Download PDF by Gerald J. Postema: A Treatise of Legal Philosophy and General Jurisprudence:

By Gerald J. Postema

ISBN-10: 9048189594

ISBN-13: 9789048189595

A Treatise of felony Philosophy and basic Jurisprudence is the first-ever multivolume remedy of the problems in criminal philosophy and common jurisprudence, from either a theoretical and a historic standpoint. The paintings is aimed toward jurists in addition to criminal and functional philosophers. Edited through the popular theorist Enrico Pattaro and his crew, this e-book is a classical reference paintings that might be of serious curiosity to felony and sensible philosophers in addition to to jurists and felony pupil in any respect degrees. The paintings is split The theoretical half (published in 2005), such as 5 volumes, covers the most issues of the modern debate; the historic half, along with six volumes (Volumes 6-8 released in 2007; Volumes nine and 10, released in 2009; quantity eleven released in 2011 and quantity 12 coming near near in 2012/2013), debts for the improvement of felony suggestion from old Greek occasions during the 20th century. the total set might be accomplished with an index.

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

Legal Philosophy within the 20th Century: the typical legislation international deals a clean, philosophically engaged, serious interpretation of the most currents of jurisprudential concept within the English-speaking global of the twentieth 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 legislation and Morals” (1958). Holmes’s radical problem to overdue nineteenth century criminal technology gave beginning to a wealthy number of competing techniques to figuring out legislation and criminal reasoning from realism to monetary 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 serious felony stories and Feminist activities. Hart, concurrently construction upon and remodeling the undations of Austinian analytic jurisprudence laid within the early twentieth century, brought rigorous philosophical strategy to English-speaking jurisprudence and provided a reinterpretation of criminal positivism which set the time table for analytic criminal philosophy to the tip of the century and past. A wide-ranging debate over the position of ethical rules in criminal reasoning, sparked through Dworkin’s primary problem to Hart’s thought, generated competing interpretations of and primary demanding situations to middle doctrines of Hart’s positivism, together with the character and position of conventions on the foundations of legislation and the technique of philosophical jurisprudence.

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

Sample text

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).

He came close to recognizing a fundamental conceptual difference between mandatory laws and laws that create and confer legal powers, but the 8 TREATISE, 11 - 20TH CENTURY: THE COMMON LAW WORLD concept of a legal power still eluded him. He tended to see powers in terms of liberties, or “declarations of the doctrines which the Courts have applied and will apply” (Bryce 1901, 500). Although he approximated the Hohfeldian understanding of legal powers (see chap. 3, sec. ). 5 Critics sympathetic with historical jurisprudence argued that the signal failure of the command model was its blindness to customary forms of law.

There can be no legal limits on sovereign legislative power, because, on the command model legal limits entail that the law-maker is subject to some other power, hence not supreme, or is subject to its own commands, which is no subjection at all. But, as we have seen, Salmond argued that it is a major defect of the command model that it has no CHAPTER 1 - ANALYTIC JURISPRUDENCE ESTABLISHED 13 room for legal norms that perform functions other than imposing duties. 9 It is perhaps already apparent that Salmond’s views represented a significant revision of Austinian orthodoxy and a bridge to developments in legal positivism in the second half of the century.

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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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