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Volumn 25, Issue 1, 2005, Pages 3-31

The possibility of impartiality

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EID: 27644534306     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi002     Document Type: Article
Times cited : (29)

References (95)
  • 1
    • 0004273196 scopus 로고
    • (New Haven: Yale UP, revised edn) at and
    • L. Fuller, The Morality of Law (New Haven: Yale UP, revised edn, 1969) at 46 and 96.
    • (1969) The Morality of Law , vol.46 , pp. 96
    • Fuller, L.1
  • 2
    • 0003084474 scopus 로고
    • 'Forms and Limits of Adjudication'
    • On the links between law and adjudication, see his at 372-9
    • On the links between law and adjudication, see his 'Forms and Limits of Adjudication' (1978) 92 Harvard L R 353-409 at 372-9.
    • (1978) Harvard L. R. , vol.92 , pp. 353-409
  • 3
    • 0003084474 scopus 로고
    • 'Forms and Limits'
    • See On the links between law and adjudication, see his at 372-9
    • See Fuller, 'Forms and Limits', ibid.
    • (1978) Harvard L. R. , vol.92 , pp. 354-409
    • Fuller, L.1
  • 4
    • 0037609084 scopus 로고
    • (Harmondsworth: Penguin) at and chs 9 and 10 provides a thoughtful and elegant statement of the various methods of dispute resolution found in 'simple' societies
    • S. Roberts, Order and Dispute (Harmondsworth: Penguin 1979) at 53-79 and chs 9 and 10 provides a thoughtful and elegant statement of the various methods of dispute resolution found in 'simple' societies.
    • (1979) Order and Dispute , pp. 53-79
    • Roberts, S.1
  • 5
    • 0004166519 scopus 로고    scopus 로고
    • (Oxford: Hart Publishing) at and 400-01 correctly states a common but questionable assumption of contemporary jurisprudence, namely, that law and adjudication are an inseparable package
    • R. Dworkin, Law's Empire (Oxford: Hart Publishing 1998) at 11-15 and 400-01 correctly states a common but questionable assumption of contemporary jurisprudence, namely, that law and adjudication are an inseparable package.
    • (1998) Law's Empire , pp. 11-15
    • Dworkin, R.1
  • 6
    • 0003566257 scopus 로고
    • By 'orthodox' I refer to jurists whose work shares a belief that law and adjudication are, or are near to becoming, good means of both subjecting human conduct to the governance of rules and of resolving disputes about those rules. Three classic orthodox Anglo-American contributions to the first topic are: (Oxford: Clarendon Press)
    • By 'orthodox' I refer to jurists whose work shares a belief that law and adjudication are, or are near to becoming, good means of both subjecting human conduct to the governance of rules and of resolving disputes about those rules. Three classic orthodox Anglo-American contributions to the first topic are: N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press 1978);
    • (1978) Legal Reasoning and Legal Theory
    • MacCormick, N.1
  • 7
    • 0004213898 scopus 로고
    • (London: Duckworth) at chs 2-5 and his Law's Empire, above, chs 2, 6 and 7
    • R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978) at chs 2-5 and his Law's Empire, above, chs 2, 6 and 7.
    • (1978) Taking Rights Seriously
    • Dworkin, R.1
  • 8
    • 27644536161 scopus 로고
    • On the second topic, three contemporary classics are: (Oxford: Clarendon Press)
    • On the second topic, three contemporary classics are: J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), part I;
    • (1986) The Morality of Freedom , Issue.PART I
    • Raz, J.1
  • 9
    • 84936068266 scopus 로고    scopus 로고
    • above, ch 6
    • Law's Empire, above, ch 6
    • Law's Empire
  • 11
    • 0004201515 scopus 로고
    • 'Heretical' jurists are those who think either that law and adjudication are undesirable means of regulating human conduct tout court, or undesirable in their current form and in current social, cultural and economic conditions. Some principal heretical monographs are: (London: Routledge, Chapman and Hall)
    • 'Heretical' jurists are those who think either that law and adjudication are undesirable means of regulating human conduct tout court, or undesirable in their current form and in current social, cultural and economic conditions. Some principal heretical monographs are: D. Cornell, The Philosophy of the Limit (London: Routledge, Chapman and Hall, 1992);
    • (1992) The Philosophy of the Limit
    • Cornell, D.1
  • 15
    • 0003944642 scopus 로고    scopus 로고
    • and (Cambridge, Mass.: Harvard UP, 1986) and What Should Legal Analysis Become? (London: Verso)
    • and R. Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard UP, 1986) and What Should Legal Analysis Become? (London: Verso, 1996).
