Reasoning with law
著者
書誌事項
Reasoning with law
Hart Publishing, 2001
- : hbk
- : pbk
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注記
Bibliography: p. [183]-193
Includes index
内容説明・目次
- 巻冊次
-
: hbk ISBN 9781841130705
内容説明
The reader is invited to follow a route that visits Fish's view of theory and practice,Raz's legal reasoning thesis, theoretical models of judicial review, Dworkin's right answer thesis, the law of the excluded middle and Lukasiewicz's development of three-valued logic, Wittgenstein's language games, and Moore's metaphysical realism. The destination is the practice at the heart of legal reasoning. It is suggested that this manifests the way in which the limitations of language and the incompleteness of human experience allow the opportunity for coherent development of the law and at the same time produce an inherent incoherence within the law. The central part of the book seeks to demonstrate how the problems of understanding legal reasoning replicate difficulties encountered in the philosophy of language, but challenges the attempts that have been made to harness approaches from within that discipline to illuminate legal reasoning. Instead it is argued that law provides an unrivalled test-bed for examining the limits of the capacity of our words, and that the study of law may be used to confront in a robust and illuminating manner the limitations of that discipline.
The final chapter considers some of the implications of recognising the incoherence at the heart of legal reasoning, commenting on an institutional approach to law, the legitimacy of law, legal definitions, different approaches to legal reasoning, the role of appellate courts, the general possibility of providing a theoretical model of law, the use of legal rules, and the nature of law's critical aperture. The book should be of interest to advanced undergraduate students (particularly on jurisprudence courses), postgraduate students, academics, and practitioners concerned to reflect on the nature of the discipline they practice.
目次
- Part 1 Preliminary studies: law, theory and practice - conflicting perspectives? - no conflict - no theory, preliminary observations, conflicts, taking theory out of conflict
- law, autonomy and reason - introduction, Raz's legal reasoning thesis, the legal epithet, some implications, wider issues
- a study on the judicial role: introduction, the theoretical controversy concerning judicial review, the two models of judicial review, the "undistributed" or "excluded" middle, "an all powerful government", a return to the realm of fairy tales, replacing fig leaves, concluding remarks
- excluded middles, rights answers and vagueness: introduction, right answers to hard cases, some general reflections, vagueness. Part 2 Reasoning with law: the uses of words - introduction, commencing an analysis, elementary analysis of a term, general terms, an illustration of particular/general terms, what fixes a general term?, talking of ideas, the state we are at
- some themes from Wittgenstein's "Philosophical Investigations" - introduction, a simple overview, the model considered, the game of games, conclusion
- an annex on realism
- words and concepts - a basic analysis, concepts requiring a participatory response, the significance of experience, conceptual development or conceptual dislocation
- implications.
- 巻冊次
-
: pbk ISBN 9781841132440
内容説明
The reader is invited to follow a route that visits Fish's view of theory and practice,Raz's legal reasoning thesis, theoretical models of judicial review, Dworkin's right answer thesis, the law of the excluded middle and Lukasiewicz's development of three-valued logic, Wittgenstein's language games, and Moore's metaphysical realism. The destination is the practice at the heart of legal reasoning. It is suggested that this manifests the way in which the limitations of language and the incompleteness of human experience allow the opportunity for coherent development of the law and at the same time produce an inherent incoherence within the law. The central part of the book seeks to demonstrate how the problems of understanding legal reasoning replicate difficulties encountered in the philosophy of language, but challenges the attempts that have been made to harness approaches from within that discipline to illuminate legal reasoning. Instead it is argued that law provides an unrivalled test-bed for examining the limits of the capacity of our words, and that the study of law may be used to confront in a robust and illuminating manner the limitations of that discipline.
The final chapter considers some of the implications of recognising the incoherence at the heart of legal reasoning, commenting on an institutional approach to law, the legitimacy of law, legal definitions, different approaches to legal reasoning, the role of appellate courts, the general possibility of providing a theoretical model of law, the use of legal rules, and the nature of law's critical aperture. The book should be of interest to advanced undergraduate students (particularly on jurisprudence courses), postgraduate students, academics, and practitioners concerned to reflect on the nature of the discipline they practice.
目次
- Part 1 Preliminary studies: law, theory and practice - conflicting perspectives?
- law, autonomy and reason
- a study on the judicial role
- excluded middles, right answers and vagueness. Part 2 Reasoning with law: the uses of words
- some themes from Wittgenstein's "Philosophical investigations"
- an annex on realism
- words and concepts
- implications.
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