Springer Verlag (2019)

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ISBN(s) 978-3-030-15588-9   9783030155889   3030155889   978-3-030-15590-2
DOI 10.1007/978-3-030-15590-2
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Chapters BETA
Precedent

The chapter is dedicated to a realistic and analytical exploration of three basic issues in the theory of judicial precedent. These are: the notion of ratio decidendi; the interpretation of precedents; the practical relevance of precedents. Dealing with the first issue, three notions of ratio decide... see more

Judicial Fictions

The chapter purports to provide an example of realistic conceptual analysis and reconstruction concerning one of the most powerful and baffling tools of judicial reasoning: fiction. It moves from an analysis of a few theories of judicial fiction , and uses it as the starting point for rational recon... see more

Legal Gaps

The chapter contains an exercise in comparative analytical jurisprudence. A sample of theories of gaps from both sides of the Atlantic is analysed and evaluated from the vantage point of an interpretation-dependent and interpretation-transparent conceptual apparatus, in tune with the realistic theor... see more

Towards Pragmatic Realism

The chapter adds a further, and, to the present purpose, final, link, in favour of a construction conception of legal meaning and interpretive realism. It presents a five-steps argument. The first step lays down a conceptual framework. The second step provides a revisited account of three theories o... see more

Frames v. Containers

The chapter proceeds in the exploration of the dispute between interpretive cognitivism and non-cognitivism from a further vantage point. It considers and compares two competing theories concerning the notions of legal interpretation and of general norms of written-law. These are the frame of interp... see more

Taking Context Seriously

The present chapter purports to add a second line of argument in favour of a construction conception of legal meaning. This will be done by casting light on the shortcomings of moderate interpretive cognitivism , on the one side, while making the case stronger for a variety of realism, “pragmatic re... see more

Interpretive Games

Which theory of legal meaning is to be deemed adequate from a theoretical standpoint? Several candidates run for the prize. The chapter purports to provide a first line of argument in favour of a construction conception, by arguing against a couple of theories of legal interpretation—the “word-meani... see more

Interpretation, Truth, and the Logical Forms of Interpretive Discourse

What is legal interpretation? Which relations, if any, do exist between legal interpretation and truth? Which are the logical forms of the sentences we find in interpretive discourse? By providing an answer to these questions, the chapter purports to set the stage for the whole book. In carrying out... see more

Introduction: The Path of Analytical Realism

The chapter purports to provide in turn: an account of the basic claims characterizing “realism” and “scepticism” in the philosophy of law; an overview of the contents of the book; an account of a few alternative ways of conceiving conceptual analysis, where a modest and reconstructive variety is pu... see more

Legislation

The chapter purports to cast some light on the basic ideas of the realistic theory of legislation. It will be, accordingly, a place for rehearsing many of the theoretical theses advanced, and argued for, in the preceding chapters.

Defeasibility and Legal Indeterminacy

The chapter concerns what was perhaps one of the hottest subjects in recent jurisprudential inquiry, defeasibility, exploring its connection with another hot spot, legal indeterminacy. Considering linguistic therapy the lot of useful philosophical enquiry, it proceeds to the analysis of the “structu... see more

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