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A Theory of Precedent : from Analytical Positivism to a Post-Analytical Philosophy of Law - Raimo Siltala

A Theory of Precedent

from Analytical Positivism to a Post-Analytical Philosophy of Law

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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.

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illuminating and interesting ...well written stimulating William Lucy Cambridge Law Journal January 2001

Acknowledgmentsp. vii
How to Do Things with Precedents
Frame of Analysisp. 3
Wroblewski on the Three Ideologies of Judicial Decision-Makingp. 3
Ideology of bound judicial decision-makingp. 3
Ideology of free judicial decision-makingp. 4
Ideology of legal and rational judicial decision-makingp. 5
Ross on a Judge's Normative Ideologyp. 6
Hart on the Rule of Recognitionp. 8
Object of Inquiry: Precedents and Precedent-Followingp. 10
Object of Inquiry Redefined: Theoretical and Philosophical Premises of the Ratio of a Case, as Derived from the Multi-Level Structure of Lawp. 14
Legal Systemic Frame: Precedents in the Civil Law and Common Law Contextp. 15
Theoretical Frame of Reference: From Analytical Positivism to a Post-Analytical Philosophy of Lawp. 17
Auxiliary Frame of Reference: Derrida, the Critical Legal Studies and Deconstructionp. 22
Questions on Method: From Analytical Model Construction to a Radical Questioning of the Ultimate Premises of Law ("... up against the limits of language")p. 29
Objections and Refutationsp. 34
The Concept of a Legal Norm: Legal Rules and Principlesp. 41
The Idea of Strong and Weak Legal Imputationp. 41
Dworkin's Challenge to Legal Positivismp. 43
Summers on the Categories of Legal Formalityp. 47
Legal Principles Redefined as Norms with Low Legal Formalityp. 49
Rules, Principles, and Background Reasons of Lawp. 54
Legal Rules and Legal Principles/Policies in the Context of Precedentsp. 58
A Theory of Precedent Ideologyp. 65
Terminological Definitionsp. 65
The Models of Precedent Ideologyp. 67
Fragments of a judge's precedent ideologyp. 67
General outline of the models of precedent ideology and their relation to Wroblewski's ideologies of judicial decision-makingp. 76
The Realm of Predetermined Meanings: Judicial Referencep. 78
A Lawgiver, Dressed in Robe: Judicial Legislationp. 80
In Search of the Prior Court's Original Intentions: Judicial Exegesisp. 84
Reconstructing the ratio from the normative premises of a prior decisionp. 85
Facts treated as material by the prior courtp. 87
An Interplay of Similarity and Dissimilarity in Precedent-Following: Reasoning by Analogy and Distinguishingp. 91
Systemic Construction of Underlying Reasons from a Prior Court Decision or Line of Decisionsp. 96
Evolvement of legal systematicity in Dworkin's theory of lawp. 96
"[T]he best constructive interpretation of past legal decisions"p. 97
Rejudging a Prior Court Decision: Judicial Revaluationp. 102
Axiological and Teleological Background Reasons of Law: Judicial Consequentialism and Rightness Reasons in Judicial Decision-Makingp. 105
The Judgment Intuitive: "by feeling and not by judgment"p. 107
Confrontationsp. 109
Operative Precedent-Norm Conceptionp. 109
Deontic Mode: Degree of Legal Formality Involvedp. 110
Systemic Statics of Precedent-Following: Degree of Systematicity in a Set of Precedentsp. 110
Systemic Dynamics of Precedent-Followingp. 111
Systemic dynamics, I: legal source doctrine and other factors which exert influence on the binding force of the ratio of a casep. 111
Systemic dynamics, II: degree of binding force of the ratio of a casep. 114
Method of Argumentation Adopted in a Precedent Ideologyp. 115
Techniques of Departure from a Precedentp. 116
Theoretical Rationale of a Precedent Ideologyp. 117
Theory and Practice of Precedent-Followingp. 121
Judicial Exegesis with Formally Defined Ratio Decidendi (United Kingdom)p. 121
A Flexible System of Substantive Rules under Legal Pragmatism (United States/State of New York)p. 123
Divergence of Official Action and Professional Self-Understanding of the Judiciary (France)p. 127
A Flood of Discordant Precedents under Mutually Inconsistent Theoretical Premises (Italy)p. 128
A Free-Floating System of Outweighable and Formally Binding Reasons (Federal Republic of Germany)p. 132
Judicial Positivism under a Perplexed Relation of a Case's Headnote and the Whole of Judicial Reasoning (Finland)p. 135
Preliminary outline of the precedent ideology adopted by the Finnish Supreme Court of Justicep. 135
The doctrine of judicial headnotes, defined as equal with the ratio decidendi of a casep. 137
A critique of headnote-oriented judicial positivismp. 141
The author's preference: case-to-case reasoning by analogy and distinguishingp. 142
Conclusion: From Pure Types of Precedent Ideology to the Law in Action in Precedent-Following (A Tale of Grasshoppers, Beehives and Anthills)p. 143
A Theory of the Multi-Level Structure of Law
