By Raimo Siltala
Analytical jurisprudence has been as a rule silent at the position of precedent in criminal adjudication. what's the content material of a judge's precedent ideology, or the guideline of precedent-recognition, through which the ratio of a case is to be exclusive from mere dicta? during this learn, the writer identifies six sorts of judicial precedent-ideology, and assessments 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 legislation, and confronts primary questions on the normative nature of legislations. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or only observable in simple 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 starting place of the rule of thumb is anxious. the writer concludes that the specter of unending self-referentiality can merely be accounted for by way of 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
M. Balkin, “Deconstruction”, in D. ), A Companion to Philosophy of Law and Legal Theory (Blackwell Publishers, Oxford, 1996), 367–73, esp. 367–8; cf. J. Brison and W. , 189. 89 Balkin, “Nested Oppositions” (1989) 99 Yale Law Journal 1669, 1671; Balkin, “Deconstruction”, above at n. 88, 369. 90 Balkin, “Deconstructive Practice and Legal Theory” (1987) 96 Yale Law Journal 743, 765 (“deconstruction operates by a momentary reversal of privileging”) and 786 (“tool of analysis”). 91 To be more precise: contract law “describes itself” as more private than public, interpretation deals with objective rather than subjective understanding of the contractual terms, and consideration deals more with form than substance: Dalton, “An Essay in the Deconstruction of Contract Doctrine” (1985) 94 Yale Law Journal 997, 1000–3.
111 9 . QUESTIONS ON METHOD : FROM ANALYTICAL MODEL CONSTRUCTION TO A RADICAL QUESTIONING OF THE ULTIMATE PREMISES OF LAW (“. . UP AGAINST THE LIMITS OF LANGUAGE ”) In the first part of this treatise, precedents are analysed with the plain intention of analytical model construction. By means of the various models or pure types of precedent ideology, I do not claim to have anything like a privileged access to a judge’s state of mind at the moment of his formulating the ratio of a prior case, to be then applied to the facts of the novel case at hand.
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.
A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law by Raimo Siltala