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A Theory of Precedent : From Analytical Positivism to a Post-Analytical Philosophy of Law.
Analytical jurisprudence has been mostly silent on the role of precedent in legal adjudication. What is the content of a judge''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 study, the autho...
| Clasificación: | Libro Electrónico |
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| Autor principal: | |
| Formato: | Electrónico eBook |
| Idioma: | Inglés |
| Publicado: |
London :
Bloomsbury Publishing,
2000.
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| Temas: | |
| Acceso en línea: | Texto completo |
Tabla de Contenidos:
- Half Title Page; Title Page; Title verso; Acknowledgments; Abbreviated Contents; Contents; Part A: How to Do Things with Precedents; 1. Frame of Analysis; 1. WRÓBLEWSKI ON THE THREE IDEOLOGIES OF JUDICIAL DECISION-MAKING; 2. ROSS ON A JUDGE'S NORMATIVE IDEOLOGY; 3. HART ON THE RULE OF RECOGNITION; 4. OBJECT OF INQUIRY: PRECEDENTS AND PRECEDENT-FOLLOWING; 5. OBJECT OF INQUIRY REDEFINED: THEORETICAL AND PHILOSOPHICAL PREMISES OF THE RATIO OF A CASE, AS DERIVED FROM THE MULTI-LEVEL STRUCTURE OF LAW; 6. LEGAL SYSTEMIC FRAME: PRECEDENTS IN THE CIVIL LAW AND COMMON LAW CONTEXT.
- 7. THEORETICAL FRAME OF REFERENCE: FROM ANALYTICAL POSITIVISM TO A POST-ANALYTICAL PHILOSOPHY OF LAW8. AUXILIARY FRAME OF REFERENCE: DERRIDA, THE CRITICAL LEGAL STUDIES AND DECONSTRUCTION; 9. QUESTIONS ON METHOD: FROM ANALYTICAL MODEL CONSTRUCTION TO A RADICAL QUESTIONING OF THE ULTIMATE PREMISES OF LAW (". . . UP AGAINST THE LIMITS OF LANGUAGE"); 10. OBJECTIONS AND REFUTATIONS; 2. The Concept of a Legal Norm: Legal Rules and Principles; 1. THE IDEA OF STRONG AND WEAK LEGAL IMPUTATION; 2. DWORKIN'S CHALLENGE TO LEGAL POSITIVISM; 3. SUMMERS ON THE CATEGORIES OF LEGAL FORMALITY.
- 4. LEGAL PRINCIPLES REDEFINED AS NORMS WITH LOW LEGAL FORMALITY5. RULES, PRINCIPLES, AND BACKGROUND REASONS OF LAW; 6. LEGAL RULES AND LEGAL PRINCIPLES/POLICIES IN THE CONTEXT OF PRECEDENTS; 3. A Theory of Precedent Ideology; 1. TERMINOLOGICAL DEFINITIONS; 2. THE MODELS OF PRECEDENT IDEOLOGY; 3. THE REALM OF PREDETERMINED MEANINGS: JUDICIAL REFERENCE; 4. A LAWGIVER, DRESSED IN ROBE: JUDICIAL LEGISLATION; 5. IN SEARCH OF THE PRIOR COURT'S ORIGINAL INTENTIONS: JUDICIAL EXEGESIS; 6. AN INTERPLAY OF SIMILARITY AND DISSIMILARITY IN PRECEDENT-FOLLOWING: REASONING BY ANALOGY AND DISTINGUISHING.
- 7. SYSTEMIC CONSTRUCTION OF UNDERLYING REASONS FROM A PRIOR COURT DECISION OR LINE OF DECISIONS8. REJUDGING A PRIOR COURT DECISION: JUDICIAL REVALUATION; 9. AXIOLOGICAL AND TELEOLOGICAL BACKGROUND REASONS OF LAW: JUDICIAL CONSEQUENTIALISM AND RIGHTNESS REASONS IN JUDICIAL DECISION-MAKING; 4. Confrontations; 1. OPERATIVE PRECEDENT-NORM CONCEPTION; 2. DEONTIC MODE: DEGREE OF LEGAL FORMALITY INVOLVED; 3. SYSTEMIC STATICS OF PRECEDENT-FOLLOWING: DEGREE OF SYSTEMATICITY IN A SET OF PRECEDENTS; 4. SYSTEMIC DYNAMICS OF PRECEDENT-FOLLOWING; 5. METHOD OF ARGUMENTATION ADOPTED IN A PRECEDENT IDEOLOGY.
- 6. TECHNIQUES OF DEPARTURE FROM A PRECEDENT7. THEORETICAL RATIONALE OF A PRECEDENT IDEOLOGY; 5. Theory and Practice of Precedent-Following; 1. JUDICIAL EXEGESIS WITH FORMALLY DEFINED RATIO DECIDENDI (UNITED KINGDOM); 2. A FLEXIBLE SYSTEM OF SUBSTANTIVE RULES UNDER LEGAL PRAGMATISM (UNITED STATES/STATE OF NEW YORK); 3. DIVERGENCE OF OFFICIAL ACTION AND PROFESSIONAL SELF-UNDERSTANDING OF THE JUDICIARY (FRANCE); 4. A FLOOD OF DISCORDANT PRECEDENTS UNDER MUTUALLY INCONSISTENT THEORETICAL PREMISES (ITALY).