    • (1996) The Critical Legal Studies Movement
    • Unger, R.1
  • 16
    • 27644438268 scopus 로고    scopus 로고
    • note
    • Impartiality is notable by its absence in these heretical works: See, for example, Kennedy's Critique; it features only fleetingly, and then only in a discussion of value neutrality, in Kelman's Guide.
  • 17
    • 27644566644 scopus 로고    scopus 로고
    • note
    • Orthodox jurists are equally sparing in their treatment: Impartiality hardly figures at all in Dworkin's Law's Empire, above, and appears briefly (at 17-18 and 234) in MacCormick's Legal Reasoning, above.
  • 18
    • 0035623454 scopus 로고    scopus 로고
    • 'The Possibilities and Desirability of Mediator Neutrality - Towards an Ethic of Partiality?'
    • Two recent fairly dismissive treatments are: 504-27 at
    • Two recent fairly dismissive treatments are: L. Mulcahy, 'The Possibilities and Desirability of Mediator Neutrality - Towards an Ethic of Partiality?' (2001) 10 Social and Legal Studies 504-27 at 511-14
    • (2001) Social and Legal Studies , vol.10 , pp. 511-514
    • Mulcahy, L.1
  • 19
    • 27644483934 scopus 로고    scopus 로고
    • 'Representations of the (Woman) Judge: Hercules, the Little Mermaid and the Vain and Naked Emperor'
    • and E. Rackley, 'Representations of the (Woman) Judge: Hercules, the Little Mermaid and the Vain and Naked Emperor' 22 (2002) Legal Studies 602-24.
    • (2002) Legal Studies , vol.22 , pp. 602-624
    • Rackley, E.1
  • 20
    • 84884062670 scopus 로고
    • True to its hyperbolic tone, the latter essay claims impartiality is 'either a lie or a failed and discarded ideal' (622). Equally dismissive, but this time of the idea of impartiality as articulated in some areas of moral and political philosophy, is (Princeton: Princeton UP) at
    • True to its hyperbolic tone, the latter essay claims impartiality is 'either a lie or a failed and discarded ideal' (622). Equally dismissive, but this time of the idea of impartiality as articulated in some areas of moral and political philosophy, is I.M. Young, Justice and the Politics of Difference (Princeton: Princeton UP, 1990) at 103:
    • (1990) Justice and the Politics of Difference , pp. 103
    • Young, I.M.1
  • 21
    • 0004127459 scopus 로고    scopus 로고
    • '[t]he idea of impartiality expresses an impossibility, a fiction'. Altogether more measured yet critical is (Oxford: Hart Publishing) at ch 7
    • '[t]he idea of impartiality expresses an impossibility, a fiction'. Altogether more measured yet critical is N. Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) at ch 7.
    • (1998) Unspeakable Subjects
    • Lacey, N.1
  • 22
    • 27644509161 scopus 로고
    • For an important and early statement (1798) see of (Oxford: Clarendon Press), abridged and edited by K. Codell Carter
    • For an important and early statement (1798) see pp. 69-73 of W. Godwin's Enquiry Concerning Political Justice (Oxford: Clarendon Press, 1971), abridged and edited by K. Codell Carter.
