Why common law is sceptical of philosophy
2 months, 1 week ago

Why common law is sceptical of philosophy

New Indian Express  

King James I’s assertion of the right to decide issues where the law was unclear later became known as the Case of Prohibitions. Coke observed, “The king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges… But he was not learned in the laws of his realm of England, and causes which concern the life, inheritance, goods or fortunes of his subjects are not to be decided by natural, but by the artificial reason and judgement of law, which is an act that requires long study and experience”. Justice Markandey Katju, while serving as a judge of the Allahabad High Court, in Shambhu Dayal, remarked that even the members of the executive services “will not be able to dispense justice and discharge judicial functions properly not being possessed of a trained judicial mind nor conversant with intricate applicable legal principles and judicial manner of thinking. Common law and legal reasoning fundamentally rely on inductive and analogical reasoning derived from the specifics of individual cases. Judges in common law regimes, such as the UK and India, view their role as incrementally advancing the law through the resolution of specific cases, guided more by precedent than by a thorough theoretical foundation.

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