Adjudication and Legal Change

John Finnis

in Philosophy of Law

Published in print April 2011 | ISBN: 9780199580088
Published online September 2011 | e-ISBN: 9780191729409 | DOI:
Adjudication and Legal Change

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This chapter is a comment on Kleinwort Benson v Lincoln (1998) grapples with the question how far adjudication differs from legislation even when the court is overruling long-standing precedents long taken to have established a common law rule, now abrogated. This is considered in the context of the question whether the parties' reliance on the now abrogated rule was a mistake of fact or of law; against legal ‘Realism’, it should be regarded as a mistake of law, not of prediction (fact). The ‘declaratory theory of law’ mocked by Austin does not make a historical but rather a normative claim, about judges' duty to differentiate judicial authority and reasoning from that of legislatures. An endnote considers responses to the case that approach more closely Dworkin's one right answer thesis.

Keywords: declaratory theory of law; mistakes of law; legal Realism; judicial authority; abrogation of common law; Austin; Dworkin

Chapter.  3368 words. 

Subjects: Jurisprudence and Philosophy of Law

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