An Introduction to An Introduction to the Law and its the Law and its

SourcesSourcesSusan CarterSusan Carter

Legal sense v ‘Common Legal sense v ‘Common sense’sense’

Pepper Finance Corporation Pepper Finance Corporation v v WilliamsWilliams [2008] NSWSC 4 [2008] NSWSC 4

Law v Politics ““Judges are bound by legal texts and their Judges are bound by legal texts and their

own prior precedents to a degree that own prior precedents to a degree that political actors are not. And crucially, political actors are not. And crucially, judges have an obligation to explain their judges have an obligation to explain their results as the product of legal judgement.”results as the product of legal judgement.”

Michael C. DorfMichael C. Dorf

To remember:To remember: Law is both a body of knowledge and a way of Law is both a body of knowledge and a way of

thinking about that knowledge: it is important to thinking about that knowledge: it is important to master both. master both.

You are expected to know not just what the law is, You are expected to know not just what the law is, but why. Anytime you think about the answer to but why. Anytime you think about the answer to a legal question – ask yourself, why do I know that a legal question – ask yourself, why do I know that this is the answer? What is my legal source or this is the answer? What is my legal source or authority? authority?

You may disagree with some or indeed all of the You may disagree with some or indeed all of the substantive law which you are studying. But you substantive law which you are studying. But you cannot change it simply by disagreeing with it. If cannot change it simply by disagreeing with it. If you want to change the law – that is turn your you want to change the law – that is turn your policy into law – you need to understand the law policy into law – you need to understand the law and its processes first. and its processes first.

Law v PolicyLaw v Policy““Courts and judges are not meant to Courts and judges are not meant to have agendas, and judges are not meant have agendas, and judges are not meant to seek popularity. They are expected to to seek popularity. They are expected to administer justice according to law, administer justice according to law, regardless of the consequences for their regardless of the consequences for their approval ratings. A judicial decision that approval ratings. A judicial decision that pleases one side or the other of a pleases one side or the other of a partisan conflict will always attract partisan conflict will always attract applause or blame from some of the applause or blame from some of the partisans, but people expect judges to partisans, but people expect judges to attend to the task of administering attend to the task of administering justice and to leave politics to justice and to leave politics to politicianspoliticians..””

Gleeson CJGleeson CJ

Law v PoliticsLaw v Politics

““Behind the legal issues that the Behind the legal issues that the Court must decide there often are Court must decide there often are intensely political concerns. Yet intensely political concerns. Yet the Court is expected to resolve the Court is expected to resolve those issues according to law, and those issues according to law, and adhering to legal methodology. We adhering to legal methodology. We expect judges to decide issues expect judges to decide issues after hearing argument in specific after hearing argument in specific cases.”cases.”

Gleeson CJGleeson CJ

Legal approach v personal opinionLegal approach v personal opinion

““In Australia, one of the In Australia, one of the responsibilities of the High Court is responsibilities of the High Court is to decide the constitutional validity to decide the constitutional validity of federal or State legislation. The of federal or State legislation. The public would be outraged if the public would be outraged if the Justices advanced, as a reason for Justices advanced, as a reason for holding legislation to be valid or holding legislation to be valid or invalid, their approval or invalid, their approval or disapproval of the policy of the disapproval of the policy of the legislation.”legislation.”

Gleeson CJGleeson CJ

Latham CJ, First Uniform Tax caseLatham CJ, First Uniform Tax case "[T]he controversy before the Court is a legal "[T]he controversy before the Court is a legal controversy, not a political controversy. It is not controversy, not a political controversy. It is not for this or any court to prescribe policy or to seek for this or any court to prescribe policy or to seek to give effect to any views or opinions upon to give effect to any views or opinions upon policy. We have nothing to do with the wisdom or policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for expediency of legislation. Such questions are for Parliaments and the people ... The Court must Parliaments and the people ... The Court must consider and deal with ... [the] legal contention. consider and deal with ... [the] legal contention. But the Court is not authorized to consider But the Court is not authorized to consider whether the Acts are fair and just as between whether the Acts are fair and just as between States - whether some States are being forced, States - whether some States are being forced, by a political combination against them, to pay by a political combination against them, to pay an undue share of Commonwealth expenditure or an undue share of Commonwealth expenditure or to provide money which other States ought fairly to provide money which other States ought fairly to provide. These are arguments to be used in to provide. These are arguments to be used in Parliament and before the people. They raiseParliament and before the people. They raisequestions of policy which it is not for the Court to questions of policy which it is not for the Court to determine or even to consider."determine or even to consider."

