By Raimo Siltala
Analytical jurisprudence has been quite often silent at the position of precedent in felony adjudication. what's the content material of a judge's precedent ideology, or the rule of thumb of precedent-recognition, through which the ratio of a case is to be individual from mere dicta? during this learn, the writer identifies six sorts of judicial precedent-ideology, and exams them opposed to judicial reviews 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 legislation. Is Kelsen's grundnorm or Hart's final rule of popularity legitimate, or in basic terms 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 starting place of the rule of thumb is worried. the writer concludes that the specter of never-ending self-referentiality can merely be accounted for through recourse to Jacques Derrida's philosophy of deconstruction.
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Additional info for A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law
119 Wittgenstein, Philosophische Untersuchungen—Philosophical Investigations (Basil Blackwell, Oxford, 1967), § 217 (p. 85/85e): “Habe ich die Begründungen erschöpft, so bin ich nun auf dem harten Felsen angelangt, und mein Spaten biegt sich zurück. Ich bin dann geneigt, zu sagen: ‘So handle ich eben’ ”. Frame of Analysis 33 In the present treatise, Derrida is read as a radically non-conventional philosopher who puts forth the decisively post-metaphysical or, rather, premetaphysical question of the meta of Western metaphysics since Plato and Aristotle, obstinately “running up against the limits of language” and ignoring the bumps that might then emerge in the forehead of reason,120 in an openly selfdefeating effort of “saying the unsayable” or trying to account for the fugitive conditions of possibility and impossibility of Western philosophy itself.
Cf. Derrida’s reflection in On the Name, above n. 106, 28: “the unlimited right to ask any question, to suspect all dogmatism, to analyze every presupposition, even those of the ethics or the politics of responsibility”. 119 Wittgenstein, Philosophische Untersuchungen—Philosophical Investigations (Basil Blackwell, Oxford, 1967), § 217 (p. 85/85e): “Habe ich die Begründungen erschöpft, so bin ich nun auf dem harten Felsen angelangt, und mein Spaten biegt sich zurück. Ich bin dann geneigt, zu sagen: ‘So handle ich eben’ ”.
99 If deconstruction is taken in such an instrumental, technical or methodological sense, then at least the effected erasure and the Aufhebung of the initial binary dichotomy, as brought into existence by the second move in “deconstruction”, ought to be taken into account as well. e. the unveiling of the self-divergent, ideologically biased or inherently indeterminate character of law, or the violent act of reducing law into politics or morals, is evidently not what is meant by such a cancelling/uplifting effect of deconstruction, laden with distinctively Hegelian overtones.