    • (1971) Enquiry Concerning Political Justice , pp. 69-73
    • Godwin's, W.1
  • 23
    • 0003555163 scopus 로고
    • A key contemporary text on impartiality in political philosophy is (Oxford: Clarendon Press)
    • A key contemporary text on impartiality in political philosophy is B. Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995);
    • (1995) Justice As Impartiality
    • Barry, B.1
  • 24
    • 27644522752 scopus 로고
    • a good starting point on impartiality in moral philosophy is the symposium in
    • a good starting point on impartiality in moral philosophy is the symposium in (1991) 101 Ethics 698-864.
    • (1991) 101 Ethics , pp. 698-864
  • 26
    • 27644510817 scopus 로고    scopus 로고
    • note
    • Nothing should be read into my use of 'rules' here; it is but a shorthand way of referring to legal rules and non-rule standards. I am taking no position on the constituents of a legal system or how they are best characterized.
  • 27
    • 27644483934 scopus 로고    scopus 로고
    • 'Representations of the (Woman) Judge: Hercules, the Little Mermaid and the Vain and Naked Emperor'
    • Some do, however, ascribe this implausible view to others. See, for example, at
    • Some do, however, ascribe this implausible view to others. See, for example, Rackley, above n 5, at 613
    • (2002) Legal Studies , vol.22 , pp. 613
    • Rackley, E.1
  • 28
    • 84884062670 scopus 로고
    • (admittedly most often ascribed to a mythical judge) and ch 4 (ascribed to some moral and political philosophers). While Young's ascription is in some instances correct, much of its critical power derives from an alleged disjunction between philosophical accounts of the structure of moral reason and the way we live actual moral lives: 102-03. This disjunction is only surprising if we make the questionable assumption that the former are attempts to 'explain' the latter. True to its hyperbolic tone, the latter essay claims impartiality is 'either a lie or a failed and discarded ideal' (622). Equally dismissive, but this time of the idea of impartiality as articulated in some areas of moral and political philosophy, is (Princeton: Princeton UP) at
    • (admittedly most often ascribed to a mythical judge) and Young, above n 5, ch 4 (ascribed to some moral and political philosophers). While Young's ascription is in some instances correct, much of its critical power derives from an alleged disjunction between philosophical accounts of the structure of moral reason and the way we live actual moral lives: 102-03. This disjunction is only surprising if we make the questionable assumption that the former are attempts to 'explain' the latter.
    • (1990) Justice and the Politics of Difference , vol.103
    • Young, I.M.1
  • 29
    • 0035623454 scopus 로고    scopus 로고
    • 'The Possibilities and Desirability of Mediator Neutrality - Towards an Ethic of Partiality?'
    • For some eccentric refereeing see www.basildonref.co.uk/articles/2001; for a view of the role of mediators based on a confused treatment of impartiality/neutrality, see Two recent fairly dismissive treatments are: 504-27 at
    • For some eccentric refereeing see www.basildonref.co.uk/articles/2001; for a view of the role of mediators based on a confused treatment of impartiality/neutrality, see Mulcahy, above n 5.
    • (2001) Social and Legal Studies , vol.10 , pp. 511-514
    • Mulcahy, L.1
  • 30
    • 0344098347 scopus 로고    scopus 로고
    • The distinction is latent in most of the essays in the best treatment of impartiality and neutrality to date: (ed.), (Cambridge: CUP)
    • The distinction is latent in most of the essays in the best treatment of impartiality and neutrality to date: A. Montefiore (ed.), Neutrality and Impartiality (Cambridge: CUP, 1975).
    • (1975) Neutrality and Impartiality
    • Montefiore, A.1
  • 31
    • 27644464755 scopus 로고    scopus 로고
    • See, in particular, C. Taylor's discussion at 128-32 and Montefiore's at 222-227
    • See, in particular, C. Taylor's discussion at 128-32 and Montefiore's at 222-27.
  • 32
    • 0008598077 scopus 로고    scopus 로고
    • Applied to the legal context, the distinction highlights issues elided in the brief discussion of 'party' and 'issue' impartiality in (Aldershot: Ashgate) at
    • Applied to the legal context, the distinction highlights issues elided in the brief discussion of 'party' and 'issue' impartiality in K. Malleson, The New Judiciary (Aldershot: Ashgate, 1999) at 64-65.
