By Raimo Siltala
ISBN-10: 1841131237
ISBN-13: 9781841131238
ISBN-10: 1847311504
ISBN-13: 9781847311504
Analytical jurisprudence has been normally silent at the function of precedent in criminal adjudication. what's the content material of a judge's precedent ideology, or the guideline of precedent-recognition, via which the ratio of a case is to be wonderful from mere dicta? during this examine, the writer identifies six varieties of judicial precedent-ideology, and assessments them opposed to judicial reviews 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 primary questions on the normative nature of legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or only observable merely 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 starting place of the rule of thumb is anxious. the writer concludes that the specter of unending self-referentiality can simply be accounted for through recourse to Jacques Derrida's philosophy of deconstruction.
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Additional info for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law
Example text
Différance, in turn, denotes the endless differentiation of a sign’s meaningcontent in terms of the fugitive dissemination, proliferation, dissolution or dispersement of meaning, giving effect to an incessant play of synchronic-spatial distancing and diachronic-temporal delay—or deferral/distancing—in the production (and disintegration) of a sign’s meaning-content. There is no predetermined reference ground, fixed end point of argumentation, solid argumentative bedrock, firm foundation for judgment, or transcendental signified by means of which the sense (presumably) carried by a sign might, once and for all, be settled and locked up.
Yet, some illustrative examples will be given of the precedent ideology adopted in the six legal systems selected for the purpose in chapter 5 below. The idea is to test the validity of the modelling approach, and to provide a direct link to the results attained by the Bielefelder Kreis in its comparative study on precedents. The legal systems chosen for the relatively modest legal comparative part of the present study are: United States (State of New York), United Kingdom, France, Italy, Federal Republic of Germany and Finland.
The objective is far more modest, dictated by an insight into the inherent nature of the field of inquiry the Austinian speech act theory, the (suspicious) distinction established between the “method” and the “philosophy” of deconstruction, etc. ): a method of critical analysis of philosophical and literary language”: The Concise Oxford Dictionary, 350. 111 Derrida, above at n. 106, 28. 30 How to Do Things with Precedents concerned. In the study of precedents, there is no room for the empirically verifiable truths of a positivist theory of science, nor to the self-evident conceptual truths of Cartesian rationalism.