Common Law Theory ( Cambridge Studies in Philosophy and Law )

Publication series ：Cambridge Studies in Philosophy and Law

Author： Douglas E. Edlin;

Publisher： Cambridge University Press‎

Publication year： 2007

E-ISBN: 9781316940679

P-ISBN(Paperback): 9780521846424

P-ISBN(Hardback): 9780521846424

Subject： D90 theory of law (jurisprudence)

Keyword：法律

Language： ENG

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Description

In this book, an international team of scholars analyse the common law through three of its classic themes: rules, reasoning and constitutionalism. In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyse the common law through three of its classic themes: rules, reasoning and constitutionalism. In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyse the common law through three of its classic themes: rules, reasoning and constitutionalism. In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world. Introduction Douglas E. Edlin; Part I. Common Law Rules: 1. Judges as rulemakers Larry Alexander and Emily Sherwin; 2. Some types of law John Gardner; Part II. Common Law Reasoning: 3. The principles of legal reasoning in the common law Melvin A. Eisenberg; 4. A similibus ad similia: analogical thinking in law Gerald J. Postema; 5. Reasoned decisions and legal theory David Dyzenhaus and Michael Taggart; Part III. Common Law Constitutionalism: 6. Common law, natural law, and the constitution James R. Stoner, Jr; 7. Text, context, and constitution: the common law as public reason T. R. S. Allan; 8. The myth of the common law constitution Jeffrey Goldsworthy. "...uniformly well written, accessible, and intellectually stimulating essays... this volume provides an excellent snapshot of some of the complications surrounding present-day theorizing about the common law within and across cultures."
-Ira L. Strauber, Grinnell College, Law and Politics Book Review "...Edlin has put together an exciting volume touching on a broad range of philosophical questions surrounding the nature of law and legal reasoning, and the foundations of political authority and sovereignty. It will be of great interest to anyone who is at all interested in such questions."
-Wil Waluchow, Notre Dame Philosophical Reviews

Chapter

Constitutionalism

Common Law Rules

1 Judges as Rule Makers

I. Moral Consequences of Judicial Decisions

II. Approaches to Precedent

A. The Natural Model of Precedent

B. The Rule Model of Precedent

C. Alternatives

III Precedent Rules Revisited

A. Identification of Precedent Rules

B. Preconditions for Precedential Authority

C. Decision Making in the Absence of a Precedent Rule

D. Overruling Precedent Rules

2 Some Types of Law

I. Legislated Law

II. Customary Law

III. Case Law

IV. Common Law

V. Positive Law

Common Law Reasoning

Chapter 3 The Principles of Legal Reasoning in the Common Law

I. Four Foundational Ideas

A. Courts Should Make Law

B. Doctrinal and Social Propositions

C. Legal Rules Can Be Justified Only by Social Propositions

D. Consistency in Legal Reasoning

II. The Basic Principle of Legal Reasoning

III. Modes of Legal Reasoning

A. Reasoning from Precedent

B. Distinguishing

C. Reasoning by Analogy

IV. Conclusion

4 A Similibus ad Similia: Analogical Thinking in Law

I. Judgment, Precedent, and Example

II. Analogical Reasoning: The Classical Common Law Conception

A. Reasoning with Cases, Like and Unlike

B. Resemblances Are a Slippery Tribe

III. The Dialectic of Rules and Cases

A. Particularism

B. Rule-Rationalism

C. Rule, Judgment, and the Untenability of Rule-Rationalism

IV. Analogical Thinking in Law

A.. Two Levels

B. Base-Level Analogical Thinking

C. Analogical Reasoning in Law: The Process

D. Analogical Reasoning in Law: Constraints

E. Analogy and the Sense of Justice

V. Analogical Thinking in Law: The Reflective Assessment Level

VI. Conclusion

5 Reasoned Decisions and Legal Theory

I. No Legal Obligation on Judges to Give Reasoned Decisions

II. Records, Reports, and Reasons

III. Some Important Features of the Common Law System

IV. Administrative Law

V. Functions of Courts: Findings and Reasons

VI. The Changing Court-scape

VII. The Pull of Justification

Common Law Constitutionalism

6. Natural Law, Common Law, and the Constitution

Common Law

Constitution

Natural Law

Conclusion

7 Text, Context, and Constitution: The Common Law as Public Reason

I. Introduction

II. Common Law and Statute

III. Reason and Authority

IV. Reason and Tradition

V. Conclusion

8 The Myth of the Common Law Constitution

I. Introduction

II. The Historical Record

III. Philosophical Analysis

Index

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