Legal_Method Notes - - Legal Advisors - Barristers 1...

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- Legal Advisors - Barristers - journalists - sociologist Lecture Notes on Legal Methods (30/10/03) - Is there such a thing as legal science? Does legal science transcend national legal systems? SECTION ONE: Legal Methods 1) Rules of Statutory Interpretation: 1. The Literal Rule 2. The Golden Rule 3. The Mischief Rule 4. The Purposive Approach 5. Integrated 2) The Doctrine of Precedent or Stare Decisis Ratio decidendi and obiter dictum Definition of ratio decidendi: “Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.” Binding precedents The following constitute binding precedents: 1. The ratio of a decision of a court in a previous case is binding on lower courts in the same court hierarchy. 2. Some courts are bound by their own previous rationes. Persuasive precedents There can be said to be three kinds of persuasive precedents: 1. The ratio of the decision of a lower court [or sometimes the same court] in the same court hierarchy. 2. The ratio of the decision of any court in another court hierarchy. 3. Obiter dicta. 3) Coherence According to Ken Kress the coherence theories of law have a special claim on us: “The idea that law is a seamless web, that it is holistic, that precedents have a gravitational force throughout the law, that argument by analogy has an especial significance in law, and the principle that all are equal under the law, provide strong prima facie support for a coherence theory of law”. 4) What is the Relationship between Legal Method and Coherence? SECTION TWO: Previous discussions on the nature of scientific knowledge See Geoffrey Samuel, Epistemology and Method in Law (Aldershot, Ashgate, 2002) - The focus of legal method is narrowly judge orientated, but most practising lawyers and legal scholars readily admit that much of law in practice is never brought before a court or gets near a judge. - What is law: is it the law on the books or the law in action? - What is law: from whose point of view are we to consider the law - The German legal scientist views the law as a system of principles and axioms. Legal knowledge is for such a jurist a matter of concise propositions systematically arranged in an abstract world of concepts. - Oliver Wendall Holmes: If we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions (from principles or ethics), but that he does want to know what the Massachusetts or English Courts are likely to do. - Equally the knowledge structure of a policeman and the prison officials will probably be different from that of the judges - The point to be stressed here is that there is no single idea of what it is to have legal knowledge .
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This note was uploaded on 07/01/2011 for the course CRJ 235 taught by Professor Temple during the Spring '11 term at College of Southern Nevada.

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Legal_Method Notes - - Legal Advisors - Barristers 1...

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