Statute Law and Case Statute Law and Case LawLaw

Sources of lawSources of law

• Statute –laws Statute –laws made by made by ParliamentParliament

• Case law – laws made by judges

Statutes v Case lawStatutes v Case law

Statutes operate from the Statutes operate from the general to the particular, general to the particular, whereas cases operate whereas cases operate from the particular to the from the particular to the general.general.

CITATION OF STATUTESCITATION OF STATUTES

• Statutes are always cited:Statutes are always cited:Title/YearTitle/Year/(Jurisdiction)/(Jurisdiction)

• Australian Sports Drug Agency Australian Sports Drug Agency Act 1990 Act 1990 (Cth)(Cth)

• Exotic Diseases of Animals Act Exotic Diseases of Animals Act 1993 1993 (WA) s6(WA) s6

• Methodist Church of Samoa in Methodist Church of Samoa in Australia Property Trust Act Australia Property Trust Act 1998 1998 (NSW) s4(2)(d)(NSW) s4(2)(d)

STRUCTURE OF AN ACTSTRUCTURE OF AN ACT• NUMBERNUMBER• DATEDATE• LONG TITLELONG TITLE• SHORT TITLESHORT TITLE• PREAMBLE (OR PURPOSE CLAUSES PREAMBLE (OR PURPOSE CLAUSES

INSTEAD OF A PREAMBLE)INSTEAD OF A PREAMBLE)• Preamble always starts with Preamble always starts with

“Whereas”“Whereas”• TABLE OF CONTENTSTABLE OF CONTENTS• PARTS OR CHAPTERS, DIVISIONS PARTS OR CHAPTERS, DIVISIONS

AND HEADINGSAND HEADINGS

SYDNEY TURF CLUB ACT 1943 SYDNEY TURF CLUB ACT 1943 As at 13 November 2007 As at 13 November 2007 Act 22 of 1943 Act 22 of 1943 TABLE OF PROVISIONSTABLE OF PROVISIONS Long TitleLong Title An Act to constitute and incorporate a Sydney Turf An Act to constitute and incorporate a Sydney Turf

Club and to declare its objects, functions and Club and to declare its objects, functions and powers; to provide for the acquisition by that club powers; to provide for the acquisition by that club of certain racecourses and the equipment thereof; of certain racecourses and the equipment thereof; to provide for the discontinuance of the licences of to provide for the discontinuance of the licences of certain racecourses; to provide for the certain racecourses; to provide for the establishment of a Racing Compensation Fund in establishment of a Racing Compensation Fund in the Treasury; to amend the the Treasury; to amend the Gaming and Betting Act Gaming and Betting Act 1912 1912 and certain other Acts; and for purposes and certain other Acts; and for purposes connected therewith. connected therewith.

PART 1 - PRELIMINARYPART 1 - PRELIMINARY 1 Name of Act and commencement 1 Name of Act and commencement (1) This Act may be cited as the (1) This Act may be cited as the Sydney Turf Club Sydney Turf Club Act 1943 Act 1943 . . (2) This Act shall commence on a day to be (2) This Act shall commence on a day to be appointed by the Governor and notified by appointed by the Governor and notified by proclamation published in the Gazette. proclamation published in the Gazette.

2.2. (Repealed) (Repealed) 3.3. DefinitionsDefinitions3A. Notes . Notes PART 2 - SYDNEY TURF CLUBPART 2 - SYDNEY TURF CLUB Division Division

1 - Incorporation and constitution1 - Incorporation and constitution 4. Constitution etc . Constitution etc 5. Application of income etc . Application of income etc 6. First members, directors and auditors. First members, directors and auditors

Division 2 - Objects, functions and Division 2 - Objects, functions and powerspowers

7. Objects and functions of Club. Objects and functions of Club8. Acting secretary . Acting secretary Division 3 - FinancialDivision 3 - Financial9. Temporary accommodation . Temporary accommodation 10. Power to borrow . Power to borrow 11. Insurance, and payments out of funds. Insurance, and payments out of fundsDivision 4 - (Repealed)Division 4 - (Repealed) NoneNone PART 3 - RACING COMPENSATION PART 3 - RACING COMPENSATION

