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Vol 24 No 12 Dec 19/Jan 20

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Cover of Merkin and Flannery on the Arbitration Act 1996

Merkin and Flannery on the Arbitration Act 1996

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Liberal Legality: A Unified Theory of Our Law

ISBN13: 9781108442367
Published: August 2019
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback (Hardback in 2018)
Price: £19.99
Hardback edition , ISBN13 9781108425452

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In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration.

He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment.

Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.

1. The idea of law-like law
2. Argument in a legal system
3. Practice of legality
3.1. Instituted discourse
3.2. Entrenched pursuit
3.3. Self-conception
4. Pursuit of the rule of law
5. Aspiration and impulse
5.1. Nomological legality
5.2. Liberal commitment
5.3. Failure of legality
5.4. Dual impulse
6. Deep duality - formal law
6.1. Rawls' first view of law
6.2. A contrary view
6.3. Law-like formality: Weber
6.4. Half-right views
7. Deep duality - law's ideals
7.1. A contrary view
7.2. Law-like ideals: Dworkin
7.3. Halves of a whole
7.4. Rawls' second view of law
8. Two perils for law
8.1. Liberal law's fears
8.2. Overcoming peril
8.3. Deeper danger
8.4. What follows
9. Fear of free ideals
9.1. Warring creeds
9.2. Moral skepticism
9.3. What's feared
10. Fear of open form: 10.1. Unsure concepts
10.2. Linguistic skepticism
10.3. What's feared
11. Modern liberal practice
11.1. Practice's view of law
11.2. Two views of disorder
11.3. Implications of disorder
12. Legality recapitulated.