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Download e-book for iPad: A Theory of Precedent: From Analytical Positivism to a by Raimo Siltala

By Raimo Siltala

ISBN-10: 1841131237

ISBN-13: 9781841131238

ISBN-10: 1847311504

ISBN-13: 9781847311504

Analytical jurisprudence has been in general silent at the function of precedent in felony adjudication. what's the content material of a judge's precedent ideology, or the guideline of precedent-recognition, through which the ratio of a case is to be extraordinary from mere dicta? during this learn, the writer identifies six kinds of judicial precedent-ideology, and exams them opposed to judicial studies within the united kingdom, US, France, Italy, Germany and Finland. the writer indicates a redefinition of Lon Fuller's inner morality of legislation, and confronts basic questions about the normative nature of legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or only observable simply within the practices and behaviour of judges and different officers? the writer claims that Hart is stuck among Kelsen and J.L. Borges in as far as the foundation of the rule of thumb is anxious. the writer concludes that the specter of unending self-referentiality can purely be accounted for via recourse to Jacques Derrida's philosophy of deconstruction.

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Extra info for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law

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OBJECT OF INQUIRY REDEFINED : THEORETICAL AND PHILOSOPHICAL PREMISES OF THE RATIO OF A CASE , AS DERIVED FROM THE MULTI - LEVEL STRUCTURE OF LAW I will argue that the inherent dilemmas of precedent-following, as acutely discerned by Hart above, are to a great extent induced by a less than fully selfreflected and well-articulated conception of the jurisprudential and philosophical premises of precedent-following “beneath” the operative surface-structure level of law, on the part of judges and other lawyers engaged in precedentidentification and precedent-following.

Deconstruction is not a method, at least not in the conventional sense of the term. 107 Yet, relaxing for a moment the allusion to the quasi-transcendental condition of possibility (and impossibility) of judgment entailed in the Derridean infrastructures, a deconstructive reading of a text might provisionally be operationalised by means of the following open-ended list of “manoeuvres” or “tricks” available: 106 J. Derrida, On the Name (Stanford University Press, California, 1995), 89–127. Cf. Plato, Timaeus, in The Dialogues of Plato (Clarendon Press, Oxford, 4th ed.

51, 437–60. 59 For instance, the following individual contributions to the field of jurisprudence can be classified under analytical positivism as the term is defined here: J. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning;61 H. A. Hart, The Concept of Law;64 J. Wróblewski, The Judicial Application of Law;65 A. Ross, Om ret og retfærdighed;66 N. MacCormick, Legal Reasoning and Legal Theory;67 A. Peczenik, The Basis of Legal Justification68 and On Law and Reason;69 R.

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A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law by Raimo Siltala

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