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The Quest for the Description of the Law

:	Reidar Edvinsson
:	The Quest for the Description of the Law
:	Springer-Verlag
:	9783540705024
:	1
:	CHF 85.70
:

:	Sonstiges
:	English

:	113
:	Wasserzeichen/DRM
:	PC/MAC/eReader/Tablet
:	PDF

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.

	Preface	5
	Contents	6
	Part I	10
	Introduction	11
	Legal Positivism and Real Entities	12
	2.1 Introduction	12
	2.2 The Expositor and the Censor	13
	2.3 Facts Underlying Prescription	13
	2.4 Law Treated as a Real Entity	14
	2.5 Description of the Real Entity	16
	2.6 Problems	17
	2.7 Utilitarianism	18
	2.8 Conclusion	20
	References	21
	H.L.A. Hart and the Framework of Legal Thought	22
	3.1 Introduction	22
	3.2 Hart’s Description	23
	3.3 Critical Observations regarding Hart’s Descriptive Project	26
	3.4 Justification and Obligation	30
	References	33
	Joseph Raz – the Social Thesis and the Sources Thesis	34
	4.1 Description	34
	4.2 Objections	38
	References	39
	Ronald Dworkin and Restricted Legal Interpretation	40
	5.1 Introduction	40
	5.2 Outline of Dworkin’s Theory	41
	5.3 Principles and Theoretical Disagreement	42
	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 Conclusion	51
	References	52
	Part II	53
	Common Approaches in Reasoning	54
	The Modernist Approach	55
	7.1 Distinguishing Traits	55
	7.2 The Distinguishing Ideas and Classical Philosophy	56
	7.3 Ideals for Description	59
	7.4 Realism and Anti-Realism	59
	References	60
	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
	References	81
	Descriptive Theory of Law	83
	9.1 The Descriptive Ambition	83
	9.2 The Object Described by Descriptive Theory of Law	84
	9.3 Arguments for Description	87
	9.4 Value Judgements	89
	9.5 Conclusion	90
	References	90
	Interpretation	91
	10.1 Introduction	91
	10.2 Stanley Fish	92
	References	95
	The Quest for the Description of the Law	96
	11.1 Consensus about Law	96
	11.2 The Goal-Theory of Law	97
	11.3 Is and Ought	98
	11.4 Why Question the Quest?	99
	References	100
	Appendix	101
	The Originality and Power of the Throwing Thrown	102
	References	106
	Compilation of Law Cases	107
	Bibliography	108
	Index	111