FUNDFUND 15-18. (Repealed) 15-18. (Repealed)

PART 4 - GENERALPART 4 - GENERAL 19. Members defaulting in payment of bets . Members defaulting in payment of bets not eligible to continue as members not eligible to continue as members 20. Rights of member personal . Rights of member personal 21. By-laws . By-laws 22. Commencement of by-laws . Commencement of by-laws 23. Public notification of by-laws . Public notification of by-laws 24. Offences etc . Offences etc 25. Exclusion of undesirable persons . Exclusion of undesirable persons 26. Directors may fix tolls and charges. Directors may fix tolls and charges27. Power to let lands, buildings or tolls . Power to let lands, buildings or tolls 28. Inspection 28. Inspection

29. Club to repair etc 29. Club to repair etc 30. Indemnity 30. Indemnity 3131. (Repealed) . (Repealed) 32. Regulations 32. Regulations SCHEDULE 1 SCHEDULE 1 Schedule 2Schedule 2 (Repealed) (Repealed) SCHEDULE 3 SCHEDULE 3

Three good sites for finding Three good sites for finding legislation:legislation:

http://http://www.comlaw.gov.auwww.comlaw.gov.au

http://www.austlii.edu.auhttp://www.austlii.edu.au

www.legislation.nsw.gov.auwww.legislation.nsw.gov.au

The The SectionSection is the most is the most important part of an Actimportant part of an Act

Sections are sub-divided into:Sections are sub-divided into:SECTION SECTION s1s1SUB-SECTIONSUB-SECTION (2)(2)PARAGRAPHPARAGRAPH (a)(a)SUB-PARAGRAPHSUB-PARAGRAPH (v)(v)

Australian Consumer LawAustralian Consumer Law- s18- s18

Misleading or deceptive conductMisleading or deceptive conduct                          

(1)  A person shall not, in trade or (1)  A person shall not, in trade or commerce, engage in conduct that is commerce, engage in conduct that is misleading or deceptive or is likely to misleading or deceptive or is likely to mislead or deceive. mislead or deceive.

Elements of s18(1)Elements of s18(1)

• PersonPerson• Trade or commerceTrade or commerce• Engage in conductEngage in conduct• Misleading or deceptiveMisleading or deceptive

Case lawCase law Decision: relevant only to the parties: relevant only to the parties Ratio decidendi

: : reason for decision for decision : this answers the legal : this answers the legal question for decisionquestion for decision : creates the : creates the binding law

CASE CITATIONCASE CITATION

Plaintiff’s Name v Defendant’s NamePlaintiff’s Name v Defendant’s Name (Civil case)(Civil case)

ORORR v Person charged with R v Person charged with

offence/Defendant or Accusedoffence/Defendant or Accused(Criminal case)(Criminal case)

THENTHEN

• YEAR YEAR in which the case was in which the case was decided (in square or round decided (in square or round brackets depending on the brackets depending on the reporting system used)reporting system used)

• VOLUME VOLUME in which the case has in which the case has been reportedbeen reported

• ABBREVIATION ABBREVIATION of the particular of the particular reportreport

• PAGE NUMBER PAGE NUMBER at which the at which the report begins, andreport begins, and

• PAGE NUMBER PAGE NUMBER from which you from which you are quoting (and name of judge)are quoting (and name of judge)

ExamplesExamples::

• Behrens v Bertram Mills Circus Behrens v Bertram Mills Circus Ltd Ltd [1957] 2QB 1[1957] 2QB 1

• Australian Broadcasting Australian Broadcasting Corporation v Lenah Game Meats Corporation v Lenah Game Meats Pty Ltd Pty Ltd (2002) 208 CLR 199(2002) 208 CLR 199

