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Vol 21 No 9 Sept/Oct 2016

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A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law

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Raimo SiltalaProfessor of Law, University of Helsinki, Finland

ISBN13: 9781841131238
ISBN: 1841131237
Published: November 2000
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £79.00

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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, among them judicial legislation, systemic construction of the underlying reasons of law in the Dworkinian sense, and a radical re-evaluation of the merits of a prior case in later adjudication, as envisioned by the American Realists. These competing models are tested against judicial experiences in the UK, US, France, Italy, Germany and Finland. By this means Lon Fuller’s famous ‘internal morality of law’ is shown to function rather poorly in the context of precedents, and the author therefore suggests a redefinition of the rule which makes it work for precedent. This, in turn leads the author to confront fundamental questions about the normative nature of law. Is Kelsen’s grundnorm or Hart’s ultimate rule of recognition a valid rule, in the image of legal rules proper, or is it merely a social fact, observable only in the practices and behaviour of judges and other officials? The author claims that Hart is caught between Kelsen and J.L. Borges, the late Argentinian fabulist, in so far as the ontology and epistemology of the rule of recognition are concerned. This leads the author to the conclusion that the two predicaments affecting analytical positivism, namely the threat of endless self-referentiality, or infinite regress, can only be accounted for by means of recourse to the philosophy of deconstruction as posited by Jacques Derrida.

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Part A How to do things with precedents: frame of analysis - Wroblewski on the three ideologies of judicial decision-making, Ross on a judges' normative ideology, Hart on the rule of recognition, object of inquiry - precedents and precedent-following, object of inquiry redefined - theoretical and philosophical premises of the ratio of a case as derived from the multi-level structure of law, legal systemic frame - precedents in the civil law and common law context, theoretical frame of reference - from analytical positivism to a post-analytical philosophy of law, auxiliary frame of reference - Derrida the critical legal studies and confrontation, questions on method - from analytical model construction to a radical questioning of the ultimate premises of law, objections and refutations; the concept of a legal norm - legal rules and principles - the idea of strong and weak legal imputation, Dworkin's challenge to legal positivism, Summers on the categories of legal formality, legal principles redefined as norms with low legal formality, rules, principles and background reasons of law, legal rules and legal principles/policies in the context of precedents; a theory of precedent ideology - terminological definitions, the models of precedent ideology, the realm of predetermined meanings - judicial reference, a lawgiver dressed in robe - judicial legislation, in search of the prior court's original intentions - judicial exegesis, an interplay of similarity and dissimilarity in precedent-following - reasoning by analogy and distinguishing, systemic construction of underlying reasons from a prior court decision or line of decisions, rejudging a prior court decision - judicial revaluation, axiological and teleological background reasons of law - judicial consequentialism and rightness reasons in judicial decision-making, the judgement intuitive - ""by feeling and not by judgement""; confrontations - operative precedent-norm conception, deontic mode - degree of legal formality involved, systemic statics of precedent-following, method of argumentation adopted in a precedent ideology, techniques of departure from a precedent, theoretical rationale of a precedent ideology; theory and practice of precedent-following. Part B A theory of the multi-level structure of law: towards a rule of law ideology for precedents; discourse-theoretical frame of law - ration and auctoritas and the felicity conditions of legal adjudication; the quest for the final premises of law - the infrastructures of legal norm constitution; the quest for the final premises of law - the infrastructures of judicial signification under precedent-following; summary. (Part Contents).