By Raimo Siltala
Analytical jurisprudence has been in general 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 exceptional from mere dicta? during this learn, the writer identifies six sorts of judicial precedent-ideology, and assessments them opposed to judicial stories 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 legislations. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or simply observable merely 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 rule of thumb is worried. the writer concludes that the specter of never-ending self-referentiality can merely be accounted for by way of 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
Interviews, 1974–1994 (Stanford University Press, California, 1995), 83. 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.
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. 96 Rejecting the CLS reception of Derrida and deconstruction, I will argue that any forthrightly instrumentalist reading of deconstruction counts as a misconception or mispresentation of what Derrida himself, and some of his more attentive or more “orthodox-minded” readers on the continent, have been doing when engaged in deconstruction.
On analytical philosophy in general, see also the entry in T. ), The Oxford Companion to Philosophy (Oxford University Press, 1995), 28–30. 84 Hart, above at n. 8, 189–95. Frame of Analysis 21 the impact of the positivist and analytical tenets can clearly be seen in the legal theoretical contributions of the authors mentioned, even if in a slightly modified form. In all, the book might be said to proceed from Wróblewski, Ross and Hart to Derrida, or from analytical positivism to a post-analytical philosophy of law, where the “final” or “ultimate” premises of law, and of the positivist-analytical frame, are critically unfolded and, eventually, subjected to radical questioning.