Allan C. Hutchinson - Böcker

Great cases are those judicial decisions around which the common law develops. This book explores eight exemplary cases from the United Kingdom, the United States and Australia that show the law as a living, breathing and down-the-street experience. It explores the social circumstances in which the cases arose and the ordinary people whose stories influenced and shaped the law as well as the characters and institutions (lawyers, judges and courts) that did much of the heavy lifting. By examining the consequences and fallout of these decisions, the book depicts the common law as an experimental, dynamic, messy, productive, tantalizing and bottom-up process, thereby revealing the diverse and uncoordinated attempts by the courts to adapt the law to changing conditions and shifting demands. Great cases are one way to glimpse the workings of the common law as an untidy but stimulating exercise in human judgment and social accomplishment.

This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up.

This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up.

As a social process that places great stock in its stability and predictability, law does not deal easily or well with change. In a modern world that is in a constant and rapid state of flux, law is being placed under considerable stress in its efforts to fulfill its task as a primary regulator of social and economic behaviour. This challenge is particularly acute in the realm of technology and its profound ramifications for social and economic behaviour. The innovative Techno-Age not only offers fresh ways of handling old problems, but also throws up entirely new problems; traditional ways of thinking about and responding to these old and new problems and their optimal resolution are no longer as tenable as many once thought. One such example is the burgeoning world of cryptocurrencies – this peer-to-peer digital network presents a profound challenge to the status quo of the financial services sector, to the established modes of state-backed fiat currency, and to the regulatory authority and reach of law. Taken together, these related challenges demand the urgent attention of jurists, lawyers and law reformers. It is the future and relevance of legal regulation as much as cryptocurrency that is at stake. This book proposes an approach to regulating cryptocurrency that recognises and retains its innovative and transformative potential, but also identifies and deals with some of its less appealing qualities and implications.

As a social process that places great stock in its stability and predictability, law does not deal easily or well with change. In a modern world that is in a constant and rapid state of flux, law is being placed under considerable stress in its efforts to fulfill its task as a primary regulator of social and economic behaviour. This challenge is particularly acute in the realm of technology and its profound ramifications for social and economic behaviour. The innovative Techno-Age not only offers fresh ways of handling old problems, but also throws up entirely new problems; traditional ways of thinking about and responding to these old and new problems and their optimal resolution are no longer as tenable as many once thought. One such example is the burgeoning world of cryptocurrencies – this peer-to-peer digital network presents a profound challenge to the status quo of the financial services sector, to the established modes of state-backed fiat currency, and to the regulatory authority and reach of law. Taken together, these related challenges demand the urgent attention of jurists, lawyers and law reformers. It is the future and relevance of legal regulation as much as cryptocurrency that is at stake. This book proposes an approach to regulating cryptocurrency that recognises and retains its innovative and transformative potential, but also identifies and deals with some of its less appealing qualities and implications.

Great cases are those judicial decisions around which the common law develops. This book explores eight exemplary cases from the United Kingdom, the United States and Australia that show the law as a living, breathing and down-the-street experience. It explores the social circumstances in which the cases arose and the ordinary people whose stories influenced and shaped the law as well as the characters and institutions (lawyers, judges and courts) that did much of the heavy lifting. By examining the consequences and fallout of these decisions, the book depicts the common law as an experimental, dynamic, messy, productive, tantalizing and bottom-up process, thereby revealing the diverse and uncoordinated attempts by the courts to adapt the law to changing conditions and shifting demands. Great cases are one way to glimpse the workings of the common law as an untidy but stimulating exercise in human judgment and social accomplishment.

Any effort to understand how law works has to take seriously its main players - judges. Like any performance, judging should be evaluated by reference to those who are its best exponents. Not surprisingly, the debate about what makes a 'great judge' is as heated and inconclusive as the debate about the purpose and nature of law itself. History shows that those who are candidates for a judicial hall of fame are game changers who oblige us to rethink what it is to be a good judge. So the best of judges must tread a thin line between modesty and hubris; they must be neither mere umpires nor demigods. The eight judges showcased in this book demonstrate that, if the test of good judging is not about getting it right, but doing it well, then the measure of great judging is about setting new standards for what counts as judging well.

