Principle, Practice, and Precedent: Vindicating Justice, According to Law

31 Pages Posted: 2 Nov 2017 Last revised: 9 Feb 2018

See all articles by T. R. S. Allan

T. R. S. Allan

University of Cambridge - Faculty of Law

Date Written: October 1, 2017

Abstract

The idea of justice according to law is exemplified by common law thought, in which principle and precedent are interlocked and interdependent. The law is constituted neither by its socially authoritative sources, regarded as social fact, nor by moral judgment about their *effects*. It is a moral construction of legal practice, interpreting its various rules and arrangements as parts of an integrated scheme of justice. Justice is sought by adherence to practice, understood in the light of the ideals it embodies on correct analysis. Legal obligations are moral obligations and legal reasoning is moral reasoning; law and morality should be conceived as mutually supporting parts of a unified normative domain. The requirements of justice are discerned, in large part, by exploration of the legal tradition in which particular issues arise for decision. It is an internal, interpretative inquiry, drawing on the moral resources of that tradition. Conflict between political ideals must be resolved internally as part of that inquiry; we are obligated to obey the law as correctly determined. These points are reinforced by critique of work by Dworkin, Greenberg, Hershovitz, and Waldron.

Keywords: Legal principle, legal practice, judicial precedent, common law adjudication, justice according to law, legal obligation, interpretative legal reasoning, Greenberg’s moral impact theory, Hershovitz

Suggested Citation

Allan, T. R. S., Principle, Practice, and Precedent: Vindicating Justice, According to Law (October 1, 2017). University of Cambridge Faculty of Law Research Paper No. 48/2017. Available at SSRN: https://ssrn.com/abstract=3063476 or http://dx.doi.org/10.2139/ssrn.3063476

T. R. S. Allan (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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