• R v Brown R v Brown [1994] 1 AC 212[1994] 1 AC 212

VocabularyVocabulary

Ratio decidendiRatio decidendi Rationes decidendiRationes decidendi

Obiter dictaObiter dicta Obiter dictumObiter dictum

MaryMary v v TomTomMary and Tom are neighbours. Mary Mary and Tom are neighbours. Mary erects a dividing fence between the erects a dividing fence between the properties made out of cedar inlaid with properties made out of cedar inlaid with ivory. She then seeks to recover half of ivory. She then seeks to recover half of the cost of the fence from her neighbour the cost of the fence from her neighbour Tom pursuant to the Dividing Fences Act. Tom pursuant to the Dividing Fences Act. Tom declines to pay, as he didn’t want a Tom declines to pay, as he didn’t want a fence at all, certainly not a cedar fence as fence at all, certainly not a cedar fence as it clashes with his Tuscan landscaping, and it clashes with his Tuscan landscaping, and doesn’t want to pay for the ivory inlays as doesn’t want to pay for the ivory inlays as they are all on Mary’s side. Mary sues they are all on Mary’s side. Mary sues Tom. Tom defends the suit claiming that Tom. Tom defends the suit claiming that the fence Mary erected is not a ‘dividing the fence Mary erected is not a ‘dividing fence’ within the meaning of the Act.fence’ within the meaning of the Act.

Fact or law?Fact or law?

The best way to tell the The best way to tell the difference is to ask yourself, difference is to ask yourself, could a witness give evidence to could a witness give evidence to answer this question?answer this question?

If yes – it is an issue of fact.If yes – it is an issue of fact. If no – it is an issue of law.If no – it is an issue of law.

1.21.2 What is law?What is law?

The Scope of JurisprudenceThe Scope of Jurisprudence

What is ‘law’?What is ‘law’?Osborn’s Concise Law Dictionary tells us that “law” means:Osborn’s Concise Law Dictionary tells us that “law” means:

““an obligatory rule of conduct. The an obligatory rule of conduct. The commands of him or them that have commands of him or them that have coercive power (Hobbes). A law is a coercive power (Hobbes). A law is a rule of conduct imposed and enforced rule of conduct imposed and enforced by the Sovereign (Austin). But the law by the Sovereign (Austin). But the law is the body of principles recognised is the body of principles recognised and applied by the State in the and applied by the State in the administration of justice (Salmond). administration of justice (Salmond). Blackstone, however, maintained that Blackstone, however, maintained that a rule of law made on a pre-existing a rule of law made on a pre-existing custom exists as positive law apart custom exists as positive law apart from the legislator or judge”from the legislator or judge”

Four answers:Four answers:NATURAL LAWNATURAL LAWPOSITIVISMPOSITIVISMCOMMON LAWCOMMON LAWLEGAL REALISMLEGAL REALISM

NATURAL LAWNATURAL LAW AristotleAristotle CiceroCicero St Thomas AquinasSt Thomas Aquinas FinnisFinnis Dominated Western thought until the Dominated Western thought until the

18th Century18th Century Assertions about natural law were often Assertions about natural law were often

the basis of the argument for individual the basis of the argument for individual or human rights and for imposing or human rights and for imposing limitations on governmentlimitations on government

Groundwork for the principles of Groundwork for the principles of international lawinternational law

Cicero, Cicero, De Re PublicaDe Re Publica““True law is right reason in agreement with nature; it True law is right reason in agreement with nature; it is of universal application, unchanging and is of universal application, unchanging and everlasting. It summons to duty by its commands, and everlasting. It summons to duty by its commands, and averts from wrongdoing by its prohibitions….It is a sin averts from wrongdoing by its prohibitions….It is a sin to try to alter this law, nor is it allowable to repeal any to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely.We part of it, and it is impossible to abolish it entirely.We cannot be freed from its obligations by Senate or cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws different laws at Rome and at Athens, or different laws now and in the future, but one eternal and now and in the future, but one eternal and unchangeable law will be valid for all nations and all unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is suffer the worst penalties, even if he escapes what is commonly considered punishment”commonly considered punishment”

Thomas Aquinas: 4 types of lawThomas Aquinas: 4 types of law1. The Eternal – God’s plan for the – God’s plan for the

universeuniverse2. The Natural- that part of the that part of the

eternal law which is eternal law which is discoverable by reason and discoverable by reason and which is to be found in the which is to be found in the human mindhuman mind

3. The Human - the law created by - the law created by humans on the basis of natural humans on the basis of natural reason, (or positive law) and reason, (or positive law) and

4. The Divine – that law revealed – that law revealed in scripture.in scripture.

The problem of “unjust laws”The problem of “unjust laws” Lex iniusta non est lex: Lex iniusta non est lex: an unjust law an unjust law

is not a law is not a law A just law :A just law :

is consistent with the is consistent with the requirements of natural lawrequirements of natural law

Does not exceed the authority of Does not exceed the authority of the law maker the law maker

Imposes burdens on citizens fairly. Imposes burdens on citizens fairly.

