the concepts of legislative supremacy and judicial review, the nature of legislative intent and the core principles of statutory (...) interpretation. (shrink)

This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has (...) evolved as a collection of themes which reflects broader American intellectual and cultural concerns. (shrink)

This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has (...) evolved as a collection of themes which reflect broader American intellectual and cultural concerns. (shrink)

This controversial book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilizing a variety of disciplines and materials, the author considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The final chapter of the book considers how lotteries might be combined with other decision-mechanisms and suggests that it may sometimes (...) be sensible to require that adjudication takes place in the shadow of the lottery. (shrink)

Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. Random Justice: On Lotteries and Legal Decision-Making explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilizing a variety of disciplines and materials, Neil Duxbury considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery (...) as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, as Professor Duxbury demonstrates, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery. (shrink)

This chapter contains sections titled: Modern Legal Theory and the Impact of Realism Policy Science Legal Process References.

This article offers a critical reassessment of the jurisprudence of Rudolf von Jhering. During the 20th century, Anglo-American legal philosophers who drew inspiration from Jhering's work usually lauded him either as a German forerunner to American legal realism or as an early proponent of a jurisprudence of interests. These representations of his work do not do justice to Jhering's jurisprudential project. This study demonstrates that he sought to explain how legal systems originate and how they maintain authority. It is shown (...) that his explanation of legal authority depends not only upon familiar jurisprudential notions such as reciprocity and positional duty, but also upon the concept of Rechtsgefühl—namely, the idea that authority is conditioned by citizens’ feelings of what is right or just. Jhering, it is demonstrated, believed that the authority of a legal system depends very much on its ability to negotiate and accommodate struggles based upon feelings of right—struggles between citizens, between citizens and State, and between States. It is also argued that the manner in which Jhering relies on the idea of Rechtsgefühl undermines the received wisdom that he was an interest theorist. (shrink)

This article examines the concepts of retrospective and retroactive—both forms of ex post facto—law. It shows that although the distinction between retrospective and prospective law is difficult to draw (given that laws generally alter rights), the classification of particular laws as retrospective is not arbitrary, since the proposition that only some legal rules interfere with “vested” rights is, while vague, not meaningless. Retroactive legislation is recognized to attract a long list of objections. The article seeks to identify and assess those (...) objections, and to provide a comprehensive account of the various possible (if invariably limited) justifications for retroactivity. The conclusion offers some brief reflections on why the complaint that a law operates ex post facto is less likely to be directed at a judicial decision than at a statute. (shrink)

Frederick Pollock and the English Juristic Tradition provides the first detailed historical account of one of England's great jurists. Drawing upon a vast array of sources, Neil Duxbury examines Pollock's career, jurisprudence, philosophy of the common law, treatise writing, and editorial initiatives, and shows that Pollock's contribution to the development of English law and juristic inquiry is both complex and crucial.Readership: Scholars and students of legal history and legal thought, barristers, and judges.

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable (...) to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on – and will prompt lawyers to pose fresh questions about – the common law tradition and the nature of judicial decision-making. (shrink)