Author: Timothy Endicott
Publisher: Oxford University Press
ISBN: 0192671561
Category : Law
Languages : en
Pages : 577
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Book Description
Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems.
Author: Scott Brewer
Publisher: Routledge
ISBN: 1135643091
Category : Philosophy
Languages : en
Pages : 146
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Book Description
At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.
Author: Raimo Siltala
Publisher: Bloomsbury Publishing
ISBN: 1847311504
Category : Law
Languages : en
Pages : 304
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Book Description
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 author identifies six types of judicial precedent-ideology, among them judicial legislation, systemic construction of the underlying reasons of law in the Dworkinian sense, and a radical re-evaluation of the merits of a prior case in later adjudication, as envisioned by the American Realists. These competing models are tested against judicial experiences in the UK, US, France, Italy, Germany and Finland. By this means Lon Fuller's famous 'internal morality of law' is shown to function rather poorly in the context of precedents, and the author therefore suggests a redefinition of the rule which makes it work for precedent. This, in turn leads the author to confront fundamental questions about the normative nature of law. Is Kelsen's grundnorm or Hart's ultimate rule of recognition a valid rule, in the image of legal rules proper, or is it merely a social fact, observable only in the practices and behaviour of judges and other officials? The author claims that Hart is caught between Kelsen and J.L. Borges, the late Argentinian fabulist, in so far as the ontology and epistemology of the rule of recognition are concerned. This leads the author to the conclusion that the two predicaments affecting analytical positivism, namely the threat of endless self-referentiality, or infinite regress, can only be accounted for by means of recourse to the philosophy of deconstruction as posited by Jacques Derrida.
Author: Christian Dahlman
Publisher: Oxford University Press
ISBN: 0198859309
Category : Law
Languages : en
Pages : 433
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Book Description
"Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law"-- from publisher's website.
Author: Christopher J. Peters
Publisher: Springer Science & Business Media
ISBN: 9400779518
Category : Law
Languages : en
Pages : 233
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Book Description
This volume presents a variety of both normative and descriptive perspectives on the use of precedent by the United States Supreme Court. It brings together a diverse group of American legal scholars, some of whom have been influenced by the Segal/Spaeth "attitudinal" model and some of whom have not. The group of contributors includes legal theorists and empiricists, constitutional lawyers and legal generalists, leading authorities and up-and-coming scholars. The book addresses questions such as how the Court establishes durable precedent, how the Court decides to overrule precedent, the effects of precedent on case selection, the scope of constitutional precedent, the influence of concurrences and dissents, and the normative foundations of constitutional precedent. Most of these questions have been addressed by the Court itself only obliquely, if at all. The volume will be valuable to readers both in the United States and abroad, particularly in light of ongoing debates over the role of precedent in civil-law nations and emerging legal systems.
Author: Rowan Cruft
Publisher: Oxford University Press
ISBN: 0199688621
Category : Law
Languages : en
Pages : 721
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Book Description
Readership: This book would be suitable for students, academics and scholars of law, philosophy, politics, international relations and economics
Author: Thomas Bustamante
Publisher: Nomos Verlagsgesellschaft
ISBN: 9783832976255
Category : Civil law
Languages : en
Pages : 0
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Book Description
This volume - the third issue of the Proceedings of the 24th IVR World Congress - contains a selection of papers on the general theme of "The Philosophy of Precedent." The foundations, legal nature, structure, strength, and uses of the case law were vividly debated at two special workshops dedicated to the study of legal precedent by a large number of scholars from around the world. The attention that the theme received at the Congress indicates a trend of growing interest on the topic of precedent among legal philosophers, legal theorists, and practitioners from all of the legal families and traditions, including those of the so-called Civil Law Systems. Taking into consideration this movement towards the universality of precedent-based reasoning in legal discourses, the book's essays provide an account of legal precedent which explains the connections between theoretical issues on the nature of precedent and practical queries over its foundations, structure, strength, and uses in contemporary legal systems. (Series: ARSP Beiheft - Vol. 133)
Author: Thomas Bustamante
Publisher:
ISBN: 9783515101684
Category : Law
Languages : en
Pages : 0
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Book Description
In this volume, the 3rd issue of the Proceedings of the 24th IVR World Congress, the reader will find a selection of papers on the general theme of ""The Philosophy of Precedent"". The foundations, legal nature, structure, strength and uses of the case law were vividly debated at two special workshops dedicated to the study of legal precedent by a large number of scholars from around the world. The attention that the theme received at the congress indicates a trend of growing interest on the topic of precedent among legal philosophers, legal theorists and practitioners from all of the legal fa.
Author: Dennis Klimchuk
Publisher: Oxford University Press
ISBN: 0192549871
Category : Law
Languages : en
Pages : 400
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Book Description
The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.
Author: Thomas Bustamante
Publisher: Franz Steiner Verlag Wiesbaden gmbh
ISBN: 9783515101509
Category : Law
Languages : en
Pages : 144
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Book Description
In this volume, the 3rd issue of the Proceedings of the 24th IVR World Congress, the reader will find a selection of papers on the general theme of "The Philosophy of Precedent". The foundations, legal nature, structure, strength and uses of the case law were vividly debated at two special workshops dedicated to the study of legal precedent by a large number of scholars from around the world. The attention that the theme received at the congress indicates a trend of growing interest on the topic of precedent among legal philosophers, legal theorists and practitioners from all of the legal families and traditions, including those of the so-called Civil Law Systems. Taking into consideration this movement towards the universality of precedent-based reasoning in legal discourses, the essays comprised in this volume provide an account of legal precedent which explains the connections between theoretical issues on the nature of precedent and practical queries over its foundations, structure, strength and uses in contemporary legal systems.
