By Raimo Siltala
Analytical jurisprudence has been typically silent at the position of precedent in felony adjudication. what's the content material of a judge's precedent ideology, or the rule of thumb of precedent-recognition, by way of which the ratio of a case is to be exceptional from mere dicta? during this examine, the writer identifies six different types of judicial precedent-ideology, and exams them opposed to judicial reports within the united kingdom, US, France, Italy, Germany and Finland. the writer indicates a redefinition of Lon Fuller's inner morality of legislations, and confronts primary questions about the normative nature of legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or simply 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 rule of thumb is anxious. the writer concludes that the specter of never-ending self-referentiality can merely be accounted for via recourse to Jacques Derrida's philosophy of deconstruction.
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Additional info for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law
107 On the self-effacing character of infrastructures, see J. Derrida, Dissemination (The Athlone Press, London, 1993), 157; Gasché, The Tain of the Mirror, above at n. 97, 150. L. Austin); rather than having blind faith in a picture-like relation between language and the order of things in the (external) world, as claimed by Wittgenstein in his Tractatus;108 and (7) having an alert eye on the tiniest crevices, cracks and fractures on the surface-structure and the deep-structure levels of the text; rather than having naive belief in the benevolence and sovereign might of the author of a text within the domain of linguistic signification.
Yet, since the feasible methods of precedent-identification, precedent-following and precedent-evading are, self-evidently, more developed and refined within precedentbased common law tradition, in contrast to the more statute-oriented civil law systems, arguments will, to a great extent, be drawn from the former when analysing the constituents of a judge’s precedent ideology. 7 . THEORETICAL FRAME OF REFERENCE : FROM ANALYTICAL POSITIVISM TO A POST - ANALYTICAL PHILOSOPHY OF LAW Analytical positivism is the theoretical frame of reference of the present discussion in a two-fold sense.
Interviews, 1974–1994, above at n. 100, 239 (emphasis in original). , 239–40. Cf. Derrida’s reflection in On the Name, above n. 106, 28: “the unlimited right to ask any question, to suspect all dogmatism, to analyze every presupposition, even those of the ethics or the politics of responsibility”. 119 Wittgenstein, Philosophische Untersuchungen—Philosophical Investigations (Basil Blackwell, Oxford, 1967), § 217 (p. 85/85e): “Habe ich die Begründungen erschöpft, so bin ich nun auf dem harten Felsen angelangt, und mein Spaten biegt sich zurück.
A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law by Raimo Siltala