Neil Duxbury

Administrative support: Prabhat Sakya
Room: New Academic Building 6.08
Tel. 020-7852-3750

Neil Duxbury began his academic career at the LSE in 1987, moving to the University of Manchester the following year. He returned to the LSE in 2007.

Research Interests

Neil is currently writing about judges and the separation of powers.


Lord Kilmuir: A Vignette (Hart Publishing: 2015).

This short book examines the career and achievements of Lord Kilmuir (David Maxwell Fyfe), a British politician and former Lord Chancellor who is mainly remembered for some poor and unpopular decisions but who nevertheless made a considerable mark on twentieth-century legal development. After the Second World War, Kilmuir not only excelled as a fellow prosecutor with Justice Robert Jackson at Nuremberg but also played a significant role in the effort to restore European unity, particularly through his involvement in the drafting of the European Convention on Human Rights. Drawing on archival and other primary sources, this book considers Kilmuir’s initiatives both at home and in Europe, and concludes by marking out his achievements as a pro-European Conservative who not only favoured the right of individual petition to a supra-national, Convention-enforcing court but who also favoured parliament legislating to replicate Convention norms in domestic law.

Elements of Legislation (Cambridge UP, 2012)

In Elements of Legislation, Neil Duxbury examines the history of English law through the lens of legal philosophy in an effort to draw out the differences between judge-made and enacted law and to explain what courts do with the laws that legislatures enact. He presents a series of rigorously researched and carefully rehearsed arguments concerning the law-making functions of legislatures and courts, the concepts of legislative supremacy and judicial review, the nature of legislative intent and the core principles of statutory interpretation.

The Nature and Authority of Precedent (Cambridge UP, 2008).

The Nature and Authority of Precedent - cover

Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

Frederick Pollock and the English Juristic Tradition (Oxford UP, 2004).

Frederick Pollock and the English Juristic TraditionFrederick Pollock and the English Juristic Tradition provides the first detailed historical account of one of England's great jurists.

Until the later decades of the twentieth century, law developed little as an academic discipline in England. One exceptional period of intellectual growth, however, was the late-Victorian era, when a number of brilliant and now celebrated jurists produced works and devised projects which had a crucial impact on the development of English legal thought. Among this band of jurists was the great legal treatise writer, historian, and editor, Frederick Pollock. Compared with many of his contemporaries, however, Pollock has been largely overlooked by modern legal historians.

Drawing upon a vast array of sources, Neil Duxbury offers a detailed picture of this enigmatic figure, examining Pollock's career, jurisprudence, philosophy of the common law, treatise writing, and editorial initiatives, and shows that Pollock's contribution to the development of English law and juristic inquiry is both complex and crucial.

Jurists and Judges (Oxford: Hart, 2001)

Jurists and JudgesJurists and Judges examines the nature of academic influence, and particularly the influence of juristic commentary on judicial decision-making. Focusing on three legal systems, its author argues that inter-jurisdictional comparisons of juristic influence are often simplistic and inattentive to problems of incommensurability. The centrepiece of the study is a detailed chapter offering a nuanced history of juristic influence in England. All academic lawyers who reflect upon the history and objectives of their profession — who, in other words, wonder what it is that they are about — will profit from reading this most informative and engaging book.

Random Justice (Oxford UP, 1999)

Random JusticeChance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. Random Justice: On Lotteries and Legal Decision-Making explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilizing a variety of disciplines and materials, Neil Duxbury considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated.

The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes
betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where,
owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the
reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, as Professor Duxbury demonstrates, reason is generally valued more highly than is rationality.

The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.

Patterns of American Jurisprudence (Oxford UP, 1995)

Patterns of American JurisprudenceThis unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.

Selected articles
and chapters in books

'Custom as Law in English Law' (2017) 76 Cambridge Law Journal 337-359

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

'Reading Down' (2017) 20 Green Bag 2d 155-162.

'The outer limits of English judicial review' (2017) Public Law  pp.235-248

Considers the reasons for restricting the Administrative Court's judicial review powers to public law concerns, and why a measure of uncertainty over the outer limits of judicial review's supervisory jurisdiction is likely to remain. Examines possible arguments to support the restriction based on issues of jurisdiction, the monopoly powers test, public interest, the operation of the rule of law and the available remedies.

‘Acquisitive Prescription and Fundamental Rights’ (2016) 66 University of Toronto Law Journal 472-512.

Various seventeenth-century parliamentarians resorted to the concept of acquisitive prescription when denouncing irresponsible use of the royal prerogative. Often, the concept was invoked to convey nothing more than that a custom had existed since time immemorial. Yet sometimes the concept was used in its legal sense – to denote the acquisition of a right (as if someone with the authority to grant that right had done so) by virtue of some instance of long and uninterrupted enjoyment over a period of time. This article considers the application of acquisitive prescription, a doctrine rooted in the medieval law of land obligations, in Stuart constitutional discourse.

'The Law of the Land' (2015) 78 Modern Law Review 26-54

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.

'Ex post facto law' (2013) 58 American Journal of Jurisprudence 135-161.

This article examines the concepts of retrospective and retroactive—both forms of ex post facto—law. It shows that although the distinction between retrospective and prospective law is difficult to draw (given that laws generally alter rights), the classification of particular laws as retrospective is not arbitrary, since the proposition that only some legal rules interfere with “vested” rights is, while vague, not meaningless. Retroactive legislation is recognized to attract a long list of objections. The article seeks to identify and assess those objections, and to provide a comprehensive account of the various possible (if invariably limited) justifications for retroactivity. The conclusion offers some brief reflections on why the complaint that a law operates ex post facto is less likely to be directed at a judicial decision than at a statute.

