By Raimo Siltala
Analytical jurisprudence has been generally silent at the position of precedent in felony 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 unique from mere dicta? during this examine, the writer identifies six kinds of judicial precedent-ideology, and checks 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 legislations, and confronts primary questions on the normative nature of legislations. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or in basic terms observable purely 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 rule of thumb is worried. the writer concludes that the specter of unending self-referentiality can basically 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
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. The objective is far more modest, dictated by an insight into the inherent nature of the field of inquiry the Austinian speech act theory, the (suspicious) distinction established between the “method” and the “philosophy” of deconstruction, etc.
Dictionnaire encyclopédique de théorie et de sociologie du droit (LGDJ, Paris, 1993), 461–3. The entry comprises legal positivism only, despite the more general title adopted in it. 81 In all, the following five criteria are given by Hart, above at n. 8, 253, note to p. e. non-cognitivism in ethics). Austin is said to have held the views expressed in (1), (2) and (3), but not those in (4) or (5); while Kelsen held the views expressed in (2), (3) and (5), but not those in (1) or (4). 83 Analytical philosophy has obtained some sober insights into the nature and function of language from the Oxford philosophy of ordinary language, known for its austere attitude towards all kind of metaphysical speculation.
Spivak, “Translator’s Preface”, in J. Derrida, Of Grammatology (The Johns Hopkins University, 1976), LXXII, where allusion is made to the Derrida-inspired “method of deconstruction” which has been employed within the circles of literary criticism. As Spivak rightly points out, such a notion of a “critical method”, and the conclusions derived by means of it, implies the (misplaced) ultimate reconciliation or locking up of the binary oppositions found operative in the text. Frame of Analysis 25 nification, to name but two examples of such infrastructures—are fully acknowledged, there cannot be any repeatable “method of deconstruction”, either.