POL-Sept24

POL-Sept24 - September 24 Legal Realism a criticism of...

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September 24 Legal Realism- a criticism of common law - the claim that judges “discover” the law is untrue, but that judges decide the law based on their internal view of the world - find cases to rationalise decisions Positivistic- the law is “what it is”; as written by the sovereign, legislature or by judges - e.g. inalienable human rights, etc - no laws or rights except those that are written - “positivistic law will defeat legal realism’s criticisms” Aristotle Two concepts of law: 1) Corrective justice -Fix or right a wrong 2) Distributive justice -“Spread things out”, for the greater good -Utilitarianism: about loss spreading, but doesn’t take the person or individual seriously Case Study: Donoghue vs. Stevenson - bottle of ginger beer contained a decomposed snail - opaque bottle - she did not buy the bottle; her friend did - Donoghue sues manufacturer - Manufacturer admitted to the claims, but said none of the claims were illegal (at the time in Scotland there were no precedents for this kind of case) - General statement of law needed to deal with this case and others like it: - “Thou shall not harm my neighbour” - Who is my neighbour? …a foreseeable plaintiff; a reasonable and prudent person could foresee - If the harm or injury is foreseeable, there is a legal relationship. A duty to take care of the foreseeable person (proximate cause, they are causally close) - “should”, “ought”, “reasonable”
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POL-Sept24 - September 24 Legal Realism a criticism of...

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