If law is all to be freshly and innovatively created by the judges from day to day to suit each particular and instant case, then of law there will be no inkling — despite the exponential increase in litigation. It is as if throughout The Judicial Process the bright shining thread of argument and it does shine with an amazing brilliance is being deflected in divertingly different directions through a series of prisms.
Is this a conjuring trick? The law-making legislature preoccupies itself with interests, whereas reasoning is the prerogative of the judiciary. If not in itself a constitutional move to take over the law-making functions of an interest-oriented legislature, is all of The Judicial Process then a clever spoof, a parody of post-modern jurisprudence, a cynical examplar of the way in which post-modern law teaching has substituted a plethora of legal theories and a no-holds-barred speculative approach to a professionally-founded yet intimately-experiential jurisprudence?
By those who mistake a failing for a virtue, Thomas is drawing attention to a disease rampant in the Common Law. Back in the times of Edward I — the English Justinian — it is true that even legislation adhered to a declaratory role. Surprisingly enough, most of that declaratory legislation — mortmain, de donis conditionalibus, in consimili causa — came to operate, whether by way of historical consequence, provoked response, or by scholarly misunderstanding, as innovative legislation.
Nevertheless, the division of labour and specialisation of function continues to be prescriptively implemented not only for jurisprudence and constitutional law by such doctrines as the separation of powers and the Rule of Law, but also by an increasing number of separate Ministries of State, State-Owned Enterprises, distinguishable Crown Entities, Commissioners for this and that, and any amount of Quangos as never before. Institutional separation — consequent upon the demise of the Crown — is the prevailing fact of legal life. That the separation be watertight, or be criticised for not being watertight denotes a formalist, legalist, rule-ish frame of mind.
Separation, among other things, may account for the origin of species, but that does not argue against different species sharing the same generic gene pool or their being bound into the same mutual or commensal struggle for survival. What makes the judiciary, as de Tocqueville might euphemistically ask, so restive? For the sake of the ensuing prize-fight, we would want both protagonists to belong to the same class on weighing-in, and, for the sake of a strenuous but fair fight, to be pretty equally matched.
Of course, all of this debate between rules and principles in Common Law can be explained with more impartiality by comparative lawyers at Roman Law . There is nothing new — nothing novel to it. On the one hand, there are the Institutionalists, and on the other hand, there are the Pandectists. The Institutionalists rely on drawing divisions and making distinctions by which to systematize the law invariably according to order and rule , whereas the Pandectists postulate general principles purportedly derived from instant cases and from which they draw specific deductions to apply to subsequent instant cases but not necessarily according to any order or rule.
This is a particulate, not even molecular view of the legal universe: the case gives rise to creation and not creation to the case: the particular to the general and back again to the particular as being the only thing that really counts , rather than from the general by way of some absolute, either real or hypothetical to the particular.
Thomas is a Pandectist, and so, like Cardozo, Denning, Cooke and like-minded modernists, is always fox-hunting often long after the fox has gone to earth and then digging into, as still he always does, to pursue the particular case. Unlike his anti-heroes of Glanvil, Bracton, Coke, and Blackstone, to which may be added Maine, Maitland and Dicey as Institutionalists many Pandectists of whom Thomas may be one risk mistaking a purely personal for a validly microscopic and meta-ordered view of the law. If you want to witness a modern instance of a mixed legal system at risk of being so strangely and perplexedly divided into Institutionalists and Pandectists, then consider some of the more controversial cases  that have arisen recently under Scots Law.
Those who are convinced by this curtain of social science being drawn down often by the judiciary over established law, should re-read such cases, however difficult they may find that close-textual reading of the law to be, as Dering v The Earl of Winchilsea . Authority flows from rule-making. Behind the attempted thesis of Thomas to break down the rules, lies a strategy of modernist reductionism.
Despite if not because of this grand if not grandiose objective to supplant law with social science, Thomas projects not only a cynicism or disappointment with people, but also, in consequence, a prevailing suspicion of the legal process. Why so — it is, as recognised and protected by the law, a fiduciary relationship? Thomas, like many critical legal theorists  , conducts his case by perplexing his readers with antimonies.
Although opening his own antimonies in the legal system — between certainty and service, rules and principles, Thomas closes down other well-established antimonies — as between the legislature and the judiciary pp , ; between law and politics pp ; between justice and mercy pp ; between law and justice pp ; between law and equity pp ; between law and morality pp ; between equity and morality pp ; between equity and non- exploitation p Obviously you cannot have all doors and windows of the legal system open to all four winds of change at the same time, lest the resulting whirlwind, as in the Book of Job, blow the entire Palace of Justice all away; but there is no little suggestion of subjectivity in fusing, not just both law and equity, but also both legislature and judiciary to achieve this aim.
Such mountains are made, not moved by acts of faith. It is not until a judge speaks or writes ex curia that he becomes vulnerable. Otherwise he is all too much tempted by the respect accorded to him by society to equate his person with the court, and to mistake the curial authority for being that of his own person or of his office or even that of personal intellect. Even were this valid for any judge to do, it would be a matter of exerting judicial autonomy over the law by way of, at the most, sociological values. What any former judge writes about the legal system — whether written for his own time by a Holmes or a Cardozo, and most certainly for our own time by moderns such as a Denning  or a Bingham  , is bound to be a biographical give-away.
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- Delusions — Pragmatic Realism.
