What is a court of law?

Research output: Contribution to journalArticle

Abstract

What is the nature of a court? In this article I argue that we need to know what a court is supposed to do in order to understand what it is. I argue against two conceptions of a court which I call ‘minimalist’ and ‘essentialist’. The former holds that a court is simply a body empowered to make binding resolutions of disputes by applying existing laws. I argue that this conception is incomplete. The latter identifies further essential features of courts, such as the use of fair processes. I argue that the essentialist conception lacks explanatory power. Drawing on the central case methodology in legal philosophy, I introduce a conception that I call the ‘paradigm case conception’. I argue that paradigm courts are not merely empowered to apply the law but equipped to do so, by virtue of possessing features that assist them to resolve legal disputes accurately and effectively (ie, with the public’s acceptance). Courts that do not possess all of these features or possess them to a limited degree are not ‘non-courts’ but defective courts. I explain why the paradigm case conception is theoretically and practically superior to the other conceptions.
Original languageEnglish
Pages (from-to)60-90
Number of pages31
JournalUniversity of New South Wales Law Journal
Volume42
Issue number1
Publication statusPublished - 2019

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