By Gerald J. Postema

ISBN-10: 9048189594

ISBN-13: 9789048189595

A Treatise of criminal Philosophy and common Jurisprudence is the first-ever multivolume therapy of the problems in felony philosophy and basic jurisprudence, from either a theoretical and a old point of view. The paintings is geared toward jurists in addition to criminal and sensible philosophers. Edited via the well known theorist Enrico Pattaro and his workforce, this ebook is a classical reference paintings that may be of serious curiosity to criminal and functional philosophers in addition to to jurists and felony pupil in any respect degrees. The paintings is split The theoretical half (published in 2005), which includes 5 volumes, covers the most issues of the modern debate; the old half, which include six volumes (Volumes 6-8 released in 2007; Volumes nine and 10, released in 2009; quantity eleven released in 2011 and quantity 12 approaching in 2012/2013), debts for the improvement of felony idea from historical Greek instances throughout the 20th century. the full set might be accomplished with an index.

Volume eleven
Legal Philosophy within the 20th Century: the typical legislations World

Legal Philosophy within the 20th Century: the typical legislation global deals a clean, philosophically engaged, severe interpretation of the most currents of jurisprudential suggestion within the English-speaking global of the 20 th century. It tells the story of 2 lectures and their legacies: Oliver Wendell Holmes, Jr.’s “The course of legislations” (1897) and H.L.A. Hart’s Holmes Lecture, “Positivism and the Separation of legislations and Morals” (1958). Holmes’s radical problem to past due nineteenth century felony technology gave start to a wealthy number of competing methods to realizing legislations and felony reasoning from realism to fiscal jurisprudence to criminal pragmatism, from restoration of key parts of universal legislation jurisprudence and rule of legislations doctrine within the paintings of Llewellyn, Fuller and Hayek to root-and-branch assaults at the ideology of legislations by way of the severe felony reviews and Feminist routine. Hart, at the same time construction upon and remodeling the undations of Austinian analytic jurisprudence laid within the early twentieth century, brought rigorous philosophical option to English-speaking jurisprudence and provided a reinterpretation of felony positivism which set the schedule for analytic criminal philosophy to the tip of the century and past. A wide-ranging debate over the function of ethical rules in felony reasoning, sparked by way of Dworkin’s primary problem to Hart’s idea, generated competing interpretations of and primary demanding situations to center doctrines of Hart’s positivism, together with the character and function of conventions on the foundations of legislation and the method of philosophical jurisprudence.

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Extra info for A Treatise of Legal Philosophy and General Jurisprudence: Volume 11: Legal Philosophy in the Twentieth Century: The Common Law World

Sample text

Likewise, he argued, the supremacy of law “necessitates” parliamentary sovereignty because the only escape from the limits on official governmental action imposed by law is to seek further legal authorization from Parliament. , 271–2). It is hard to find this argument entirely persuasive. S. Allan maintains that the two doctrines can be reconciled if we attribute to Dicey a divided sovereignty doctrine according to which Parliament is accorded full legislative sovereignty, but the ordinary courts are accorded full adjudicative sovereignty (Allan 2001, 13–4).

First, it was not Austin’s work itself that exercised this remarkable 1 John Salmond is mentioned, but only in passing (Hart 1983, 61). Jurisprudence in the years between Austin and Hart was, according to Duxbury, “a onehouse town” (Duxbury 2005, 29). J. V. E. Holland’s Elements of Jurisprudence (1924; first published 1880). It is doubtful that Austin’s ponderous work was much read, but Holland’s book, an accessible statement of core Austinian themes, and others like it, secured the dominance of Austinian thought in English jurisprudence, and through the influential work of Dicey, Austinian ideas came likewise to dominate constitutional theory of the English Commonwealth.

Courts of law are constrained by “an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law” (Salmond 1924, 40). Thus, there is, in Salmond’s view, a fundamental difference between judgemade law—judicial decisions which, in virtue of a doctrine of stare decisis, have legislative effect—and the judicial practice of recognition that underlies the law in each legal system. L. Parker, editor of the 9th edition of Salmond’s Jurisprudence, points out that Roscoe Pound criticized both Salmond and Gray on this ground (1937 49f, 202–3).

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A Treatise of Legal Philosophy and General Jurisprudence: Volume 11: Legal Philosophy in the Twentieth Century: The Common Law World by Gerald J. Postema

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