Along with used car dealers and telemarketers, lawyers are considered to be among the least trustworthy of all professionals. If lawyers want more respect, they will have to earn it by reframing their ethical responsibilities. In an original approach to law's moral dilemma, legal theorist Allan C. Hutchinson takes seriously the idea that 'litigation is war'. By drawing an extended analogy with the theory of ethical warfare, he examines the most difficult questions facing practicing lawyers today. Comparing the role of military officers to legal professionals and theories of just peace to legal settlement, Hutchinson outlines a boldly original approach to legal ethics. Fighting Fair's recommendation for a more substantive, honor-based approach to ethics will be a thought-provoking tool for anyone concerned about the moral standing of the legal profession.

'Great cases' are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.

Toward an Informal Account of Legal Interpretation offers a viable account of law, judicial decision-making, and legal interpretation that is as fresh as it is familiar. The author expertly challenges the dominant mode of formalist theorizing and proposes an explanatory account of legal interpretation that can profitably be understood as an 'informal' intervention. Such an informal approach has no truck with either the claims of the formalists (i.e., that law is something separate from ideology) or those of the anti-formalists (i.e., that law is nothing other than ideological posturing). Hutchinson insists that, when understood properly, legal interpretation is an applied exercise in law-and-ideology; it is both constrained and unconstrained in equal measure. In developing this informalist account through a sustained application of the 'no vehicles in the park' rule, this book is wide-ranging in theoretical scope and substance, but also accessible and practical in style.

Along with used car dealers and telemarketers, lawyers are considered to be among the least trustworthy of all professionals. If lawyers want more respect, they will have to earn it by reframing their ethical responsibilities. In an original approach to law's moral dilemma, legal theorist Allan C. Hutchinson takes seriously the idea that 'litigation is war'. By drawing an extended analogy with the theory of ethical warfare, he examines the most difficult questions facing practicing lawyers today. Comparing the role of military officers to legal professionals and theories of just peace to legal settlement, Hutchinson outlines a boldly original approach to legal ethics. Fighting Fair's recommendation for a more substantive, honor-based approach to ethics will be a thought-provoking tool for anyone concerned about the moral standing of the legal profession.

'Great cases' are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.

Any effort to understand how law works has to take seriously its main players - judges. Like any performance, judging should be evaluated by reference to those who are its best exponents. Not surprisingly, the debate about what makes a 'great judge' is as heated and inconclusive as the debate about the purpose and nature of law itself. History shows that those who are candidates for a judicial hall of fame are game changers who oblige us to rethink what it is to be a good judge. So the best of judges must tread a thin line between modesty and hubris; they must be neither mere umpires nor demigods. The eight judges showcased in this book demonstrate that, if the test of good judging is not about getting it right, but doing it well, then the measure of great judging is about setting new standards for what counts as judging well.

Law is best interpreted in the context of the traditions and cultures that have shaped its development, implementation, and acceptance. However, these can never be assessed truly objectively: individual interpreters of legal theory need to reflect on how their own experiences create the framework within which they understand legal concepts. Theory is not separate from practice, but one kind of practice. It is rooted in the world, even if it is not grounded by it. In this highly original volume, Allan C. Hutchinson takes up the challenge of self-reflection about how his upbringing, education, and scholarship contributed to his legal insights and analysis. Through this honest examination of key episodes in his own life and work, Hutchinson produces unique interpretations of fundamental legal concepts. This book is required reading for every lawyer or legal scholar who wants to analyse critically where he or she stands when they practice and study law.

Law is best interpreted in the context of the traditions and cultures that have shaped its development, implementation, and acceptance. However, these can never be assessed truly objectively: individual interpreters of legal theory need to reflect on how their own experiences create the framework within which they understand legal concepts. Theory is not separate from practice, but one kind of practice. It is rooted in the world, even if it is not grounded by it. In this highly original volume, Allan C. Hutchinson takes up the challenge of self-reflection about how his upbringing, education, and scholarship contributed to his legal insights and analysis. Through this honest examination of key episodes in his own life and work, Hutchinson produces unique interpretations of fundamental legal concepts. This book is required reading for every lawyer or legal scholar who wants to analyse critically where he or she stands when they practice and study law.

