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The Judicial Process
Realism, Pragmatism, Practical Reasoning and Principles

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  • Date Published: October 2005
  • availability: This ISBN is for an eBook version which is distributed on our behalf by a third party.
  • format: Adobe eBook Reader
  • isbn: 9780511128622

$ 46.00 USD
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About the Authors
  • In the absence of a sound conception of the judicial role, judges at present can be said to be 'muddling along'. They disown the declaratory theory of law but continue to behave and think as if it had not been discredited. Much judicial reasoning still exhibits an unquestioning acceptance of positivism and a 'rulish' predisposition. Formalistic thinking continues to exert a perverse influence on the legal process. This 2005 book dismantles these outdated theories and seeks to bridge the gap between legal theory and judicial practice. The author propounds a coherent and comprehensive judicial methodology for modern times. Founded on the truism that the law exists to serve society, and adopting the twin criteria of justice and contemporaneity with the times, a judicial methodology is developed which is realistic and pragmatic and which embraces a revised conception of practical reasoning, including in that conception a critical role for legal principles.

    • Written by a practising judge, this book offers a unique melding of legal theory and judicial practice from the standpoint of a practising judge
    • Provides invaluable reading for: judges, as a means of enhancing their perception of the judicial role; lawyers, in providing a greater understanding of judicial adjudication; legal academics, in providing insights into judicial reasoning; and law students, as a comprehensive introduction to the judicial process
    • Advances a coherent and comprehensive judicial methodology for the twenty-first century
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    • Awarded the J F Northey Prize for Best Published Work in 2005 by the Legal Research Foundation of New Zealand

    Reviews & endorsements

    Review of the hardback: 'Clearly written, informative, intelligent and stimulating, The Judicial Process is a welcome addition to works in the tradition of Cardozo in imparting insights as to how judges view the process of which they are a part. Legal theory is engaged with in an informed and illuminating manner. Obscure or obdurate positions are disarmed with imaginative devices and humour, and the restrained but effective use of case studies. In establishing the clear connections between legal theory and the law in practice the author has written a jurisprudential work which will be of great value to judges, law practitioners and legal academics throughout the common law world.' Professor Andrew Halpin, Southampton University

    Review of the hardback: 'This outstanding book, written by an experienced and distinguished Judge, is a timely reminder that the courts exist to help the citizens of a free and democratic society obtain justice through the legal process in an uncertain and continually changing world. To achieve this end, the author advances a comprehensive conception of the judicial role founded on an extensive study of legal theory and practice.' Professor George C. Christie, Duke University, North Carolina

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    Product details

    • Date Published: October 2005
    • format: Adobe eBook Reader
    • isbn: 9780511128622
    • dimensions: 228 x 152 mm
    • availability: This ISBN is for an eBook version which is distributed on our behalf by a third party.
  • Table of Contents

    1. Introduction
    2. Muddling along
    3. The curse of formalism
    4. Legal fundamentalism
    5. The idolatry of certainty
    6. The piety of precedent
    7. The foibles of precedent - a case study
    8. There is no impersonal law
    9. So, what is the law?
    10. The constraints on the judiciary
    11. Towards a new judicial methodology
    12. Of realism and pragmatism
    13. Of practical reasoning and principles
    14. Taking law seriously
    15. A theory of ameliorative justice
    Subject index
    Authors index.

  • Author

    E. W. Thomas, University of Auckland
    Distinguished Visiting Fellow, Auckland University Law School; Acting Judge of the Supreme Court of New Zealand.


    • Awarded the J F Northey Prize for Best Published Work in 2005 by the Legal Research Foundation of New Zealand

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