Neil Duxbury

Random justice: on lotteries and legal decision-making

Introduction 1. The Spectre of Chance 2. Contextualizing the Lottery 3. Relying on Luck 4. Dicing with Justice 5. Lotteries Within Legal Frameworks Conclusion Index

KELSEN'S ENDGAME

Having supposed a super-norm we may indeed suppose another still superior norm, and so on ad infinitum , like the elephants and tortoise which have been supposed to support the earth. Clearly there is no help in that.

Lord Wright and innovative traditionalism

This study presents the mid-twentieth-century English lord of appeal, Lord Wright, as an innovative traditionalist judge. Judges have a duty to be creative, Wright believed, but only within the framework of existing legal authority. Wright explained his innovative traditionalist perspective in relation to precedent, public policy, and legislation, and he illustrated his perspective particularly by way of contributions to decisions on worker compensation, commercial contracts, restitution, and international criminal law. He was not always a bold judge, as is especially evident from his contribution to Liversidge v. Anderson. But his efforts to develop the law without undermining established precedents and statutory authority could be subtly effective. In contract and tort decisions, he consistently argued that personal liability should attach only to outcomes that could reasonably have been expected to come about. He was realistic, and believed courts must be realistic, about the tendency of the business world to be guided primarily by its own norms. He incisively criticized implied contract theory and advanced a conception of unjust enrichment that, in England, was considerably ahead of its time. In employment law, he added a twist to freedom-of-contract reasoning, arguing that if it is permissible for individuals to use their economic advantage to impose contractual terms on weaker parties, then it should also be permissible for those parties to combine and gain the upper hand. After World War II, he argued that the positive laws necessary for punishing war criminals already existed. This study draws these arguments together in an effort to capture Wrights judicial style and to show that some of his contributions to legal thought and doctrine run deep and are historically significant.

Custom as law in English law

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

Acquisitive prescription and fundamental rights

Various seventeenth-century parliamentarians resorted to the concept of acquisitive prescription when denouncing irresponsible use of the royal prerogative. Often, the concept was invoked to convey nothing more than that a custom had existed since time immemorial. Yet sometimes the concept was used in its legal sense – to denote the acquisition of a right (as if someone with the authority to grant that right had done so) by virtue of some instance of long and uninterrupted enjoyment over a period of time. This article considers the application of acquisitive prescription, a doctrine rooted in the medieval law of land obligations, in Stuart constitutional discourse.

The Law of the Land

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.