Assignment -1
LEGAL METHODS
Name: VIVAN SAGAR ANJAN
Courses: BBA LLB
2) In 'Is Common Law Law?' Frederick Schauer introduces the puzzle of common
law as follows- "For all its ubiquity, the common law remains uncommonly
puzzling.".
a. Determine the overall argument of Trace Schauer in this paper. Do you agree with
Schauer?
Explain with reasons and, examples with common law cases. [7.5 marks]
b. If you were to analyze the argument Postema presents in 'Classical Common
Law Jurisprudence (Part I)', do you believe that the theory of the 'internal
point of view' advanced by HLA Hart can fulfill the aim of explanation for how
common law functions. Discuss
Hart's theory of law and whether it does or does not apply to the historical
development of common law. [7.5 marks]
Hart's arguments may be located in 'Positivism and Separation of Law and Morals'
and 'The Concept of Law'. You can also use the work of David Dyzenhaus or
Raymond Wack's textbook on Jurisprudence. Do some independent research to
answer these questions
ANS:
A)
In "Is Common Law Law?", Frederick Schauer provides a case of truly convincing
arguments concerning the merits of common law that diverge from the orthodox
understandings of the rule of law. Let us outline his central arguments and discuss
whether one can concur with him by drawing examples from cases of common law.
Schauer's Central Argument:
Further pointing out that common law rules are not codified in their formulate form,
so to speak, they appear not in one document whose authority can stand them on their
head. Statute law is thus different. Since there is no comprehensive formulation which
can be said to prevail over all else, common law rules are bound to be inherently more
complicated and flexible. He argues that common law rules are framed by courts
through case adjudication rather than legislation. Moreover, the lawmaking process is
analogous to case resolution. It follows that there is always an element of uncertainty
and injustice because one could not be aware of the rules at the time he acts. The
Interstitial and Transformative Lawmaking, Common law courts may not only fill
lacunae in the pre-existing law; they can change or substitute rules that had been
accepted before if the application of them would create a result improper. It is
established from the statutory law since common law being alone determined by the
transformative power. Case in the Favor of SchauerArguments Advancing from
SchauerComplexity and Flux: I believe that there lacks something like a canonical
formulation in common laws that sow the seeds of uncertainty, as argued by Schauer.
Just think over how tort law-developed, particularly the tort of negligence-was created
by judicial interpretations in Donoghue v. Stevenson in 1932, here a new legal
LEGAL METHODS
Name: VIVAN SAGAR ANJAN
Courses: BBA LLB
2) In 'Is Common Law Law?' Frederick Schauer introduces the puzzle of common
law as follows- "For all its ubiquity, the common law remains uncommonly
puzzling.".
a. Determine the overall argument of Trace Schauer in this paper. Do you agree with
Schauer?
Explain with reasons and, examples with common law cases. [7.5 marks]
b. If you were to analyze the argument Postema presents in 'Classical Common
Law Jurisprudence (Part I)', do you believe that the theory of the 'internal
point of view' advanced by HLA Hart can fulfill the aim of explanation for how
common law functions. Discuss
Hart's theory of law and whether it does or does not apply to the historical
development of common law. [7.5 marks]
Hart's arguments may be located in 'Positivism and Separation of Law and Morals'
and 'The Concept of Law'. You can also use the work of David Dyzenhaus or
Raymond Wack's textbook on Jurisprudence. Do some independent research to
answer these questions
ANS:
A)
In "Is Common Law Law?", Frederick Schauer provides a case of truly convincing
arguments concerning the merits of common law that diverge from the orthodox
understandings of the rule of law. Let us outline his central arguments and discuss
whether one can concur with him by drawing examples from cases of common law.
Schauer's Central Argument:
Further pointing out that common law rules are not codified in their formulate form,
so to speak, they appear not in one document whose authority can stand them on their
head. Statute law is thus different. Since there is no comprehensive formulation which
can be said to prevail over all else, common law rules are bound to be inherently more
complicated and flexible. He argues that common law rules are framed by courts
through case adjudication rather than legislation. Moreover, the lawmaking process is
analogous to case resolution. It follows that there is always an element of uncertainty
and injustice because one could not be aware of the rules at the time he acts. The
Interstitial and Transformative Lawmaking, Common law courts may not only fill
lacunae in the pre-existing law; they can change or substitute rules that had been
accepted before if the application of them would create a result improper. It is
established from the statutory law since common law being alone determined by the
transformative power. Case in the Favor of SchauerArguments Advancing from
SchauerComplexity and Flux: I believe that there lacks something like a canonical
formulation in common laws that sow the seeds of uncertainty, as argued by Schauer.
Just think over how tort law-developed, particularly the tort of negligence-was created
by judicial interpretations in Donoghue v. Stevenson in 1932, here a new legal
