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A Theory of Precedent: From Analytical Positivism to a - download pdf or read online

By Raimo Siltala

Analytical jurisprudence has been generally silent at the function of precedent in criminal adjudication. what's the content material of a judge's precedent ideology, or the rule of thumb of precedent-recognition, via which the ratio of a case is to be distinct from mere dicta? during this research, the writer identifies six forms 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 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 beginning of the guideline is anxious. the writer concludes that the specter of never-ending self-referentiality can basically be accounted for via 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

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However, since analytical positivism needs ultimately to ground its assertions concerning law on something, that “something” will be subjected to a closer scrutiny at the end of this investigation, necessitating a decisive change in the frame of analysis adopted. It may well be that analytical positivism, if defined with the full-fledged rigour that is proclaimed in the methodological chapters of Kelsen’s Pure Theory of Law, is an intellectual position which cannot be sustained in a fully consistent manner.

117 The aim is to give an accurate description of the subject matter of study, but the very idea of presenting a “relatively coherent”, “well-ordered” or “structured” account of the phenomena being studied, based on the assumption of “some degree of internal rationality” to be found in them, denotes an obvious deviation from the ideals of pure descriptivity. The method of analytical model construction adopted in the first part of the present study is closely related to the Weberian ideal types and the idea of rational reconstruction of legal or social phenomena.

Interviews, 1974–1994, above at n. 100, 239 (emphasis in original). , 239–40. Cf. Derrida’s reflection in On the Name, above n. 106, 28: “the unlimited right to ask any question, to suspect all dogmatism, to analyze every presupposition, even those of the ethics or the politics of responsibility”. 119 Wittgenstein, Philosophische Untersuchungen—Philosophical Investigations (Basil Blackwell, Oxford, 1967), § 217 (p. 85/85e): “Habe ich die Begründungen erschöpft, so bin ich nun auf dem harten Felsen angelangt, und mein Spaten biegt sich zurück.

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