: Reidar Edvinsson
: The Quest for the Description of the Law
: Springer-Verlag
: 9783540705024
: 1
: CHF 85,30
:
: Sonstiges
: English
: 113
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My dissertation for LLD (or JSD) Att beskriva rätten (To Describe Law), which was written under my bachelor surname of Andréasson, was presented for public exa- nation on Nov 4, 2004. Since then the text has been developed in two separate directions. On the one hand, three of the chapters have been made more accessible to students of jurisprudence and have been included in the second edition of the te- book Rättsfilosofi, samhälle och moral genom tiderna edited by Joakim Nergelius. On the other hand, the whole dissertation has been revised, translated and published as the present book. In the time that has passed since my dissertation, many things have changed. On the personal level, my friend and tutor, Aleksander Peczenick, was sadly taken away from my circle of colleagues. In contrast to that sad event, I have spent two nine-month periods on paternity leave, raising my two children, Selma and Bernhard. This past year, I have decided to move from theory to practice and have started working in a court of law. During my work on the dissertation, I had the opportunity to spend a rewarding term at Rutgers University in Camden, NJ visiting Professor Dennis Patterson. Since this book is a continuation of that project, it feels appropriate to repeat my thanks to Professor Patterson and STINT (The Swedish Foundation for International Cooperation in Research and Higher Education) for making that visit possible.
Preface5
Contents6
Part I10
Introduction11
Legal Positivism and Real Entities12
2.1 Introduction12
2.2 The Expositor and the Censor13
2.3 Facts Underlying Prescription13
2.4 Law Treated as a Real Entity 14
2.5 Description of the Real Entity16
2.6 Problems17
2.7 Utilitarianism18
2.8 Conclusion20
References21
H.L.A. Hart and the Framework of Legal Thought22
3.1 Introduction22
3.2 Hart’s Description23
3.3 Critical Observations regarding Hart’s Descriptive Project 26
3.4 Justification and Obligation 30
References33
Joseph Raz – the Social Thesis and the Sources Thesis34
4.1 Description 34
4.2 Objections38
References39
Ronald Dworkin and Restricted Legal Interpretation40
5.1 Introduction40
5.2 Outline of Dworkin’s Theory 41
5.3 Principles and Theoretical Disagreement42
5.4 The Separation of Principle and Policy 43
5.5 Dworkin’s Treatment of His Adversaries 45
5.6 Evaluation of Dworkin’s Argumentation 47
5.7 Conclusion51
References52
Part II53
Common Approaches in Reasoning54
The Modernist Approach55
7.1 Distinguishing Traits55
7.2 The Distinguishing Ideas and Classical Philosophy 56
7.3 Ideals for Description59
7.4 Realism and Anti-Realism59
References60
Scepticism, Relativism, Perspectivism …61
8.1 A Postmodernist Alternative to the Modernist Approach?61
8.2 Historical Vestiges of the Approach 61
8.3 Meaning and Truth 66
References81
Descriptive Theory of Law83
9.1 The Descriptive Ambition83
9.2 The Object Described by Descriptive Theory of Law 84
9.3 Arguments for Description 87
9.4 Value Judgements89
9.5 Conclusion90
References90
Interpretation91
10.1 Introduction91
10.2 Stanley Fish 92
References95
The Quest for the Description of the Law96
11.1 Consensus about Law 96
11.2 The Goal-Theory of Law97
11.3 Is and Ought98
11.4 Why Question the Quest?99
References100
Appendix101
The Originality and Power of the Throwing Thrown102
References106
Compilation of Law Cases107
Bibliography108
Index111