    • (1999) The New Judiciary , pp. 64-65
    • Malleson, K.1
  • 33
    • 0346663252 scopus 로고
    • The distinction is missed, however, in (Dordrecht: Kluwer) at where it is assumed that impartiality is only a property of procedures and not outcomes
    • The distinction is missed, however, in M. D. Bayles, Procedural Justice (Dordrecht: Kluwer, 1990) at 22-23, where it is assumed that impartiality is only a property of procedures and not outcomes.
    • (1990) Procedural Justice , pp. 22-23
    • Bayles, M.D.1
  • 34
    • 27644493212 scopus 로고    scopus 로고
    • For an interesting discussion of genuine and non-genuine randomness see (Oxford: Clarendon Press) at
    • For an interesting discussion of genuine and non-genuine randomness see N. Duxbury, Random Justice (Oxford: Clarendon Press, 1999) at 63-70.
    • (1999) Random Justice , pp. 63-70
    • Duxbury, N.1
  • 35
    • 27644578915 scopus 로고
    • While an obvious example to any sports fan, it was probably first introduced to academic discussions of impartiality and neutrality by
    • While an obvious example to any sports fan, it was probably first introduced to academic discussions of impartiality and neutrality by Montefiore, above n 10, at 8.
    • (1975) Neutrality and Impartiality , pp. 8
    • Montefiore, A.1
  • 36
    • 27644502695 scopus 로고
    • While an obvious example to any sports fan, it was probably first introduced to academic discussions of impartiality and neutrality by
    • Ibid at 15.
    • (1975) Neutrality and Impartiality , pp. 15
    • Montefiore, A.1
  • 37
    • 0004223708 scopus 로고    scopus 로고
    • My use of this phrase has little to do with the usage in (Cambridge, Mass.: Harvard UP)
    • My use of this phrase has little to do with the usage in R. Dworkin, Sovereign Virtue (Cambridge, Mass.: Harvard UP, 2000) at 191-94.
    • (2000) Sovereign Virtue , pp. 191-194
    • Dworkin, R.1
  • 38
    • 27644595644 scopus 로고
    • The phrase is from the translator's preface to To his Constituents... (London: John Stockdale)
    • The phrase is from the translator's preface to J. P. Brissot, To his Constituents... (London: John Stockdale, 1794) at iv.
    • (1794)
    • Brissot, J.P.1
  • 39
    • 27644480750 scopus 로고    scopus 로고
    • note
    • While usually attributed to Edmund Burke, there is some suggestion that the translator - and therefore presumably the author of the preface - was William Burke. On the point of substance,
  • 40
    • 0344098347 scopus 로고    scopus 로고
    • see also C. Taylor at 128-29 and at of above n 10, where Montefiore notes that Taylor's movements between neutrality and impartiality is 'somewhat easy-going' but not in any meaningful sense wrong
    • see also C. Taylor at 128-29 and Montefiore at 223-26 of Neutrality and Impartiality, above n 10, where Montefiore notes that Taylor's movements between neutrality and impartiality is 'somewhat easy-going' but not in any meaningful sense wrong.
    • Neutrality and Impartiality , pp. 223-226
    • Montefiore, A.1
  • 42
    • 27644476219 scopus 로고
    • The distinction is latent in most of the essays in the best treatment of impartiality and neutrality to date: (ed.), (Cambridge: CUP)
    • Above n 10 at 200-201.
    • (1975) Neutrality and Impartiality , pp. 200-201
    • Montefiore, A.1
  • 43
    • 0003529325 scopus 로고
    • To this end, it might be argued that the preferred sense is the central case or focal meaning of the concept in question: see (Oxford: Clarendon Press)
    • To this end, it might be argued that the preferred sense is the central case or focal meaning of the concept in question: See J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press 1980) at 6-11
    • (1980) Natural Law and Natural Rights , pp. 6-11
    • Finnis, J.1
  • 44
    • 27644463882 scopus 로고    scopus 로고
    • and his (Oxford: Clarendon Press)
    • and his Aquinas (Oxford: Clarendon Press 1998) at 29-51.
