Chapter 1 describes the approach of reflexive tort scholarship and how it depends on a clear understanding of the environment of judicial decision-making. Part of that environment is the conception that judicial ‘lawmaking’ is ‘retrospective’, by which is usually meant that it is imposed retroactively. Yet retroactivity is in sharp tension with the fundamental principle that situations should be judged according to the law as it was at that time. To resolve this tension, the text offers a conception of the common law as ‘living’, that it evolves in line with changes in society. Later, litigation invites the ultimate court to articulate this evolution and how the law stood at the time that the parties interacted. The descriptive claims of Grand Theories are contrasted with reflexive tort scholarship, which accommodates key aspects of judicial decision-making, such as the heterogeneity of judicial reasons, in ways that those descriptive claims cannot.
Interpreting change through legal culture: the case of the Irish exclusionary rule