Function of purpose in the legal system
University of British Columbia
Master of Laws - LLM
Most social practices nave some purpose or another to fulfil that justifies their existence. Indeed, we explain many formal and informal rules by reference to their particular raison d'etre. The reason for doing something, then, is clearly of major importance in considering the nature of the relevant practice as a whole. If this is true of informal social practices it must also follow for the legal system. The thesis of this essay, therefore, is that law is a purposeful activity and that such purposes have a very significant function within the system of law. Particular emphasis is placed upon the role that purpose plays in the decision-making process. It is argued to be a part of the law itself as opposed to some extra-legal criterion that may he taken into account. The law is not, in fact, neutral as to goals. The first chapter constitutes a study of the major theories of law in relation to their respective interpretations of the function of goals in the legal system. The schools of Positivism and Natural Law are examined as representing the polar positions in the debate. Then the intermediate standpoints of the Sociological jurisprudents and other writers are discussed. The basic issue here is whether it is at all possible to attribute an important role to purpose in this field. In chapter 2 a classification of goals is presented with a discussion of how it was derived and the problems that arose in doing so. If we are able to use goals in some way in the decisionmaking process it is necessary to look at various methods by which this can be done. This task is the subject of the final chapter. The problems involved in using goals and especially the fundamental difficulty of identifying the goals are examined. Some of the theories discussed in the first chapter are re-examined and evaluated. The possible limits upon the practicality of using purpose in the ways discussed have not yet become clear. However, it does appear that there is great potential for using purpose in the decision process. It offers a means for resolving many disputes and, frequently, even hard cases may be settled by looking to the purposes of the rules concerned. The exercise of drawing up a classification of goals has proved to be a practical method of assessing the viability of using purpose and a valuable indicator as to the major drawbacks to doing so successfully.
Law -- Philosophy; Jurisprudence
Law, Peter A. Allard School of