the nature and authority of precedent

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The Nature And Authority Of Precedent

Author : Neil Duxbury
ISBN : 9781139470971
Genre : Law
File Size : 77. 6 MB
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Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

Interpreting Precedents

Author : D. Neil MacCormick
ISBN : 9781351926447
Genre : Law
File Size : 53. 87 MB
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This book contains a series of essays discussing the uses of precedent as a source of law and a basis for legal arguments in nine different legal systems, representing a variety of legal traditions. Precedent is fundamental to law, yet theoretical and ideological as well as legal considerations lead to its being differently handled and rationalised in different places. Out of the comparative study come the six theoretical and synoptic essays that conclude the volume.

The Power Of Precedent

Author : Michael J. Gerhardt
ISBN : 9780199795796
Genre : Law
File Size : 53. 55 MB
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The role that precedent plays in constitutional decision making is a perennially divisive subject among scholars of law and American politics. The debate rages over both empirical and normative aspects of the issue: To what extent are the Supreme Court, Congress, and the executive branch constrained by precedent? To what extent should they be? Taking up a topic long overdue for comprehensive treatment, Michael Gerhardt connects the vast social science data and legal scholarship to provide the most wide-ranging assessment of precedent in several decades. Updated to reflect recent legal cases, The Power of Precedent clearly outlines the major issues in the continuing debates on the significance of precedent and evenly considers all sides. For the Supreme Court, precedents take many forms, including not only the Court's past opinions, but also norms, historical practices, and traditions that the justices have deliberately chosen to follow. In these forms, precedent exerts more force than is commonly acknowledged. This force is encapsulated in the implementation and recognition of what Gerhardt calls the "golden rule of precedent," a major dynamic in constitutional law. The rule calls upon justices and other public authorities to recognize that since they expect others to respect their own precedents, they must provide the same respect to others' precedents. Gerhardt's extensive exploration of precedent leads him to formulate a more expansive definition of it, one that encompasses not only the prior constitutional decisions of courts but also the constitutional judgments of other public authorities. Gerhardt concludes his study by looking at what the future holds for the concept, as he examines the decisions and attitudes toward precedent exhibited by the shift from the Rehnquist to the Roberts Court. Authoritative and incisive, Gerhardt presents an in-depth look at this central yet understudied phenomenon at the core of all constitutional conflicts and one of undeniable importance to American law and politics. Ultimately, The Power of Precedent vividly illustrates how constitutional law is made and evolves both in and outside of the courts.

Precedent In English Law

Author : Rupert Cross
ISBN : 9780191024443
Genre : Law
File Size : 38. 95 MB
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This fourth edition of Precedent in English Law presents a basic guide to the current doctrine of precedent in England, set in the wider context of the jurisprudential problems which any treatment of this topic involves. Such problems include the nature of _ratio_ _decidendi_ of a precedent and of its binding force, the significance of precedents alongside other sources of law, their role in legal reasoning, and the account which must be taken of them by any general theory of law. Considerable re-writing has been undertaken to update case-law and take account of the possible implications for the doctrine of precedent of the impact of European Community law, making it an indispensable work of reference for readers interested in the past history, present state, and future developments of English rules of precedent.

Between Authority And Interpretation

Author : Joseph Raz
ISBN : 9780191580345
Genre : Law
File Size : 22. 95 MB
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In this book Joseph Raz develops his views on some of the central questions in practical philosophy: legal, political, and moral. The book provides an overview of Raz's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence. It asks how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. Raz offers responses to some critical reactions to his theory of authority, adumbrating, and modifying the theory to meet some of them. The final part of the book brings together for the first time Raz's work on the nature of interpretation in law and the humanities. It includes a new essay explaining interpretive pluralism and the possibility of interpretive innovation. Taken together, the essays in the volume offer a valuable introduction for students coming for the first time to Raz's work in the philosophy of law, and an original contribution to many of the current debates in practical philosophy.

Law And Judicial Duty

Author : Philip HAMBURGER
ISBN : 9780674038196
Genre : Law
File Size : 89. 9 MB
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Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.

The Nature Of The Judicial Process

Author : Benjamin Nathan Cardozo
ISBN : UOM:39015005010262
Genre : Judges
File Size : 53. 92 MB
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In this famous treatise, a Supreme Court Justice describes the conscious and unconscious processes by which a judge decides a case. He discusses the sources of information to which he appeals for guidance and analyzes the contribution that considerations of precedent, logical consistency, custom, social welfare, and standards of justice and morals have in shaping his decisions.

Thinking Like A Lawyer

Author : Frederick Schauer
ISBN : 9780674032705
Genre : Law
File Size : 44. 49 MB
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This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof.

Constitutionalism Human Rights Separation Of Powers

Author : G. M. Pikis
ISBN : 9789004152410
Genre : Law
File Size : 37. 55 MB
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The Constitution incorporates human rights as a dominant feature of its order pervading every aspect of the law and has been the sole source of authority, with the Judiciary cast as a watchdog trusted to ensure that no branch of the State transgresses the boundaries of its powers. The book chronicles through the case law of the Supreme Court, a precedent of constitutionalism worthy of the attention of every scholar of constitutional law.

Precedent In The Indian Legal System

Author : A. Lakshminath
ISBN : STANFORD:36105043545602
Genre : Law
File Size : 37. 55 MB
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