'Lord Radcliffe Out of Time' (2010) 69 Cambridge Law Journal 41-71.

Discusses the life and jurisprudence of Lord Radcliffe, who was appointed as a Lord of Appeal in Ordinary in 1949. Evaluates Robert Stevens's claim that Radcliffe was intellectually torn between his perception of the need to support authority and his instinct to protect civil liberties, and analyses his philosophy on how a legal order maintains genuine authority. Examines Radcliffe's description of judicial decision-making as an "imperfect art", including his attitudes towards judicial creativity and law-making. Assesses Radcliffe as a "man out of time".

'Lord Wright and Innovative Traditionalism' (2009) 59 University of Toronto Law Journal 265-340.

This study presents the mid-twentieth-century English lord of appeal, Lord Wright, as an innovative traditionalist judge. Judges have a duty to be creative, Wright believed, but only within the framework of existing legal authority. Wright explained his innovative traditionalist perspective in relation to precedent, public policy, and legislation, and he illustrated his perspective particularly by way of contributions to decisions on worker compensation, commercial contracts, restitution, and international criminal law. He was not always a bold judge, as is especially evident from his contribution to Liversidge v. Anderson. But his efforts to develop the law without undermining established precedents and statutory authority could be subtly effective. In contract and tort decisions, he consistently argued that personal liability should attach only to outcomes that could reasonably have been expected to come about. He was realistic, and believed courts must be realistic, about the tendency of the business world to be guided primarily by its own norms. He incisively criticized implied contract theory and advanced a conception of unjust enrichment that, in England, was considerably ahead of its time. In employment law, he added a twist to freedom-of-contract reasoning, arguing that if it is permissible for individuals to use their economic advantage to impose contractual terms on weaker parties, then it should also be permissible for those parties to combine and gain the upper hand. After World War II, he argued that the positive laws necessary for punishing war criminals already existed. This study draws these arguments together in an effort to capture Wright's judicial style and to show that some of his contributions to legal thought and doctrine run deep and are historically significant.

‘Golden Rule Reasoning, Moral Judgment, and Law’ (2009) 84 Notre Dame Law Review 1529-1605.

This article examines “Golden Rule reasoning”--reasoning according to the principle that we should treat others as we would have them treat us--as a basis for moral action and as a criterion for assessing the moral quality and implications of judicial decisions, legal rules, and proposals for legal reform. After distinguishing the Golden Rule from other ideas and principles with which it is sometimes associated, I embark upon a defense of the Golden Rule as a principle of fairness. The main approach to defending this principle has been to detach Golden Rule-based behaviour from the desires of agents and recipients. The purpose of adopting this approach is to avoid reducing the Golden Rule to the proposition that we are entitled to impose on others preferences that we would happily have imposed on us. I examine various attempts to show that the Golden Rule requires that agents do not simply project their values and desires onto others and I argue that the most successful of these is R.M. Hare's explanation of Golden Rule reasoning in universal prescriptivist terms. Although the universal prescriptivist explanation is open to various criticisms--as becomes obvious when it is applied to particular moral problems such as euthanasia and abortion--it nevertheless provides a strong philosophical basis for claiming not only that Golden Rule reasoning need not be connected to particular tastes and preferences but also that, as a matter of moral principle, we should never tolerate double standards where cases are relevantly similar. While I accept and try to demonstrate the merits of interpreting the Golden Rule in universal prescriptivist terms, however, I conclude that a more robust interpretation of the Rule is one which is advanced by some natural law philosophers and which offers a philosophical justification for the proposition that doing to others as one would have done to oneself is necessarily a case of doing good towards others. The article ends with some reflections on the implications *1530 of this version of Golden Rule reasoning for legal policymaking, and in particular for the abortion debate.

'Kelsen's Endgame' (2008) 61 Cambridge Law Journal 51.

Having supposed a super-norm we may indeed suppose another still superior norm, and so on ad infinitum, like the elephants and tortoise which have been supposed to support the earth. Clearly there is no help in that.

'Jhering's Philosophy of Authority' (2007) 27 Oxford Journal of Legal Studies 23-47.

This article offers a critical reassessment of the jurisprudence of Rudolf von Jhering. During the 20th century, Anglo-American legal philosophers who drew inspiration from Jhering's work usually lauded him either as a German forerunner to American legal realism or as an early proponent of a jurisprudence of interests. These representations of his work do not do justice to Jhering's jurisprudential project. This study demonstrates that he sought to explain how legal systems originate and how they maintain authority. It is shown that his explanation of legal authority depends not only upon familiar jurisprudential notions such as reciprocity and positional duty, but also upon the concept of Rechtsgefühl--namely, the idea that authority is conditioned by citizens' feelings of what is right or just. Jhering, it is demonstrated, believed that the authority of a legal system depends very much on its ability to negotiate and accommodate struggles based upon feelings of right--struggles between citizens, between citizens and State, and between States. It is also argued that the manner in which Jhering relies on the idea of Rechtsgefühl undermines the received wisdom

'English Jurisprudence between Austin and Hart' (2005) 91 Virginia Law Review 1-91.