Fice Of Fair Trading V Abbey National Lord Phillips Essay
1888 Words8 Pages
In the case of the Office of Fair Trading v Abbey National Lord Phillips stated “I think personally I would have been quite in favour of the OFT looking into bank charges, if I had complete freedom to decide.... but the statute said it was not within their terms of reference”
Lord Phillips makes it very clear that decisions in cases are tied to legal rules, however what is the role of legal rules in judicial decision making? There are different schools of thought with regards to that question. This essay will explore those differences. Firstly we shall consider the perspectives of the formalists, what was their view of applying rules. Continuing onto the American Legal Realists ' views, assumptions and looking at their two main critiques of formalism, rule and fact scepticism. We shall also review the theories of H.L.A. Hart regarding the application of legal rules. By analysing some modern day cases and examples we will further compare and contrast formalism, realism and Hart. Finally we shall review aspects of the essay and draw conclusions.
Formalists were legal theorists of the late 19th century. Formalism was regarded as a way of a mechanical interpretation of the law. Using syllogism, a logical process, judges selected an appropriate legal rule. This was applied rationally to the facts of the case and from this a conclusion was objectively deduced. This was regarded as a scientific process removing subjectivity where the correct decisions were inherent