By Douglas E. Edlin
ISBN-10:
ISBN-13: 1397805114803
ISBN-10:
ISBN-13: 1397805218464
ISBN-10: 0521846420
ISBN-13: 9780521846424
Felony students, philosophers, historians, and political scientists from Australia, Canada, New Zealand, the uk, and the us research the typical legislation via 3 of its vintage issues: principles, reasoning, and constitutionalism. Their essays, in particular commissioned for this quantity, provide a chance for thinkers from assorted jurisdictions and disciplines to speak to one another and to their wider viewers inside and past the typical legislation international. This ebook permits students and scholars to contemplate how those issues and ideas relate to each other. it is going to begin and maintain a extra inclusive and well-informed theoretical dialogue of the typical law's strategy, procedure, and constitution. it will likely be worthwhile to attorneys, philosophers, political scientists, and historians drawn to constitutional legislation, comparative legislations, judicial strategy, felony thought, legislations and society, felony historical past, democratic conception, political philosophy, and the connection of the typical legislation culture to different felony platforms of the realm.
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Example text
1995), 27–41 (defending analogical reasoning from results); Levi, An Introduction to Legal Reasoning, 1–19 (same). , Levi, An Introduction to Legal Reasoning, 1–19; Llewellyn, The Bramble Bush, 72–5 (arguing that courts are free either to maximize the effect of a precedent decision by applying a stated rule or to minimize its effect by distinguishing cases with dissimilar facts, as they wish). See generally, Brian Leiter, “American Legal Realism” in Martin P. Golding and William A. , The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2005).
In the nineteenth century, the House of Lords endorsed what appeared to be a rule model of precedent. Beamish v. Beamish, (1861) 9 HLC 274; London Tramways v. London County Council, [1898] AC 375. However, the House frequently distinguished cases (a practice we discuss below), and the House ultimately abandoned its position. See Zenon Bankowski, D. Neil MacCormick, and Geoffrey Marshall, “Precedent in the United Kingdom” in MacCormick and Summers, Interpreting Precedents, 326. The English approach had been much criticized as a source of rigidity, injustice, inconsistency, and disingenuous interpretation.
Michael Moore can be read as adopting this stance. See Moore, “Precedent, Induction, and Ethical Generalization” in Goldstein, Precedent in Law, 210 (“one sees the common law as being nothing else but what is morally correct, all things considered – with the hooker that among those things considered are some very important bits of institutional history which may divert the common law considerably from what would be morally ideal”). However, Moore also expresses sympathy, at least procedurally, with the model of principles described below.