The nature of the common law
著者
書誌事項
The nature of the common law
Harvard University Press, 1991
1st pbk. ed
- : pbk
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注記
Bibliography: p. [163]-197
Includes index
内容説明・目次
内容説明
Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use-or should use-in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process.
The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases.
This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.
目次
1. Introduction 2. The Social Functions of Courts 3. Foundational Principles Objectivity Support Replicability Responsiveness 4. Social Propositions Moral Norms Policies Experiential Propositions 5. Standards for the Common Law The Standards of Social Congruence and Systemic Consistency and the Model of Double Coherence The Standard of Doctrinal Stability and the Real-World Model of the Common Law 6. Modes of Legal Reasoning Reasoning from Precedent Reasoning from Principle Reasoning by Analogy Reasoning from Doctrines Established in the Professional Literature Reasoning from Hypotheticals 7. Overruling and Other Modes of Overturning Overruling Prospective Overruling Transformation Overriding The Drawing of Inconsistent Distinctions Noninterpretive Elements of the Common Law 8. The Theory of the Common Law Text-based Theories of Law Justification and the Content of the Law The Generative Conception of the Common Law Notes Index
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