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

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  • Title: A Theory of Precedent : From Analytical Positivism to a Post-Analytical Philosophy of Law
  • Author: Raimo Siltala
  • Category: Other
  • Date: 02/01/10
  • Lenguage: English
  • Pages: unknown
  • ISBN: 9781847311504

 

Ebook description:

Analytical jurisprudence has been largely silent on the position of precedent in authorized adjudication. What is the content material of a choose’s precedent ideology, or the rule of precedent-recognition, by means of which the ratio of a case is to be distinguished from mere dicta? In this examine, the creator identifies six varieties of judicial precedent-ideology, amongst them judicial laws, systemic building of the underlying causes of legislation within the Dworkinian sense, and a radical re-evaluation of the deserves of a prior case in later adjudication, as envisioned by the American Realists. These competing fashions are examined in opposition to judicial experiences within the UK, US, France, Italy, Germany and Finland. By this implies Lon Fuller’s well-known ‘inner morality of legislation’ is proven to operate relatively poorly within the context of precedents, and the creator due to this fact suggests a redefinition of the rule which makes it work for precedent. This, in flip leads the creator to confront elementary questions in regards to the normative nature of legislation. Is Kelsen’s grundnorm or Hart’s final rule of recognition a legitimate rule, within the picture of authorized guidelines correct, or is it merely a social reality, observable solely within the practices and behavior of judges and different officers? The creator claims that Hart is caught between Kelsen and J. L. Borges, the late Argentinian fabulist, in as far as the ontology and epistemology of the rule of recognition are involved. This leads the creator to the conclusion that the 2 predicaments affecting analytical positivism, specifically the risk of countless self-referentiality, or infinite regress, can solely be accounted for by means of recourse to the philosophy of deconstruction as posited by Jacques Derrida.

 

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