    • (1998) Aquinas , pp. 29-51
  • 45
    • 9444296904 scopus 로고
    • 'Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors'
    • The point belongs to 1201-18 at
    • The point belongs to M. Minow, 'Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors' (1992) 33 William and Mary L R 1201-18 at 1214-17.
    • (1992) William and Mary L R , vol.33 , pp. 1214-1217
    • Minow, M.1
  • 46
    • 0003566257 scopus 로고
    • See above n 3 at for an example. By 'orthodox' I refer to jurists whose work shares a belief that law and adjudication are, or are near to becoming, good means of both subjecting human conduct to the governance of rules and of resolving disputes about those rules. Three classic orthodox Anglo-American contributions to the first topic are: (Oxford: Clarendon Press)
    • See MacCormick, above n 3 at 21, for an example.
    • (1978) Legal Reasoning and Legal Theory , pp. 21
    • MacCormick, N.1
  • 47
    • 0043233605 scopus 로고
    • 'Will Women Judges really make a Difference?'
    • Nor are such calls made only by academics. See
    • Nor are such calls made only by academics. See B. Wilson, 'Will Women Judges really make a Difference?' (1990) 28 Osgoode Hall L J 507-20
    • (1990) Osgoode Hall L J , vol.28 , pp. 507-520
    • Wilson, B.1
  • 48
    • 27644565167 scopus 로고    scopus 로고
    • 'Equality and the Judiciary: Why Should We Want More Women Judges?'
    • and B. Hale, 'Equality and the Judiciary: Why Should We Want More Women Judges?' (2001) Public Law 489-504.
    • (2001) Public Law , pp. 489-504
    • Hale, B.1
  • 49
    • 0346853789 scopus 로고
    • 'The Gender of Judgements: An Introduction'
    • See also ch 12 of M. Thornton (ed.), (Melbourne: OUP)
    • See also R. Greycar, 'The Gender of Judgements: An Introduction', ch 12 of M. Thornton (ed.), Public and Private - Feminist Legal Debates (Melbourne: OUP, 1995).
    • (1995) Public and Private - Feminist Legal Debates
    • Greycar, R.1
  • 50
    • 27644466891 scopus 로고    scopus 로고
    • The benchbook can be viewed on the Board's website: The website is a good introduction to the Board's work and concerns
    • The benchbook can be viewed on the Board's website: http://www.jsboard.co.uk. The website is a good introduction to the Board's work and concerns.
  • 51
    • 27644502693 scopus 로고    scopus 로고
    • note
    • A vivid illustration is the contrast between the early marital rape exemption cases in criminal law and the decision of the House of Lords in R. v R [1991] 4 All ER 481.
  • 52
    • 0038751705 scopus 로고    scopus 로고
    • The points about the historical and bilateral nature of adjudication constitute a compelling criticism of some aspects of neo-classical law and economics: see (Oxford: Clarendon Press)
    • The points about the historical and bilateral nature of adjudication constitute a compelling criticism of some aspects of neo-classical law and economics: See J. Coleman, The Practice of Principle (Oxford: Clarendon Press, 2001) at 13-24.
    • (2001) The Practice of Principle , pp. 13-24
    • Coleman, J.1
  • 53
    • 0004220262 scopus 로고
    • (Oxford: Clarendon Press, 2nd edn) That Hart thought the operators of a system of legal rules must regard the rules in this light and that they sometimes must, when interpreting or applying such rules, have recourse to the aims or purposes of the rules, is plain from p. 117 and p. 127. A still unsurpassed discussion, admirably clear and succinct, is N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981) at ch 3
    • H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 2nd edn, 1994) at 57. That Hart thought the operators of a system of legal rules must regard the rules in this light and that they sometimes must, when interpreting or applying such rules, have recourse to the aims or purposes of the rules, is plain from p. 117 and p. 127. A still unsurpassed discussion, admirably clear and succinct, is N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981) at ch 3.