Psychoanalytic jurisprudence is not only unnecessary but something of an affront to the still respected judiciary. On this account, everyone connected with the law is vitally interested and engaged to find out what the judge — outside the context of the concrete case before the court — really thinks about the legal system. So much if you like, for the small print of the law in the perhaps failing print of our own small time. There may be much larger issues at stake, however, over any much longer time.
Records remain valuable, although, for being no more in themselves than the measure of their own time.
Mansfield is remembered, but often no more than as a counterfoil to the continuity of contract. The Common Law, in its being customary, must await its evaluation according to its own accustomed time. What goes beyond the small print of the law in being written up for all time? Masquerading as legal history in less than strenuously academic circles, it is much given to the pathetic fallacy and taken up with painting social pictures, full of polemic in its treatment of primary as secondary sources, and prepared to excuse eighteenth century terrorism in the name of class action.
Reviewers are accustomed to providing some sort of outline or summation of any book reviewed. In this case the book under review cleverly programmes itsown strongly sign-posted direction of travel. Its chapter-headed programme is couched with all due splendour in the most memorable of Churchillian words and Ciceronian phrases.
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After having postulated the problem of judicial muddling along in all its shapes and forms of aspirational, romantic, and presumptive positivism chapter 1 , having lifted the identified curse of formalism and waged war on legal fundamentalism chapter 4 , then having rejected the piety of precedent chapter 5 and broken the back of idolatrous certainty chapter 6 , the author proceeds, after poking fun at the foibles of precedent chapter 7 and with a shout from the rooftops that there is no such thing as impersonal law chapter 8 to make his way, more reflectively and discursively than formulaically chapters 9 and 10 , towards a new judicial methodology chapter 11 obtained by means of practical reasoning and principles chapter 13 as already prefaced by hard realism and pragmatic practice chapter These are more like pictures in an exhibition, a rhetorical slideshow of visual impressions, as are many power-point presentations these days in their defiance of seriously scholastic argument.
How does one disprove that which avoids most means of proof? Do jurists do no more than paint pretty pictures? Thomas begins by quoting Bickel  , but avoids crowding his canvas with those who have stoutly opposed  , perhaps even trounced  the. The resulting pretty picture is at the expense of rarely pleasant scholarship. To what extent is elegantia juris a matter of aesthetics ? Who dares distinguish folly from wisdom? Since the last Roman carnival by which Rome fell, legal entertainment has never held such a sacred place in the play-way system of legal education.
Rhetoric can put a thought in place from which the thought cannot lightly be displaced. The treatment of juristic classics — like those of Plato, Aristotle, Hobbes, Locke, Hegel, Kant et al — are given a titular credit-rating p The desultory result of paying any but some name-dropping lip service to the Greats only causes confusion and uncertainty — but confusion and uncertainty are meat to relativist jurisprudence.
In the realm of teaching legal theory it is preferable that some theorists go to Hell even if only a few get to Heaven rather than have them all reduced to Limbo. Thomas nevertheless claims to be in good company — although as distinct from the classical authorities of Coke, Blackstone, and Dicey almost all his heroes are among the still-living. Blackstone is but mentioned — and that to be accused by Bentham of complacency. Of course, since the whole objective of The Judicial Process is to attack and destroy the rigorousness of legal argument, Thomas himself falls into his own trap of thinking that rigorous argument can fall victim to less rigorous argument.
No — on the contrary — argument is judged by its rigorousness! Take the following paragraph from Thomas p 3 as a typical example of his less than rigorous reasoning:. The same argument is also invalid for being ad hominem or ad homines instead of being argued ad rem. That any thing is so as simply said by Lord Reid and that ex curia commits the fallacy of secundum quid — since nothing said is thereby true.
MIFTAH - Dreams and Delusions
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More filters. Sort order. Start your review of Delusions: Pragmatic Realism. Aug 19, Philippa rated it it was amazing Shelves: re-examining , personally-candid , devastating , stimulating. Your recommendations are expected to be impartial but with the dullness of uniform options you steer your guests towards the hidden restaurant you fortuitously discovered. You hope they will unfold their napkins and enjoy it as much as you did.
He may well have observed the famous atheist in the polished steel kitchens of the Royal Society, cooking up traditional fare, steak and kidney pudding, shepherds pie, boiled mutton with gene caper sauce, knowing the palates of his readers will be satisfied with what they had expected, solid and kind to the digestion. Honestly presented certainly, but then the chef has become famous for that, no dressing things up with persuasive parsley.
No foreign muck. It is impossible to identify all the flavours that waft from this multidimensional dish, except to urge a reader to order it. It gives a broad education across both centuries and disciplines, and obscure and classical sources. As importantly, it is enormous fun, spiced and aromatic. Perspectives on pragmatism: Classical, recent, and contemporary. Chalofsky, N. March , Human and organization studies: The discipline of HRD. Corradi, G.
Through the practice lens: Where is the bandwagon of practice-based studies heading?
Management Learning, 41, - Dewey, J. New York, NY : Touchstone. Logic: The theory of inquiry. Reconstruction in philosophy 2nd ed. Boston, MA : Beacon Press. Original work published Google Scholar. Elkjaer, B. Pragmatism: A lived and living philosophy. What can it offer to contemporary organization theory. Research in the Sociology of Organizations, 32, 55 - Google Scholar Crossref.