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Juridical Individualism, State Power And Legal Reasoning

  • Alan W. Norrie
Chapter
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Part of the Law and Philosophy Library book series (LAPS, volume 12)

Abstract

The last chapter concluded by taking the discussion of legal ideology and the first antithesis of law back from the philosophy of law and punishment to the practice of law itself through an analysis of legal doctrine and the excusing conditions. In this chapter, I pursue the same strategy in relation to the law’s second antithesis by means of an analysis of recent leading English cases concerning questions of criminal responsibility and punishment. It will be my argument that the second antithesis, between individual right and state power, whose philosophical development is charted in Chapters V and VI, is also instantiated within legal doctrine itself.

Keywords

Legal Reasoning Criminal Responsibility Specific Intent Legal Doctrine Basic Intent 
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Footnotes

  1. 1.
    D.N. MacCormick, Legal Reasoning and Legal Theory (Oxford, 1978). This chapter does not represent an extended analysis and critique of the modern positivist debate on legal reasoning and legal theory. It is an attempt to use an exemplary work in that tradition to expose the contradictory nature of legal reasoning about criminal responsibility in practice. I draw conclusions about the value of rationalist approaches to legal reasoning, but I concede that in the absence of an analysis of that tradition as a whole, which is beyond the scope of this work, such conclusions must be tentative. In ongoing work, I am developing the arguments of this and the previous chapter more fully.See, e.g., Norrie, ‘Oblique intention and Legal Politics’ [1989] Crim. LR. 793. Compare M. Kelman, ‘Interpretive Construction in the Substantive Criminal Law’ (1981) Stanford Law Review 591.Google Scholar
  2. 2.
    Op.cit., p.6.Google Scholar
  3. 3.
    Ibid., p.17.Google Scholar
  4. 4.
    Ibid., p.15.Google Scholar
  5. 5.
    Ibid., p.106.Google Scholar
  6. 6.
    Ibid., p.107.Google Scholar
  7. 7.
    Ibid., p.227Google Scholar
  8. 8.
    Ibid., p.38.Google Scholar
  9. 9.
    Ibid., p.106.Google Scholar
  10. 15.
    Cf. G. Williams, Textbook of Criminal Law (London, 1978), pp.428–429: ‘In allocating crimes to one category or the other, the courts adopt a Humpty Dumpty attitude’;Google Scholar
  11. see also Smith and Hogan, Criminal Law (London, 1983), p.193.Google Scholar
  12. 20.
    Smith and Hogan, op.cit., p.193.Google Scholar
  13. Cf. Williams (op.cit.), pp. 429–430.Google Scholar
  14. 22.
    [1920] AC 504, quoted by Lord Elwyn-Jones in [1976] 2 WLR 632. Cf. Williams (op.cit.), p.430: ‘[the judges] distinguish between offences on grounds of policy, while pretending to derive the distinction from definitions.’Google Scholar
  15. 34.
    From Ealing London Borough Council v. Race Relations Board [1972]A.C342 at 361, and quoted in MacCormick, op.cit., pp.211–212. The other three avenues are (3) ‘regard to the long title of the statute’, (4) ‘scrutiny of the actual words to be interpreted in the light of established canons of interpretation, and (5) ‘examination of the other provisions of the statute in question’.Google Scholar
  16. 37.
    W. (A Minor) v. Dolbey [1983] Crim.L.R. 681, and at the cost of potentially bewildering practical consequences in the law: see J.C. Smith and B. Hogan, Criminal Law, 6th ed., (London, 1988) p.67.Google Scholar
  17. 38.
    Hence the unveiled disgust of leading academic commentators, see J.C. Smith [1981] Crim. L.R. 393–396, G. Williams, ‘Recklessness Redefined’ 40 Camb. L.J. (1981) 252.Google Scholar
  18. 40.
    Camb. L.J. (1981) 252.Google Scholar
  19. 41.
    Both because it is impossible to draw any real distinction between perpetrator and accessory (G.Williams, op.cit. (1978) p.583) and because the law has always stated that ‘the stroke of one is the stroke of all’Google Scholar
  20. (Smith and Hogan, op.cit. p.211).Google Scholar
  21. 43.
    Ibid., p.762.Google Scholar
  22. 44.
    Ibid., p.763.Google Scholar
  23. 45.
    Ibid., p.765.Google Scholar
  24. 51.
    Cf. Dennis, op.cit., 214–5, 217–8.Google Scholar
  25. 58.
    Cf. MacCormick, op.cit., ch.8.Google Scholar
  26. 59.
    Ibid., p.227.Google Scholar
  27. 60.
    Cf. G. Williams, Textbook of Criminal Law (2nd ed.) (1983, London) p.16 who states that the judges are capable in criminal law cases of ‘what is popularly called ‘special pleading’ - that is, rationalisation accompanied by misdirection and legerdemain. The legal pros and cons are not fairly stated… The court selects the arguments and authorities leading to the conclusion it desires, and minimises or ignores the weight of authority or force of arguments going the other way.’ Yet the main textbook writers continue to present legal doctrine as if this was not a regular feature of deciding cases, but peripheral to an idealised conception of the law as a rational and principled whole.Google Scholar
  28. 61.
    Ibid., p.13.Google Scholar
  29. 63.
    Cf. Williams, op.cit., fn.60: ‘Ordinary lawyerly reasoning, as generally employed in civil cases, may be rejected in favour of fallacious and shallow grounds.’Google Scholar
  30. See also R.Ferguson in (1979) British Journal of Law and Society 6, 272, at p.274.Google Scholar
  31. 66.
    The idea of a ‘language of equality’ is taken from an unpublished doctoral thesis of that title by T.S. Midgely: The Language of Equality (1978) Edinburgh.Google Scholar
  32. 67.
    See D. McBarnet, Conviction (London, 1981).Google Scholar
  33. 68.
    Lord Devlin, quoted in J. Griffith, The Politics of the Judiciary (London, 1977), Fontana, p.191.Google Scholar
  34. 69.
    R. Cotterrell, English Conceptions of the Role of Theory in Legal Analysis’, Modern Law Review (1983) 46, p.681, at pp.697–698.CrossRefGoogle Scholar
  35. 70.
    Ibid., pp.698–699.Google Scholar
  36. 71.

Copyright information

© Kluwer Academic Publishers 1991

Authors and Affiliations

  • Alan W. Norrie
    • 1
  1. 1.School of LawUniversity of WarwickCoventryUK

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