Online | Judicial Law-making

Please note that the time allocated for this seminar will be devoted to discussion of the paper.

Speaker: Samuel Beswick (Allard School of Law, University of British Columbia)

About this event

This essay identifies the core common ground within mainstream jurisprudence on the nature of the judicial method. The analysis is developed by reference to the writings of two stalwarts, respectively, of the following perspectives on adjudication: positivist theories (H.L.A. Hart and Joseph Raz), natural theories (Lon Fuller and John Finnis), interpretive theories (Ronald Dworkin and Peter Jaffey), and realist theories (Karl Llewellyn and Hanoch Dagan). It is shown how these theories (and theorists) recognise six propositions regarding the nature of the judicial method. They are that (i) judges have law-making power; (ii) judicial law-making power is constrained; (iii) judicial law-making responds to unstable law; (iv) judicial law-making is retrospective; (v) judicial law-making is not legislating; and (vi) judicial law-making entails recognising law. These six propositions are intuitive to some theories of adjudication while seeming at odds with others. In respect of each there are myths that must be unravelled. The propositions also suggest that there is one supposed myth deserving of rehabilitation: the declaratory theory of adjudication. Properly understood, the declaratory theory encapsulates the essence of these six propositions. It remains a usefully descriptive account of what judges do.

About the speaker

Assistant Professor Samuel Beswick is a private law scholar with primary research interests in the areas of torts, unjust enrichment, limitations, remedies, and privacy. His current research concerns the temporal scope of judicial changes in the law. Dr. Beswick has published his research in leading common law journals, and has presented at workshops and conferences across North America and in the United Kingdom. He has held teaching positions at Harvard Law School, King’s College London, and the University of Auckland.

Delivery

This event will be delivered via Zoom Meeting. Attendees will be encouraged to keep their cameras on during the event however microphones will be turned off unless delegates are contributing to discussion and/or asking a question. Registered delegates will receive the zoom joining link 48-hours before the start of the event. Contact the Laws Events team (laws-events@ucl.ac.uk) if you have not received the link.

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