Toward an Informal Account of Legal Interpretation offers a viable account of law, judicial decision-making, and legal interpretation that is as fresh as it is familiar. The author expertly challenges the dominant mode of formalist theorizing and proposes an explanatory account of legal interpretation that can profitably be understood as an 'informal' intervention. Such an informal approach has no truck with either the claims of the formalists (i.e., that law is something separate from ideology) or those of the anti-formalists (i.e., that law is nothing other than ideological posturing). Hutchinson insists that, when understood properly, legal interpretation is an applied exercise in law-and-ideology; it is both constrained and unconstrained in equal measure. In developing this informalist account through a sustained application of the 'no vehicles in the park' rule, this book is wide-ranging in theoretical scope and substance, but also accessible and practical in style.

As things stand, a commitment to weak democracy and strong constitutionalism ensures that a range of elite groups, actors, and institutions – political, economic, intellectual, and legal – hold considerable sway over constitutional matters, leaving less room for the participation of ordinary people. With the continued primacy of liberal constitutionalism, constitutional law has come to represent and facilitate the centrality of judicial power and authority. In Democracy and Constitutions, Allan C. Hutchinson warns against this deference to a legal elite on questions of constitutional meaning. For Hutchinson, an over-reliance on constitutional law, and a lack of attention to democratic politics, keeps people from influencing the moral and political character of society; it saps civic energies and relegates ordinary people to the sidelines.Engaging and provocative, Democracy and Constitutions charts a course away from the elitism of the present and toward a more democratic future, one that re-balances society’s commitment to both democracy and constitutions. Advocating for a strong democracy and weak constitutionalism, this book places ordinary people at the institutional heart of government and politics, arguing that such a re-calibration is better for democracy and for society.

As things stand, a commitment to weak democracy and strong constitutionalism ensures that a range of elite groups, actors, and institutions – political, economic, intellectual, and legal – hold considerable sway over constitutional matters, leaving less room for the participation of ordinary people. With the continued primacy of liberal constitutionalism, constitutional law has come to represent and facilitate the centrality of judicial power and authority. In Democracy and Constitutions, Allan C. Hutchinson warns against this deference to a legal elite on questions of constitutional meaning. For Hutchinson, an over-reliance on constitutional law, and a lack of attention to democratic politics, keeps people from influencing the moral and political character of society; it saps civic energies and relegates ordinary people to the sidelines.Engaging and provocative, Democracy and Constitutions charts a course away from the elitism of the present and toward a more democratic future, one that re-balances society’s commitment to both democracy and constitutions. Advocating for a strong democracy and weak constitutionalism, this book places ordinary people at the institutional heart of government and politics, arguing that such a re-calibration is better for democracy and for society.

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely. Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely. Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

This book presents a new perspective on the debate around legitimacy, politics and constitutional law in Supreme Courts. Moving away from the troubling perception that Supreme Courts are trampling on the wrong side of the law/politics divide, it accepts and defends the critical claim that constitutional law is intrinsically and inescapably politics: in style, substance and outcome. It explains what is involved in that claim and recommends a more nuanced and compelling account than it is caricatured to be. The book proceeds to demonstrate how the legal and judicial process can proceed if the law-is-politics critique is taken seriously. Insisting that it cannot be business as usual, the author offers a series of constructive proposals about how constitutional law and judicial decision-making can continue in anything like their present format and style. Recognising that a more radical approach could be taken to the way in which democracy might re-organise, the book runs with the idea that it is possible to incorporate and accommodate the law-is-politics argument within a governmental system of constitutional democracy that resembles closely what now occurs. In that sense, the book is both critical and constructive as well as principled and pragmatic.

This book presents a new perspective on the debate around legitimacy, politics and constitutional law in Supreme Courts. Moving away from the troubling perception that Supreme Courts are trampling on the wrong side of the law/politics divide, it accepts and defends the critical claim that constitutional law is intrinsically and inescapably politics: in style, substance and outcome. It explains what is involved in that claim and recommends a more nuanced and compelling account than it is caricatured to be. The book proceeds to demonstrate how the legal and judicial process can proceed if the law-is-politics critique is taken seriously. Insisting that it cannot be business as usual, the author offers a series of constructive proposals about how constitutional law and judicial decision-making can continue in anything like their present format and style. Recognising that a more radical approach could be taken to the way in which democracy might re-organise, the book runs with the idea that it is possible to incorporate and accommodate the law-is-politics argument within a governmental system of constitutional democracy that resembles closely what now occurs. In that sense, the book is both critical and constructive as well as principled and pragmatic.