A Theory of Precedent: From Analytical Positivism to a by Raimo Siltala

By Raimo Siltala

Analytical jurisprudence has been regularly 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 amazing from mere dicta? during this examine, the writer identifies six forms of judicial precedent-ideology, and assessments them opposed to judicial reports 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 legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or basically observable simply 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 in simple terms be accounted for by way of 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

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I will unfold the contents of a judge’s intellectual toolbox vis-à-vis precedent-identification and precedent-following at the level of legal ideology, in order to give an adequate account of the methods of distinguishing the binding element (ratio decidendi) of a case from its argumentative context (obiter dicta), and of the ideological consequences to be drawn therefrom. In light of the comparative material collected and analysed by the Bielefelder Kreis, such precedent ideologies would seem to find a reasonably adequate match with the “law in action” of precedent-following, as will be argued in detail in chapter 5, below.

First, the theoretical and methodological frame of analysis will be presented concisely (chapter 1). The concept of a legal norm will be outlined in light of the recent, Dworkin-inspired legal rule/principle discourse, leading to a novel definition of the concept of a legal rule and legal principle, which will then be adjusted to the specific context of precedent-following (chapter 2). A novel theory of a judge’s precedent ideology will be set out in terms of the six main categories or “pure types”, and the relative merits and shortcomings of each of the key approaches to precedents will be considered briefly (chapter 3).

Ich bin dann geneigt, zu sagen: ‘So handle ich eben’ ”. Frame of Analysis 33 In the present treatise, Derrida is read as a radically non-conventional philosopher who puts forth the decisively post-metaphysical or, rather, premetaphysical question of the meta of Western metaphysics since Plato and Aristotle, obstinately “running up against the limits of language” and ignoring the bumps that might then emerge in the forehead of reason,120 in an openly selfdefeating effort of “saying the unsayable” or trying to account for the fugitive conditions of possibility and impossibility of Western philosophy itself.

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