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Title: The idea of judicial power, with special reference to Australian law
Author: Finnis, John
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 1965
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The aim of this thesis is to contribute to analytical Jurisprudence by studying in depth a concept that is characteristically legal and, at the same time, both a traditional term of descriptive political analyses and familiar in ordinary non-technical usage. The concept selected for study is "judicial power". The intended point of the study is fourfold: (1) to illustrate a useful method of analytical jurisprudential enquiry: (2) to discover and illustrate the types of features, problems and lessons connected with the use of legal concepts, or of theoretical or commonsense concepts in a legal context: (3) to compare the approaches of descriptive theorists and of lawyers to those problems and features , and (4) to provide thereby some concrete evidence of the distinction (or absence of distinction) between legal thought, method and system, and the thought, method and system of commonsense and the purified commonsense no of descriptive theory. A long introductory chapter seeks to explicate these particular aims, and to place them in the context of contemporary analytical jurisprudence. In the first place, it argues that the sharp distinction, drawn by Prof. H. L. A. Hart, between descruotive statements or "statements of fact", and legal statements or "conclusions from rules", is misleading and ought to be abandoned as a solution for the puzzle it was put forward to resolve. This argument, if correct, clears the ground for a more-or-less straightforward comparison between the "descriptive" use of the term "judicial power" by political analyst from Aristotle to modern times, and the use of the same term in "conclusions of law" arrived at by Justices if the High Court of Australia in interpreting the Australian federal Constitution. Moreover, in the course of the argument it is suggested that the general criterion of the correctness of statements, legal or otherwise, is the absence of further relevant questions that would lead to a revision of the statement, so that an analysis of the special feature of legal language should not rely on the simple distinction put forward by Hart, but should seek to identify the general and special conditions surrounding the making of correct statements in legal as compared with other realms of discourse. Several such conditions are suggested a priori; legal discourse is distinguished from commonsense discourse by (1) the desire for a system in affairs; (2) the need to resolve disputes by giving final answers; (3) the consequent definition of terms, and limitation on further questions; (4) the consequent possibility of authority and precedent, further limiting questions, and providing (5) an actual system of definite terms and relations on which to base a transition to more abstract concepts expressing generically various systematic relationships possible between definite terms. A conclusion of the whole thesis is that such features or conditions of legal discourse may readily be identified in the history of the Australian discussions of judicial power.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Judicial power ; Judicial power--Australia