A Theory of Precedent: From Analytical Positivism to a Post-Analytical Ph by Raimo Siltala
A Theory of Precedent: From Analytical Positivism to a Post-Analytical Ph
Author: Raimo Siltala
Title: A Theory of Precedent: From Analytical Positivism to a Post-Analytical Ph
ISBN10: 1841131237
ISBN13: 978-1841131238
Format: .PDF .EPUB .FB2
Pages:
Publisher: Hart Publishing (July 1, 2001)
Language: English
Size pdf: 1252 kb
Size epub: 1364 kb
Rating: 4.8 ✪
Votes: 323
Category: Law
Subcategory: Legal Theory & Systems
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, and tests them against judicial experiences in the UK, US, France, Italy, Germany and Finland. The author suggests a redefinition of Lon Fuller's internal morality of law, and confronts fundamental questions about the normative nature of law. Is Kelsen's grundnorm or Hart's ultimate rule of recognition valid, or merely observable only in the practices and behavior of judges and other officials? The author claims that Hart is caught between Kelsen and J.L. Borges in so far as the origin of the rule is concerned. The author concludes that the threat of endless self-referentiality can only be accounted for by means of recourse to Jacques Derrida's philosophy of deconstruction.