    • (1994) The Concept of Law , pp. 57
    • Hart, H.L.A.1
  • 54
    • 27644463023 scopus 로고    scopus 로고
    • note
    • The scare quotes are necessary simply because there must be real doubt as to the possibility of habitual rule interpreting and applying.
  • 55
    • 27644500440 scopus 로고    scopus 로고
    • It is often assumed that impartiality (and neutrality) must be a matter of equality of impact. See, for example, the essays by Montefiore at 6-7 and Kolakowski at 72-73 in Neutrality and Impartiality, above n 10
    • It is often assumed that impartiality (and neutrality) must be a matter of equality of impact. See, for example, the essays by Montefiore at 6-7 and Kolakowski at 72-73 in Neutrality and Impartiality, above n 10
  • 56
    • 0003956640 scopus 로고
    • (Oxford: Clarendon Press)
    • and J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 113.
    • (1986) The Morality of Freedom , pp. 113
    • Raz, J.1
  • 57
    • 0004106103 scopus 로고
    • This, of course, is an echo of the sophisticated account of legal formalism in private law defended by (Cambridge, Mass.: Harvard UP) chs 1-4
    • This, of course, is an echo of the sophisticated account of legal formalism in private law defended by E. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard UP, 1995) chs 1-4.
    • (1995) The Idea of Private Law
    • Weinrib, E.1
  • 58
    • 27644566643 scopus 로고
    • For Fuller this participation dimension of adjudication also has significant epistemic pay-offs: (New Haven: Yale UP, revised edn) at and 96
    • For Fuller this participation dimension of adjudication also has significant epistemic pay-offs: See Forms and Limits, above n 1 at 353-72.
    • (1969) Forms and Limits , pp. 353-372
    • Fuller, L.1
  • 59
    • 0006798554 scopus 로고    scopus 로고
    • Also, for a similar refrain, see (Oxford: Clarendon Press) at ch 4
    • Also, for a similar refrain, see D. Galligan, Due Process and Fair Procedures (Oxford: Clarendon Press, 1996) at ch 4.
    • (1996) Due Process and Fair Procedures
    • Galligan, D.1
  • 60
    • 0345063318 scopus 로고    scopus 로고
    • This is a clumsy echo of an altogether more subtle argument offered in (New York: Oxford UP) at chs 2 and 3
    • This is a clumsy echo of an altogether more subtle argument offered in R.A. Duff, Punishment, Communication, and Community (New York: Oxford UP, 2001) at chs 2 and 3.
    • (2001) Punishment, Communication, and Community
    • Duff, R.A.1
  • 61
    • 27644548955 scopus 로고    scopus 로고
    • The standard treatment of the rules of natural justice is (Oxford: Clarendon Press, 8th edn)
    • The standard treatment of the rules of natural justice is H.W.R. Wade and C.F. Forsyth, Administrative Law (Oxford: Clarendon Press, 8th edn, 2000) Pt VI.
    • (2000) Administrative Law , Issue.PART VI
    • Wade, H.W.R.1    Forsyth, C.F.2
  • 62
    • 0006798554 scopus 로고    scopus 로고
    • Also interesting is above n 29, chs 11-14 (ch 14 also contains some brief but interesting thoughts on impartiality)
    • Also interesting is Galligan, above n 29, chs 11-14 (ch 14 also contains some brief but interesting thoughts on impartiality).
    • (1996) Due Process and Fair Procedures
    • Galligan, D.1
  • 64
    • 0346663252 scopus 로고
    • ch 3. The distinction is missed, however, in (Dordrecht: Kluwer) at where it is assumed that impartiality is only a property of procedures and not outcomes
    • and Bayles, above n 10 at ch 3.
    • (1990) Procedural Justice , pp. 22-23
    • Bayles, M.D.1
  • 67
    • 0006798554 scopus 로고    scopus 로고
    • On 'the hearing principle' at ch 12 Also, for a similar refrain, see (Oxford: Clarendon Press) at ch 4
    • On 'the hearing principle' see Galligan, above n 29 at ch 12
    • (1996) Due Process and Fair Procedures
    • Galligan, D.1
  • 68
    • 27644437602 scopus 로고    scopus 로고
    • at ch 15. The standard treatment of the rules of natural justice is (Oxford: Clarendon Press, 8th edn)
    • and Wade and Forsyth, above n 31 at ch 15.
