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

By Raimo Siltala

Analytical jurisprudence has been often silent at the position of precedent in criminal adjudication. what's the content material of a judge's precedent ideology, or the rule of thumb of precedent-recognition, by way of which the ratio of a case is to be wonderful from mere dicta? during this examine, the writer identifies six sorts of judicial precedent-ideology, and checks 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 legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or in simple terms observable merely 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 foundation of the rule of thumb is worried. the writer concludes that the specter of never-ending self-referentiality can in basic terms be accounted for through 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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In a wide sense, this can apply to the methods of the natural as well as the human sciences, but in the case of cultural objects, such as law, the object presented as a coherent whole is so presented on the assumption of some degree of internal rationality in the relevant human activity. 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.

Such a method of deconstruction denotes sharpened awareness of the concep85 J. Derrida, “Letter to a Japanese Friend”, in D. Wood and R. Bernasconi (eds), Derrida and Différance (Northwestern University Press, 1988), 3. S. Summers, American Legal Theory (Dartmouth, 1992), 430, n. 6. ), Dictionnaire encyclopédique de théorie et de sociologie du droit, above at n. , 133–4, esp. 135–7. Frame of Analysis 23 tual dichotomies operative in the text, and of the ideological bias that is brought into effect by privileging one or the other element within such dichotomies.

I had the privilege of acting as the secretary for the Bielefelder Kreis in its two meetings in Florence and Bologna in 1994, and in Tampere in 1996. 54 These were: Federal Republic of Germany, Finland, France, Italy, Norway, Poland, Spain, Sweden, United Kingdom, and United States (State of New York), plus the legal system of the European Community. Nine countries were included in the book Interpreting Statutes: A Comparative Study, above at n. 50. 55 Inclusion of the decisions of the International Court of Justice and the Court of Justice of the European Communities in the study was initially considered.

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