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A Theory of Precedent: From Analytical Positivism to a by Raimo Siltala

By Raimo Siltala

Analytical jurisprudence has been ordinarily silent at the position of precedent in criminal adjudication. what's the content material of a judge's precedent ideology, or the guideline of precedent-recognition, by way of which the ratio of a case is to be distinct from mere dicta? during this examine, the writer identifies six sorts 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 primary questions on the normative nature of legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or basically observable simply 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 foundation of the guideline is worried. the writer concludes that the specter of unending self-referentiality can in simple terms be accounted for through recourse to Jacques Derrida's philosophy of deconstruction.

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Bernasconi (eds), Derrida and Différance (Northwestern University Press, 1988), 3. S. Summers, American Legal Theory (Dartmouth, 1992), 430, n. 6. ), Dictionnaire encyclopédique de théorie et de sociologie du droit, above at n. , 133–4, esp. 135–7. Frame of Analysis 23 tual dichotomies operative in the text, and of the ideological bias that is brought into effect by privileging one or the other element within such dichotomies. e. 92 However, the CLS conception of deconstruction need not sustain a firm belief in the emancipatory effects brought into existence by reversing the binary dichotomies of the text.

94 Despite its—in my opinion—misplaced methodological reading of deconstruction, the outcomes of Koskenniemi’s study, as put forth in the critical or “deconstructive” part of that inquiry where the inherently unstable or volatile character of (international) law is presented, bear a closer affinity to the present inquiry than the CLS-oriented research on the average. However, his attempt at “saving the phenomena” at the very end of the study, where the new credo of being “normative in the small” is introduced,95 is less than entirely convincing and will not be adopted here.

N. 6 on p. XX, where reference is made to Balkin’s reading of Derrida and the CLS conception of law. , 479. , 496–7. 96 Balkin, “Deconstruction”, above at n. 88, 370; Balkin, “Deconstructive Practice and Legal Theory”, above at n. 90, 743–4. 97 R. Gasché, The Tain of the Mirror: Derrida and the Philosophy of Reflection (Harvard University Press, 1986), 2–3. , 121–76. Cf. V. Spivak, “Translator’s Preface”, in J. Derrida, Of Grammatology (The Johns Hopkins University, 1976), LXXII, where allusion is made to the Derrida-inspired “method of deconstruction” which has been employed within the circles of literary criticism.

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