    • (2000) Administrative Law , Issue.PART VI
    • Wade, H.W.R.1    Forsyth, C.F.2
  • 71
  • 72
    • 27644438267 scopus 로고    scopus 로고
    • 'Safeguarding Judicial Impartiality'
    • A helpful discussion of post-Pinochet cases is
    • A helpful discussion of post-Pinochet cases is K. Malleson, 'Safeguarding Judicial Impartiality' (2002) 22 Legal Studies 53-70.
    • (2002) Legal Studies , vol.22 , pp. 53-70
    • Malleson, K.1
  • 73
    • 0042341237 scopus 로고    scopus 로고
    • One such perspective is that of 'public reason'. Philosophers have raised a family of conceptions of public reason, two of the most interesting belonging to (Oxford: Clarendon Press)
    • One such perspective is that of 'public reason'. Philosophers have raised a family of conceptions of public reason, two of the most interesting belonging to G. Gaus, Justificatory Liberalism (Oxford: Clarendon Press, 1996)
    • (1996) Justificatory Liberalism
    • Gaus, G.1
  • 74
    • 0003624191 scopus 로고    scopus 로고
    • and (New York: Columbia UP, rev. edn)
    • and J. Rawls, Political Liberalism (New York: Columbia UP, rev. edn, 1996)
    • (1996) Political Liberalism
    • Rawls, J.1
  • 75
    • 0007310158 scopus 로고    scopus 로고
    • 'The Idea of Public Reason Revisited'
    • in his (Cambridge, Mass.: Harvard UP). The conceptions are similar in that they tell us which considerations public decision-making bodies like courts and legislatures should and should not use
    • and 'The Idea of Public Reason Revisited' in his The Law of Peoples (Cambridge, Mass.: Harvard UP, 1999). The conceptions are similar in that they tell us which considerations public decision-making bodies like courts and legislatures should and should not use.
    • (1999) The Law of Peoples
  • 76
    • 0038794432 scopus 로고
    • 'Critique of the Gotha Programme'
    • (London: Lawrence and Wishart) at
    • K. Marx, 'Critique of the Gotha Programme' in Vol. 24 Marx-Engels Collected Works, 1874-1883 (London: Lawrence and Wishart, 1989) at 86-87.
    • (1989) Marx-Engels Collected Works, 1874-1883 , vol.24 , pp. 86-87
    • Marx, K.1
  • 77
    • 0038413612 scopus 로고
    • 'All concrete peculiarities which distinguish one representative of the genus homo sapiens from another dissolve into the abstraction of man in general, man as legal subject': (London: Pluto Press)
    • 'All concrete peculiarities which distinguish one representative of the genus homo sapiens from another dissolve into the abstraction of man in general, man as legal subject': E. Pashukanis, Law and Marxism: A General Theory (London: Pluto Press, 1983) at 113.
    • (1983) Law and Marxism: A General Theory , pp. 113
    • Pashukanis, E.1
  • 78
    • 27644542267 scopus 로고    scopus 로고
    • 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects'
    • For an interesting recent discussion of legal personality see N. Naffine, As will be obvious from what follows in the text, my view of the abstract legal person is that it is a combination of what Naffine distinguishes as conceptions 'P2' and 'P3'
    • For an interesting recent discussion of legal personality see N. Naffine, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66 Modern L R 346-67. As will be obvious from what follows in the text, my view of the abstract legal person is that it is a combination of what Naffine distinguishes as conceptions 'P2' and 'P3'.
    • (2003) Modern L R , vol.66 , pp. 346-367
  • 79
    • 27644548079 scopus 로고    scopus 로고
    • See, for example, 1 WLR (tort of negligence)
    • See, for example, Mullin v Richards [1998] 1 WLR 1304 (tort of negligence);
    • (1998) Mullin V Richards , pp. 1304
  • 80
    • 27644483933 scopus 로고
    • 2 All ER
    • D.P.P. v Camplin [1978] 2 All ER 168
    • (1978) D.P.P. V Camplin , pp. 168
  • 81
    • 27644457048 scopus 로고
    • and 3 All ER (provocation defence in murder)
    • and R. v Morhall [1995] 3 All ER 658 (provocation defence in murder).
