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Legal Reasoning and Legal Theory$
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Neil MacCormick

Print publication date: 1994

Print ISBN-13: 9780198763840

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198763840.001.0001

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The Constraint of Formal Justice

The Constraint of Formal Justice

Chapter:
(p.73) IV The Constraint of Formal Justice
Source:
Legal Reasoning and Legal Theory
Author(s):

Neil MacCormick

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198763840.003.0004

The ideas of justification and of justice are closely related ones, not just at the etymological level. The actual case of Ealing London Borough Council v. Race Relations Board is presented to confirm the theoretical argument. The very simple argument of this chapter has led to the point or realizing that whenever the problem of interpretation of the problem of relevancy arises, the particular decision handed down in the particular case is justifiable only given some ruling as to the ‘proper’ interpretation of the applicable rule, or some ruling settling some ‘proposition’ of law covering the particulars of the instant case and any other like cases which may in due course arise. There are strong reasons of principle why judges, in deciding particular cases, should act only in accordance with some ruling which covers not only the particular case, but all other possible cases which are like cases, just because they would be covered by the same ruling. The two types of decisions ‘on the facts’, namely problems of proof and ‘secondary fact’ problems, are explained. The notion of formal justice requires that the justification of decisions in individual cases be always on the basis of universal propositions to which the judge is prepared to adhere as a basis for determining other like cases and deciding them in the like manner to the present one.

Keywords:   formal justice, constraint, justification, theoretical argument, decisions

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