Jurisprudence in the mirror : the common law world meets the civil law world / edited by Luka Burazin, Kenneth Einar Himma, Giorgio Pino.

Format:

Book

Contributor:

Burazin, Luka, 1979- editor.

Himma, Kenneth Einar, editor.

Pino, Giorgio, editor.

Series:

Oxford scholarship online.

Oxford scholarship online

Language:

English

Subjects (All):

Comparative law.

Jurisprudence.

Civil law systems.

Common law.

Physical Description:

1 online resource (532 pages)

Edition:

1st ed.

Place of Publication:

Oxford : Oxford University Press, [2024]

Summary:

This title presents the major achievements of contemporary civil law jurisprudence to the common law world, bridging the gap in analytic jurisprudence as it is currently practiced in the two traditions.

Contents:

Cover

Half Title

Title Page

Copyright Page

Contents

List of Contributors

Contemporary Analytical Jurisprudence in the Civil Law World and in the Common Law World: Lost in Translation?

1. Introduction

2. Theoretical Foundations

3. Theory of Legal Norms

4. Theory of the Legal System

5. Legal Interpretation, Reasoning, and Knowledge

6. Conclusion

PART I THEORETICAL FOUNDATIONS

1 Analytical Legal Philosophy

1. Philosophy of Law in General

2. Analytical Legal Philosophy in General

3. Analytical Legal Philosophy and Legal Positivism

4. Analytical Philosophy of Law and Legal Positivism: Scarpelli's Heterodox Version

5. Analytical Legal Philosophy, Logical Positivism, and Legal Realism

6. The Italian Analytical School of Legal Philosophy

7. Contemporary Analytical Philosophy of Law and the Crisis of Legal Positivism

2 Anglophone Analytical Legal Philosophy Reply to Schiavello

1. Introduction: General and Specific Jurisprudence

2. Anglophone Analytical Legal Philosophy

3. Legal Positivism

4. Methodological Positivism

5. Conclusion

3 Legal Positivism

1. 'Legal Positivism'

2. Legal Positivism and Ethical Non-Cognitivism

3. Methodological Positivism in Action: The Theory of Normative Systems in a Nutshell

4. Methodological Positivism in Action: Some Theses about the Systematic Properties of Norms

5. The Debate over Legal Interpretation

4 The Narrowing of Legal Positivism Reply to Ratti and Redondo Natella

1. The Disunity of Jurisprudence and (Consequently?) Law

2. The Lost History of Legal Positivism

3. On the Limits of Analysis and the Promise of Naturalism

PART II THEORY OF LEGAL NORMS

5 Legal Norms and Normative Relevance

2. The Systematisation of Law.

3. Systematisation, Relevance, and the Implicit Content of Law

4. Legal Gaps and Normative Relevance

5. Positive and Negative Irrelevance

6. Irrelevance and Defeasibility

7. Conclusions

6 The Systematisation of Legal Norms Reply to Navarro and Rodríguez

1. Systematisation

2. Some Practicalities

3. More Technical Aspects of the Argument

4. A Concluding Thought

7 Legal Validity and Other Properties of Legal Norms

2. Kelsen: A Sparse Conception of Legal Properties

3. An Elusive Concept

4. The Normative Conditions of Validity: Validity as Membership and Validity as Conventional Existence

5. The Normative Effects of Validity: Validity as Applicability and Validity as Bindingness

6. Conclusions

8 The Validity of Validity Reply to Moreso and Ángeles Ródenas

1. Legal Validity and Unifying Rules

2. The Core Argument

3. Existence and Operativeness

4. End

9 Rules and Principles

1. The Traditional Concept of a Legal Principle: Introductory Remarks

2. Robert Alexy's Theory of Rules and Principles

3. The Selected Problems of Robert Alexy's Theory of Legal Principles

4. The Postpositivist Theory of Legal Sentences by Manuel Atienza and Juan Ruiz Manero

5. Criticism of Atienza and Ruiz Manero's Characterisation of Principles

10 Rules and Principles Revisited Reply to Grabowski and Lifante Vidal

2. Legal Rules

3. Legal Standards

4. Principles

5. Principles as Moral Norms

6. Principles as Legal Norms

PART III THEORY OF THE LEGAL SYSTEM

11 Legal System

1. Components

2. Membership

3. Structure

4. Foundation and Recognition

5. Identity

6. The Concept of a Legal System

7. Something More on Recognition

12 Recognition and the Concept of a Legal System Reply to Guastini

1. Introduction.

2. The Idea of a Legal System (and Why It Matters)

3. Guastini's Reconstruction and Challenge

4. Founding is Different from Recognising, but Recognising is Different from Identifying

13 Sources of Law

2. The Concept of Sources of Law

3. Types of Sources of Law

4. Conclusion

14 Sources of Law in the Common Law Reply to Carpentier and Spaak

2. Jurisprudential Contributions

3. Sources

15 Antinomies and Gaps

2. Legal Antinomies

3. Legal Gaps

16 Gap-Filling as Law-Making in Common Law and Civil Law Traditions Reply to Chiassoni and Huerta

2. Preliminary Definitions

3. On Contradictions in the Common Law

4. The Common Law and the Question of Gaps

5. Divergent States of Mind in a Converging World

17 Constitution

1. Introduction: Power-conferring and Regulative Norms

Constitutional Models and Conceptions

2. Regulative Constitutional Norms

3. Constitutive Constitutional Norms

18 Constitutional Democracy Reply to Manero

1. Constitutions

2. Democracy

3. A Threat to Democracy?

4. Ways Round the Threat to Democracy?

5. Originalism

6. Living Constitutionalism

7. Institutional Solutions

8. Constitutional Conventions

PART IV LEGAL INTERPRETATION, REASONING, AND KNOWLEDGE

19 Legal Interpretation

1. Introduction. Legal Interpretation as an Essentially Contested Concept

2. Ontological Questions

3. Epistemological Questions

4. Conceptual Question. Legal Interpretation vs Law Creation

5. Summing Up, and Not Concluding

20 Interpretation and Determinacy Reply to Brunet and Poggi

2. Strong Formalism

3. Radical Scepticism

4. Scepticism About Interpretive Methods and Criteria

21 Legal Reasoning

2. The Legal Syllogism

3. Anti-Formalism

4. Analytical Theories

5. Interpretive Reasoning

6. Reasoning About Evidence

7. Conclusion

22 Legal Reasoning from Precedent and the Common Law Reply to Canale

2. Legal Reasoning to the Content of the Law

3. Common Law Features and Legal Reasoning to What is to be Done in a Particular Case

4. Legal Reasoning from Precedent

23 Legal Science

1. Law as an Object of Knowledge

2. Areas of Legal Knowledge

3. Knowledge About the Law: Types of Normative Propositions

4. Knowledge About the Law: The Truth Value of Normative Propositions

5. The Scientific Label

6. The New Idea of Science and the Scientific Path of Legal Science

24 On the Nature of Legal Science Reply to Duarte

1. The Definition of 'Science'

2. The Objects of Legal Knowledge

3. Law and Language

4. The Distinction Between Legal Theory and Legal Philosophy

5. The 'Scientific' Nature of the Study of Law

6. Science and the Nature of Truth Claims

25 Coda

2. Sources of Difference

3. Differences with Less Regard to Type of Legal System

Index.

Notes:

Includes index.

Description based on online resource and publisher information; title from PDF title page (viewed on July 22, 2024).

ISBN:

0-19-196471-9

0-19-269509-6

OCLC:

1449546905