By Raimo Siltala
Analytical jurisprudence has been usually silent at the function of precedent in criminal 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 special from mere dicta? during this research, the writer identifies six forms of judicial precedent-ideology, and checks them opposed to judicial reviews within the united kingdom, US, France, Italy, Germany and Finland. the writer indicates a redefinition of Lon Fuller's inner morality of legislation, and confronts basic questions on the normative nature of legislations. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or basically observable basically 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 guideline is anxious. the writer concludes that the specter of never-ending self-referentiality can basically be accounted for via recourse to Jacques Derrida's philosophy of deconstruction.
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Additional resources for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law
E. without having to presuppose the active interference of an attentive reader visà-vis the text quod erat deconstruendum (QED): “What is the law of this selfdeconstruction, this “auto-deconstruction”? Deconstruction is not a method or some tool that you apply to something from the outside. 103 Occasionally, Derrida has underscored the unique character of each individual “event” of deconstruction, likening it to a singular idiom or signature,104 whereby the idea of turning deconstruction into an easily applicable method of textual analysis and textual criticism is, of course, rejected.
190 ff. That collection of essays is focused on the method of the human sciences (Kulturwissenschaften) and the hermeneutical approach in sociology (verstehende Soziologie). 115 M. Weber, “Die ‘Objektivität’ sozialwissenschaftlicher und sozialpolitischer Erkenntnis”, in Weber, above at n. 114, 190–1. N. S. Summers, Interpreting Statutes: A Comparative Study (Dartmouth, 1991), 19 (emphasis in original). , 18–24. N. S. Summers (eds), Interpreting Precedents: A Comparative Study (Ashgate/Dartmouth, 1997), 7, 10–11.
105 Each time the inherently volatile, self-distancing and self-effacing outcomes of deconstruction are impatiently ascribed some conceptual identity, the very idea of transcending the given limits of language and Western philosophy collapses, as the infrastructures are drawn within the realm of Western metaphysics whose grounding/cancelling conditions of possibility (and impossibility) Derrida is self-defeatingly trying to describe. Then, a novel search needs to be initiated for the “final” premises of judgment, with an equally novel effort to escape the formal closure of Western metaphysics.
A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law by Raimo Siltala