Finnis’ basic goodsFinnis’ basic goods

1.1. life (and health)life (and health)2.2. knowledgeknowledge3.3. play play 4.4. aesthetic experienceaesthetic experience5.5. sociability (friendship)sociability (friendship)6.6. practical reasonablenesspractical reasonableness7.7. religionreligion

POSITIVISMPOSITIVISM

Jeremy BenthamJeremy Bentham John AustinJohn Austin HLA HartHLA Hart Very influential over last 200 years Very influential over last 200 years

and in current legal thinking; a and in current legal thinking; a critique of common law and natural critique of common law and natural law thinkinglaw thinking

PositivismPositivism Is and ought or is and should are separate Is and ought or is and should are separate

questions.questions. ““The existence of law is one thing; its The existence of law is one thing; its

merit or demerit is another. Whether it be merit or demerit is another. Whether it be or be not is one enquiry; whether it be or or be not is one enquiry; whether it be or be not conformable to an assumed be not conformable to an assumed standard, is a different enquiry. A law, standard, is a different enquiry. A law, which actually exists, is a law, though we which actually exists, is a law, though we happen to dislike it, or though it vary from happen to dislike it, or though it vary from the text, by which we regulate our the text, by which we regulate our approbation and disapprobation.” approbation and disapprobation.” John AustinJohn Austin

PositivismPositivism Legal systems are created by Legal systems are created by

(posited) by people rather than (posited) by people rather than having some natural or metaphysical having some natural or metaphysical existenceexistence..

Law as a command: AustinLaw as a command: Austin Features of a command:Features of a command:

a wish or desire of one rational a wish or desire of one rational being directed to anotherbeing directed to another

this intention is communicatedthis intention is communicated if the command is not obeyed a if the command is not obeyed a

punishment of some sort will resultpunishment of some sort will result

Command theoryCommand theory

Austin: A law is a general Austin: A law is a general command made by a sovereigncommand made by a sovereign

Problem: how could sovereigns – Problem: how could sovereigns – who make commands – be who make commands – be subject to the rule of law.subject to the rule of law.

Rejected by HLA HartRejected by HLA Hart

HLA HartHLA Hart Laws exist in two groups:Laws exist in two groups:

primary rules (substantive law – primary rules (substantive law – eg road rules)eg road rules)

Secondary rules (rules about rules Secondary rules (rules about rules – eg constitutions, procedural – eg constitutions, procedural rules.)rules.)

““rule of recognition”.rule of recognition”.

COMMON LAWCOMMON LAW

Not necessarily what we think of as Not necessarily what we think of as common law today, but the foundational common law today, but the foundational ideas of much of common law thought.ideas of much of common law thought.

Common law theory flowered in 16-18th Common law theory flowered in 16-18th centuries. centuries.

CokeCoke BlackstoneBlackstone HaleHale Predominantly EnglishPredominantly English

Common LawCommon Law Law is not something made either by king, Law is not something made either by king,

parliament or judges, but rather is the parliament or judges, but rather is the expression of a deeper reality which is expression of a deeper reality which is merely discovered and publicly declared by merely discovered and publicly declared by them. (them. (cfcf Trigwell’s caseTrigwell’s case))

PrecedentPrecedent Written record, or reporting of lawWritten record, or reporting of law Judges declare law, they do not make lawJudges declare law, they do not make law Individual judge is unimportant – “oracle” of the Individual judge is unimportant – “oracle” of the

lawlaw Law as artificial reason which must be learnedLaw as artificial reason which must be learned