Towards a Rule of Law Ideology for Precedentsp. 151
Prologue: Surface-Structure Level of Operative Precedent-Identification and Precedent-Followingp. 151
General Outline of the Multi-Level Theory of Law and Its Relation to Tuori's Conception of Lawp. 152
The three levels of law, presented in the form of a diagramp. 152
Tuori on the multi-layered structure of lawp. 155
Confrontations with Tuori's theory of lawp. 157
Relations between the levels of law: condition of possibility, professional morality of aspiration, and relation of restructuringp. 158
Reframing the Ideological Premises of Precedent-Followingp. 160
Fragments of a judge's precedent ideology reconsideredp. 160
A formal definition of the rule of precedent recognitionp. 163
A Rule of Law Ideology for Precedents?p. 165
Fuller, The Internal Morality of Lawp. 165
Six facets of a rule of law ideology for precedent-followingp. 168
The "View from the Bench": A Rule of Law Ideology for Precedents Contested by the Bad Faith Argumentp. 175
Discourse-Theoretical Frame of Law: Ratio and Auctoritas, and the Felicity Conditions of Legal Adjudicationp. 179
The Discourse-Theoretical Identity of Law under Analytical Positivismp. 179
The Axiomatic Ground of Legal Discourse: Ratio and Auctoritasp. 179
The concept of legal validityp. 182
The concept of legal rationalityp. 183
Felicities and Infelicities of Legal Discoursep. 185
J.L. Austin on misfires and abuses of speech actsp. 185
Alexy on the meta-rules of rational legal discoursep. 187
Claim to correctness, claim to authority, and pursuit of legitimacyp. 189
The "View from the Bench" Revisited: The Felicity Conditions of Legal Adjudication and the Quest for Empirical Legitimacyp. 192
Limits of the Discourse-Theoretical Frame of Law: Meta-Rules, Speech Acts and Social Institutionsp. 195
The Quest for the Final Premises of Law--I: The Infrastructures of Legal Norm Constitutionp. 197
Prologue: How Long Is the Standard Metre?p. 197
The Infra-Structures of Legal Norm Constitution: The Constitutive A Priori of Lawp. 201
The Final Validity Ground of Law: Validity of Legal Validityp. 204
Validity in Kelsen's Pure Theory of Lawp. 205
Validity based on a moral and/or political validity conception: Peczenik and MacCormick on the final validity ground of lawp. 211
Validity based on normative validity itself: Aarnio and the theory of legal autopoiesis on the final validity ground of lawp. 212
The inherent limits of the legal positivist framep. 214
Rationality of Legal Rationality: The Ultimate Ground of Legal Justifiabilityp. 215
Wroblewski and MacCormick on the final premises of legal rationalityp. 215
From the meta-rules of legal rationality to a Wittgensteinian form of life: Aarnio and Peczenik on the final premises of legal rationalityp. 217
Recognition of the Rule of Recognitionp. 221
Norm/Fact Character of the Ultimate Rule of Recognitionp. 221
Between Kelsen and Borges: Is the ultimate rule of recognition a norm or a fact?p. 221
A shift from ontology to epistemology: external statements of fact and internal statements of validityp. 226
Conclusion: Is There a "Standard Norm" for Law?p. 229
The Quest for the Final Premises of Law--II: The Infrastructures of Judicial Signification under Precedent-Followingp. 233
Prologue: "an infallible paradigm of identity"?p. 233
Differance ("this almost nothing of the unpresentable")p. 235
Syntagmatic and Paradigmatic Dimensions of Language, and the A Priori of a Discourse Formationp. 238
An Outline of the Four Paradigms of Judicial Signification under Precedent-Following and Related Judicial Imageryp. 239
Ascription of Meaning-Content to the Ratio of a Case under the Four Paradigms of Judicial Signification under Precedent-Followingp. 242
Legislative paradigm of precedent-following: self-referentiality and the reproduction of original identityp. 242
Dispute-solving paradigm of precedent-following: contextual sense-differentiation by an incessant interplay of deferral/distancingp. 243
Systemic paradigm of precedent-following: sense-differentiation by privileging the latent signification structure beneath the manifest precedent-norm or reasons formulationp. 244
Extra-legal paradigm of judicial adjudication: production of radical dissimilarity by displacement of the legal premisesp. 245
In Conclusion: Differance and Other Infrastructures of Judicial Signification under Precedent-Followingp. 246
Summaryp. 249
How to Read Precedentsp. 249
From Analytical Positivism to a Deconstruction of Lawp. 255
Conceptual Analytics of Precedent-Norm Formation, Presented in the Form of a Triangle (or "Iceberg")p. 260
Theory and Practice of Precedentsp. 262
Reading the Law/Skating on Thin Icep. 264
Bibliographyp. 269
Indexp. 279
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131238
ISBN-10: 1841131237
Series: Legal Theory Today Ser.
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 288
Published: 30th November 2000
Country of Publication: GB
Dimensions (cm): 23.5 x 15.88  x 2.54
Weight (kg): 0.61
Edition Number: 1