Author: P. S. Atiyah
Publisher: Oxford University Press
Release Date: 1991
This original book first offers a new way of analysing styles of legal reasoning - between more 'formal' and more 'substantive' styles, then analyses the differences between English and American legal thought and practice, suggesting that the English system is more 'formal' and the American more 'substantive'.
Author: Martin P. Golding
Publisher: Broadview Press
Release Date: 2001-03-02
In a book that is a blend of text and readings, Martin P. Golding explores legal reasoning from a variety of angles—including that of judicial psychology. The primary focus, however, is on the ‘logic’ of judicial decision making. How do judges justify their decisions? What sort of arguments do they use? In what ways do they rely on legal precedent? Golding includes a wide variety of cases, as well as a brief bibliographic essay (updated for this Broadview Encore Edition).
This book is an updated and revised edition of Fundamentals of Legal Argumentation published in 1999. It discusses new developments that have taken place in the past 15 years in research of legal argumentation, legal justification and legal interpretation, as well as the implications of these new developments for the theory of legal argumentation. Almost every chapter has been revised and updated, and the chapters include discussions of recent studies, major additions on topical issues, new perspectives, and new developments in several theoretical areas. Examples of these additions are discussions of recent developments in such areas as Habermas' theory, MacCormick's theory, Alexy's theory, Artificial Intelligence and law, and the pragma-dialectical theory of legal argumentation. Furthermore it provides an extensive and systematic overview of approaches and studies of legal argumentation in the context of legal justification in various legal systems and countries that have been important for the development of research of legal argumentation. The book contains a discussion of influential theories that conceive the law and legal justification as argumentative activity. From different disciplinary and theoretical angles it addresses such topics as the institutional characteristics of the law and the relation between general standards for moral discussions and legal standards such as the Rule of Law. It discusses patterns of legal justification in the context of different types of problems in the application of the law and it describes rules for rational legal discussions. The combination of the sound basis of the first edition and the discussions of new developments make this new edition an up-to-date and comprehensive survey of the various theoretical influences which have informed the study of legal argumentation. It discusses salient backgrounds to this field as well as major approaches and trends in the contemporary research. It surveys the relevant theoretical factors both from various continental law traditions and common law countries.
Author: Douglas Fisher
Publisher: Edward Elgar Publishing
Release Date: 2013-09-30
ŠI am afraid that an endorsement of this kind, however condense and packed with praise, cannot do justice to Doug Fisher�s latest book. A respected and seasoned environmental law scholar, Fisher skilfully reminds us that law is about language and that
Author: Raimo Siltala
Publisher: Bloomsbury Publishing
Release Date: 2000-11-30
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.
Author: David d'Avray
Publisher: Cambridge University Press
Release Date: 2015-03-30
This analysis of royal marriage cases across seven centuries explains how and how far popes controlled royal entry into and exits from their marriages. In the period between c.860 and 1600, the personal lives of kings became the business of the papacy. d'Avray explores the rationale for papal involvement in royal marriages and uses them to analyse the structure of church-state relations. The marital problems of the Carolingian Lothar II, of English kings - John, Henry III, and Henry VIII - and other monarchs, especially Spanish and French, up to Henri IV of France and La Reine Margot, have their place in this exploration of how canon law came to constrain pragmatic political manoeuvring within a system increasingly rationalised from the mid-thirteenth century on. Using documents presented in the author's Dissolving Royal Marriages, the argument brings out hidden connections between legal formality, annulments, and dispensations, at the highest social level.
Author: Martijn Hesselink
Publisher: Kluwer Law International
Release Date: 2002-10-16
In The New European Private Law, Martijn W. Hesselink presents a revised and supplemented collection of essays written over the last five years on European private law. He argues that the creation of a common private law in Europe is not merely a matter of rediscovering the old ius commune or of neutrally establishing the present 'common core' which may be codified in a European Civil Code. Rather, it is a matter of making choices, some of which may be highly controversial. In this book he discusses some of the most important choices which will have to be made with regard to culture, principles, politics, models, rights, concepts and structure in the new European private law.
Author: Armin von Bogdandy
Publisher: OUP Oxford
Release Date: 2014-07-24
The vast majority of all international judicial decisions have been issued since 1990. This increasing activity of international courts over the past two decades is one of the most significant developments within the international law. It has repercussions on all levels of governance and has challenged received understandings of the nature and legitimacy of international courts. It was previously held that international courts are simply instruments of dispute settlement, whose activities are justified by the consent of the states that created them, and in whose name they decide. However, this understanding ignores other important judicial functions, underrates problems of legitimacy, and prevents a full assessment of how international adjudication functions, and the impact that it has demonstrably had. This book proposes a public law theory of international adjudication, which argues that international courts are multifunctional actors who exercise public authority and therefore require democratic legitimacy. It establishes this theory on the basis of three main building blocks: multifunctionality, the notion of an international public authority, and democracy. The book aims to answer the core question of the legitimacy of international adjudication: in whose name do international courts decide? It lays out the specific problem of the legitimacy of international adjudication, and reconstructs the common critiques of international courts. It develops a concept of democracy for international courts that makes it possible to constructively show how their legitimacy is derived. It argues that ultimately international courts make their decisions, even if they do not know it, in the name of the peoples and the citizens of the international community.
Author: Constantine N. Nana
Publisher: Cambridge Scholars Publishing
Release Date: 2010-02-19
It is now trite knowledge that corporate criminal liability is laced with a large number of contradictions that seriously threaten its legitimacy. This book demonstrates that these contradictions may be avoided if courts consistently refer to an adequate mechanism of imputation. It proposes parameters for evaluating mechanisms of imputation and shows how an adequate mechanism may be determined. This distinctive book provides students and practitioners with an exposition of the current substantive and procedural corporate criminal law and considers other ways of regulating the activities of corporations than using the criminal law. It also addresses the distinction between internal knowledge and external knowledge with reference to pedigreed and non-pedigreed rules and shows how the concept of discursive dilemma may be employed to aggregate the acts and intents of agents for the purposes of imputing these acts and intents to accused corporations and holding them liable. This book is highly recommended for students of criminology, law and business. It should also be of interest to defence counsels, prosecutors and regulatory agencies that either represent and advise corporate defendants or seek to hold corporations accountable for the breach of criminal law standards.
Author: Mark Bovens
Publisher: OUP Oxford
Release Date: 2014-05-15
Genre: Political Science
Over the past two decades public accountability has become not only an icon in political, managerial, and administrative discourse but also the object of much scholarly analysis across a broad range of social and administrative sciences. This handbook provides a state of the art overview of recent scholarship on public accountability. It collects, consolidates, and integrates an upsurge of inquiry currently scattered across many disciplines and subdisciplines. It provides a one-stop-shop on the subject, not only for academics who study accountability, but also for practitioners who are designing, adjusting, or struggling with mechanisms for accountable governance. Drawing on the best scholars in the field from around the world, The Oxford Handbook of Public Accountability showcases conceptual and normative as well as the empirical approaches in public accountability studies. In addition to giving an overview of scholarly research in a variety of disciplines, it takes stock of a wide range of accountability mechanisms and practices across the public, private and non-profit sectors, making this volume a must-have for both practitioners and scholars, both established and new to the field.
Author: Neil Duxbury
Publisher: Cambridge University Press
Release Date: 2008-04-03
Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.