BlackstoneBlackstone““judges…are the depositaries of the law; the judges…are the depositaries of the law; the living oracles, who must decide in all cases of living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide doubt, and who are bound by an oath to decide according to the law of the land. Their according to the law of the land. Their knowledge of that law is derived from knowledge of that law is derived from experience and study;…and from being long experience and study;…and from being long personally accustomed to the judicial decisions personally accustomed to the judicial decisions of their predecessors. And indeed these judicial of their predecessors. And indeed these judicial decisions are the principal and most decisions are the principal and most authoritative evidence….The judgement itself authoritative evidence….The judgement itself [is] carefully registered and preserved, under [is] carefully registered and preserved, under the name of records, in public repositories set the name of records, in public repositories set apart for that particular purpose; and to them apart for that particular purpose; and to them frequent recourse is had, when any critical frequent recourse is had, when any critical question arises, in the determination of which question arises, in the determination of which former precedents may give light or assistance…former precedents may give light or assistance…For it is an established rule to abide by former For it is an established rule to abide by former precedents, where the same points come again precedents, where the same points come again in litigation; as well to keep the scale of justice in litigation; as well to keep the scale of justice even and steady, and not liable to waver with even and steady, and not liable to waver with every new judge’s opinion”every new judge’s opinion”

Prohibitions del RoyProhibitions del Roy : Coke : Coke“ “ A controversy of land between parties was heard by the King, A controversy of land between parties was heard by the King,

and sentence given, which was repealed, for this, that it did and sentence given, which was repealed, for this, that it did belong to the common law: then the King said, that he belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and thought the law was founded upon reason, and that he and others had reason, as well as the Judges; to which it was others had reason, as well as the Judges; to which it was answered by me, that true it was, that God had endowed his answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to inheritance, or goods, or fortunes of his subjects, are not to be decided by natural law reason, but by the artificial reason be decided by natural law reason, but by the artificial reason and judgement of law, which law is an act which requires long and judgement of law, which law is an act which requires long study and experience, before that a man can attain to the study and experience, before that a man can attain to the cognizance of it; and that the law was the golden met-wand cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects; and which and measure to try the causes of the subjects; and which protected his Majesty in safety and peace: with which the protected his Majesty in safety and peace: with which the King was greatly offended and said, that then he should be King was greatly offended and said, that then he should be under the law, which was treason to affirm, as he said: to under the law, which was treason to affirm, as he said: to which I said, that Bracton saith, quod Rex non debet esse sub which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King is under no man, homine, sed sub Deo et lege [that the King is under no man, but under God and the law].but under God and the law].

Common LawCommon Law Change is possible – through the Change is possible – through the

incremental development of the incremental development of the common law by accumulated common law by accumulated decisions, but a law which has stood decisions, but a law which has stood the test of time is to be preferred to the test of time is to be preferred to one which has simply been devised in one which has simply been devised in a particular era.a particular era.

Law organically connected to the Law organically connected to the people it serves through custom and people it serves through custom and traditiontradition

LEGAL REALISMLEGAL REALISM

Oliver Wendell Holmes (laid groundwork)Oliver Wendell Holmes (laid groundwork) ““The prophecies of what the courts will The prophecies of what the courts will

do in fact, and nothing more pretentious, do in fact, and nothing more pretentious, are what I mean by law” (This is the are what I mean by law” (This is the question which the bad man wants question which the bad man wants answered.)answered.)

John Dewey (Dewey decimal system)John Dewey (Dewey decimal system) Karl LlewellynKarl Llewellyn Jerome FrankJerome Frank 20th Century20th Century

Legal RealismLegal Realism The life of the law does not exist in the The life of the law does not exist in the

application of pre-existing rules to concrete application of pre-existing rules to concrete cases, but rather in the development through cases, but rather in the development through experience of legal principles.experience of legal principles.

The law then, is what the courts do, not what The law then, is what the courts do, not what they did two centuries ago (except insofar as it they did two centuries ago (except insofar as it is a guide to what they will do now), or an is a guide to what they will do now), or an abstract set of doctrines.abstract set of doctrines.

For realists, law is an inherently practical For realists, law is an inherently practical activity, which must be associated with the real activity, which must be associated with the real world, as it is something which has a practical world, as it is something which has a practical effect in the concrete world, and is not merely a effect in the concrete world, and is not merely a body of abstract rules and doctrines.body of abstract rules and doctrines.

Karl Llewellyn:Karl Llewellyn:

““They view rules, they view law, They view rules, they view law, as means to ends; as only means as means to ends; as only means to ends; as having meaning only to ends; as having meaning only insofar as they are means to insofar as they are means to ends. They suspect, with law ends. They suspect, with law moving slowly and the life around moving slowly and the life around them moving fast, that some law them moving fast, that some law may have gotten out of joint with may have gotten out of joint with life.”life.”