The Nature and Authority of Precedent (Cambridge UP, 2008).
Frederick
Pollock and the English Juristic Tradition provides the first detailed
historical account of one of England's great jurists.
Neil Duxbury examines how precedents
constrain legal decision-makers and how legal
decision-makers relax and avoid those constraints. There is
no single principle or theory which explains the authority
of precedent but rather a number of arguments which raise
rebuttable presumptions in favour of precedent-following.
This book examines the force and the limitations of these
arguments and shows that although the principal requirement
of the doctrine of precedent is that courts respect earlier
judicial decisions on materially identical facts, the
doctrine also requires courts to depart from such decisions
when following them would perpetuate legal error or
injustice. Not only do judicial precedents not ‘bind’ judges
in the classical-positivist sense, but, were they to do so,
they would be ill suited to common-law decision-making.
Combining historical inquiry and philosophical analysis,
this book will assist anyone seeking to understand how
precedent operates as a common-law doctrine.
click here for publisher's site
Frederick Pollock and the English Juristic Tradition (Oxford UP,
2004).
Frederick
Pollock and the English Juristic Tradition provides the first detailed
historical account of one of England's great jurists.
Until the later decades of the twentieth century, law
developed little as an academic discipline in England. One
exceptional period of intellectual growth, however, was the
late-Victorian era, when a number of brilliant and now
celebrated jurists produced works and devised projects which
had a crucial impact on the development of English legal
thought. Among this band of jurists was the great legal
treatise writer, historian, and editor, Frederick Pollock.
Compared with many of his contemporaries, however, Pollock
has been largely overlooked by modern legal historians.
Drawing upon a vast array of sources, Neil Duxbury offers a detailed
picture of this enigmatic figure, examining 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.
click here for publisher's site
Jurists and Judges (Oxford: Hart, 2001)
Jurists
and Judges examines the nature of academic influence,and particularly the
influence of juristic commentary on judicial decision-making. Focusing on
three legal systems, its author argues that inter-jurisdictional comparisons
of juristic influence are often simplistic and inattentive to problems of
incommensurability. The centrepiece of the study is a detailed chapter
offering a nuanced history of juristic influence in England. All academic
lawyers who reflect upon the history and objectives of their profession —
who, in other words, wonder what it is that they are about — will profit
from reading this most informative and engaging book.
click here for publisher's site
Random Justice (Oxford UP, 1999)
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.
click here for publisher's site
Patterns of American Jurisprudence (Oxford UP, 1995)
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.
click here for publisher's site
"Kelsen's Endgame" (2008) 61 Cambridge Law Journal
51.
‘Jhering’s Philosophy of Authority’ (2007) 27 Oxford Journal of Legal
Studies 23-47.
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
click
here for access via Westlaw [ON CAMPUS]
click
here for access via Westlaw [OFF CAMPUS]
‘English Jurisprudence between Austin and Hart’ (2005) 91
Virginia Law
Review 1-91.
‘Why English Jurisprudence is Analytical’ (2004) 57 Current Legal
Problems 1-51.
‘A Century of Legal Studies’ in The Oxford Handbook of Legal Studies,
ed. P. Cane and M. Tushnet (Oxford: Oxford UP, 2003), 950-974.
This
innovative volume in the prestigious series of Oxford Handbooks provides a
comprehensive overview of law and legal scholarship at the dawn of the 21st
century. Through 43 essays by leading legal scholars based in USA, the UK,
Australia, New Zealand, Canada and Germany it will provide a varied and
stimulating set of road maps to guide readers through the increasingly large
and conceptually sophisticated body of legal scholarship.
click
here for publisher's site
‘Signalling and Social Norms’ (2001) 21 Oxford Journal of Legal Studies
719-736.
‘Law and Prediction in Realist Jurisprudence’ (2001) 87 Archiv für Rechts-
und Sozialphilosophie 402-418.
‘When We Were Young: Notes in the Law Quarterly Review, 1885-1925’ (2000)
116 Law Quarterly Review
474-503.
