Common Law Theory
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A Common Law Theory Of Judicial Review
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Author : W. J. Waluchow
language : en
Publisher: Cambridge University Press
Release Date : 2006-12-25
A Common Law Theory Of Judicial Review written by W. J. Waluchow and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2006-12-25 with Philosophy categories.
In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.
Legal Theory And Legal History
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Author : Alfred William Brian Simpson
language : en
Publisher: A&C Black
Release Date : 1987-01-01
Legal Theory And Legal History written by Alfred William Brian Simpson and has been published by A&C Black this book supported file pdf, txt, epub, kindle and other format this book has been release on 1987-01-01 with Law categories.
Common Law Theory
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Author : Douglas E. Edlin
language : en
Publisher:
Release Date : 2007
Common Law Theory written by Douglas E. Edlin and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007 with Common law categories.
In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.
Common Law Theory
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Author : Douglas E. Edlin
language : en
Publisher: Cambridge University Press
Release Date : 2007-10-22
Common Law Theory written by Douglas E. Edlin and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007-10-22 with Law categories.
In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.
The Nature Of The Common Law
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Author : Melvin Aron Eisenberg
language : en
Publisher: Harvard University Press
Release Date : 1991-10-01
The Nature Of The Common Law written by Melvin Aron Eisenberg and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 1991-10-01 with Law categories.
Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use—or should use—in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process. The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases. This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.
Institutional Competition Between Common Law And Civil Law
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Author : Michèle Schmiegelow
language : en
Publisher: Springer
Release Date : 2014-05-27
Institutional Competition Between Common Law And Civil Law written by Michèle Schmiegelow and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-05-27 with Law categories.
This book addresses two countervailing challenges to theory and policy in law and economics. The first is the rise of legal origins theory, which denies the comparative law view of convergence between common law and civil law by the assertion of an economic superiority of common law. The second is the series of economic crises in the very financial markets on which that assertion was based. Both trends unsettled certainties about the rule of law and institutional economics. Meeting legal origins theory in its main areas of political science, sociology and economics, the book extends the interdisciplinary reach to neglected aspects of comparative law, legal history, dynamic econometric analysis and "quasi-natural experiments" with counterfactual evidence of different institutional regimes in divided countries. These combined methodological tools make tests of the economic impact of different legal origins much more reliable. This is shown for developed and newly industrialized countries as well as developing, transforming and emerging countries with or without financial center advantage, affected or not by financial crises. The Asian financial crises and the American subprime crisis have been, or could have been resolved using the resources of common law or civil law. These cases and data on access to justice in Africa, Asia and Latin America reveal the problem of substantive law remaining "law on the books" without efficient procedural rules and judicial structures. The single most striking common law-civil law divide is that lawyer-dominated common law procedure is slower and costlier than judge-managed civil law procedure. Countries as diverse as the Netherlands, Japan, and China show functional interaction between culture and law in legal reforms. Such interaction can reduce the occurrence of legal disputes as well as facilitate their resolution. It can use economic crises as catalysts for legal reforms or rely on regional integration, and it should replace the discredited method of legal "transplants" by sustained dialogue between legal advisors and all actors involved in legal reforms.
Bentham And The Common Law Tradition
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Author : Gerald J. Postema
language : en
Publisher: Oxford University Press, USA
Release Date : 1986
Bentham And The Common Law Tradition written by Gerald J. Postema and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 1986 with Common law categories.
This book offers a philosophical interpretation of the historical debate between Bentham and classical Common Law Theory, a debate that is fundamental to philosophical thought and has shaped contemporary conceptions of nature, tasks, and limits of law and adjudication. The author explores the philosophical foundations of Common Law theory, focusing particularly on the writings of Sir Mathew Hale and David Hume.
The Common Law
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Author : Oliver Wendell Holmes
language : en
Publisher: DigiCat
Release Date : 2022-09-15
The Common Law written by Oliver Wendell Holmes and has been published by DigiCat this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-09-15 with Law categories.
DigiCat Publishing presents to you this special edition of "The Common Law" by Oliver Wendell Holmes. DigiCat Publishing considers every written word to be a legacy of humankind. Every DigiCat book has been carefully reproduced for republishing in a new modern format. The books are available in print, as well as ebooks. DigiCat hopes you will treat this work with the acknowledgment and passion it deserves as a classic of world literature.
Evolution And The Common Law
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Author : Allan C. Hutchinson
language : en
Publisher: Cambridge University Press
Release Date : 2005-04-04
Evolution And The Common Law written by Allan C. Hutchinson and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005-04-04 with Law categories.
This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up.
Judges And Unjust Laws
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Author : Douglas E. Edlin
language : en
Publisher: University of Michigan Press
Release Date : 2010-07-22
Judges And Unjust Laws written by Douglas E. Edlin and has been published by University of Michigan Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010-07-22 with Law categories.
Are judges legally obligated to enforce an unjust law?