By Raimo Siltala
Analytical jurisprudence has been typically silent at the position of precedent in felony adjudication. what's the content material of a judge's precedent ideology, or the guideline of precedent-recognition, by way of which the ratio of a case is to be individual from mere dicta? during this learn, the writer identifies six different types of judicial precedent-ideology, and exams them opposed to judicial stories within the united kingdom, US, France, Italy, Germany and Finland. the writer indicates a redefinition of Lon Fuller's inner morality of legislations, and confronts basic questions on the normative nature of legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or basically observable in basic terms 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 beginning of the guideline is anxious. the writer concludes that the specter of never-ending self-referentiality can simply be accounted for via recourse to Jacques Derrida's philosophy of deconstruction.
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Extra resources for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law
104 Derrida, “Lettre à un ami japonais”, above at n. 85, 391. , 392. Frame of Analysis 27 philosophical analysis, deconstruction thus concerns the predicaments encountered at the very “ultimate” edges of Western philosophy. e. radical undecidability and différance. The structures or radical undecidability or equivocality are aligned with the unresolved character of the “ultimate” criteria behind the categories of Western ontology, successfully defying both the alternatives of double exclusion (neither/nor) and allencompassing inclusion (both/and).
1967), 275 ff. 60 Cambridge University Press, 1995. 61 Yale University Press, 1964. 62 Above at n. 4. 63 Harvard University Press, 1949. 64 Above at n. 8. 65 Above at n. 1. 66 Above at n. 23. 67 Oxford University Press, 1978. 68 Infortryck AB, 1983. 69 Kluwer, 1989. 70 Clarendon Press, Oxford, 1989. 71 D. , 1987. 72 Ashgate/Dartmouth, 1997. 73 Duncker & Humblot, Berlin, 1992. 74 Above at n. 50. 75 Above at n. 51. Frame of Analysis 19 is a different enquiry. 77 Law, according to the basic tenets of legal positivism, is positive law (jus positivum), as duly enacted by the legislator or issued by the courts, and not a collection of rules which might, or perhaps even ought to, find correspondence with the standards of ideal morals.
Bernasconi (eds), Derrida and Différance (Northwestern University Press, 1988), 3. S. Summers, American Legal Theory (Dartmouth, 1992), 430, n. 6. ), Dictionnaire encyclopédique de théorie et de sociologie du droit, above at n. , 133–4, esp. 135–7. Frame of Analysis 23 tual dichotomies operative in the text, and of the ideological bias that is brought into effect by privileging one or the other element within such dichotomies. e. 92 However, the CLS conception of deconstruction need not sustain a firm belief in the emancipatory effects brought into existence by reversing the binary dichotomies of the text.
A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law by Raimo Siltala