By Dimitrios Kyritsis
ISBN-10: 1849463891
ISBN-13: 9781849463898
This significant e-book advances a clean philosophical account of the connection among the legislature and the courts, opposing the typical notion of legislations within which the legislatures basically create the legislation and the courts basically practice it. This notion has eclectic affinities with felony positivism, and, even though it can have been a useful highbrow device long ago, it now more and more generates extra difficulties than it solves. as a result, the booklet argues, criminal philosophers are at an advantage forsaking this belief. even as, they're requested to dismantle the philosophical and doctrinal infrastructure that has been according to it and which has been hitherto principally unquestioned. instead, the booklet bargains an alternate framework for realizing the position of courts and the legislature; a framework that is pretty anti-positivist and which builds on Ronald Dworkin's interpretive idea of legislations. in spite of the fact that, opposite to Dworkin, the booklet insists that felony responsibility is delicate to the location one occupies within the undertaking of governing. criminal interpretation isn't the solitary job of 1 super-judge, yet a collaborative job established via rules of institutional morality, similar to the separation of powers. furthermore, during this collaborative job, diverse individuals have an ethical responsibility to admire every one other's contributions. (Series: legislation and useful cause)
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Additional info for Shared Authority: Courts and Legislatures in Legal Theory
Sample text
How is law’s claim to authority distributed between the courts and the legislature in a C-L system with a practice of constitutional review of legislation? I shall examine three possible Razian answers to this question: 1) the legislature-only reading, 2) the division-of-labour reading; and 3) the dualistic reading. In each case, I shall assess whether these readings can plausibly be said to vindicate the Solution. ╇ The Legislature-only Reading Raz maintains that the law claims practical authority.
It does this, though, in a way that is easily reconcilable with their law-applying function. It is only after pre-existing law has run out that judges are called upon to exercise their discretionary powers. Finally, the exclusionary force of legislative edicts vis-à-vis judges is often qualified. In other words, the fact that there is a pre-existing norm that commands p does not exclude for courts all reasons that count in favour of and against p. In many legal systems, courts are empowered to disregard or even change a valid norm of the system if they think that some specified reason counts against it.
According to most positivists including Raz, jurisprudential inquiry must stay away from making moral evaluations. It must explain the essential features of law as it finds it. Of course, law plays a very important role in moral discourse. So, it is the kind of thing of which it is sensible to ask whether it is morally good or not. In fact, it is often a matter of the greatest urgency that it is good. But you have to first identify what it is before you can then ask those moral questions about it.