    • (1995) R. V Morhall , pp. 658
  • 83
    • 0035623454 scopus 로고    scopus 로고
    • 'The Possibilities and Desirability of Mediator Neutrality - Towards an Ethic of Partiality?'
    • An excellent introduction to and review of the literature is Lacey, ch 1 and chs 5-7. Two recent fairly dismissive treatments are: 504-27 at
    • An excellent introduction to and review of the literature is Lacey, above n 5, ch 1 and chs 5-7.
    • (2001) Social and Legal Studies , vol.10 , pp. 511-514
    • Mulcahy, L.1
  • 84
    • 27644529743 scopus 로고    scopus 로고
    • See also (eds.), (Oxford: Hart Publishing), chs 2, 3 and 5
    • See also S. James and S. Palmer (eds.), Visible Women (Oxford: Hart Publishing, 2002), chs 2, 3 and 5
    • (2002) Visible Women
    • James, S.1    Palmer, S.2
  • 86
    • 0003473443 scopus 로고
    • A broader discussion is provided by (Ithaca: Cornell UP)
    • A broader discussion is provided by M. Minow, Making All the Difference (Ithaca: Cornell UP, 1990).
    • (1990) Making All the Difference
    • Minow, M.1
  • 87
    • 27644483934 scopus 로고    scopus 로고
    • 'Representations of the (Woman) Judge: Hercules, the Little Mermaid and the Vain and Naked Emperor'
    • See Rackley, above n 5 at 602-05.
    • (2002) Legal Studies , vol.22 , pp. 602-605
    • Rackley, E.1
  • 88
    • 0004148706 scopus 로고    scopus 로고
    • See the sources in n 42, above, and, for example, Philosophy of the Limit above n 4. Cornell's views and her sources of inspiration have not remained static: compare the above text with (Princeton: Princeton UP)
    • See the sources in n 42, above, and, for example, Cornell, Philosophy of the Limit, above n 4. Cornell's views and her sources of inspiration have not remained static: Compare the above text with At the Heart of Freedom (Princeton: Princeton UP, 1998).
    • (1998) At the Heart of Freedom
    • Cornell, D.1
  • 89
    • 0004201515 scopus 로고
    • 'Heretical' jurists are those who think either that law and adjudication are undesirable means of regulating human conduct tout court, or undesirable in their current form and in current social, cultural and economic conditions. Some principal heretical monographs are: (London: Routledge, Chapman and Hall)
    • Philosophy of the Limit, above n 4 at 62.
    • (1992) Philosophy of the Limit , pp. 62
    • Cornell, D.1
  • 90
    • 27644469450 scopus 로고    scopus 로고
    • For an altogether more subtle account of some of the difficulties, see the essay by Lacey in James and Palmer (eds.), particularly at '[t]he idea of impartiality expresses an impossibility, a fiction'. Altogether more measured yet critical is (Oxford: Hart Publishing) at ch 7
    • For an altogether more subtle account of some of the difficulties, see the essay by Lacey in James and Palmer (eds.), above n 42, particularly at 129-33.
    • (1998) Visible Women , pp. 129-133
    • James, S.1    Palmer, S.2
  • 91
    • 27644487902 scopus 로고    scopus 로고
    • It is not only some strands of difference feminism that hint at this 'reinvention' of law. Some of the most interesting British critical legal theorists, like also lean in this direction. See my book review in
    • It is not only some strands of difference feminism that hint at this 'reinvention' of law. Some of the most interesting British critical legal theorists, like A. Norrie, also lean in this direction. See my book review in 19 (1999) Legal Studies 425-29
    • (1999) Legal Studies , vol.19 , pp. 425-429
    • Norrie, A.1


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