Evolution and the Common LawCambridge University Press, 2005. 4. 4. - 294페이지 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. |
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6 페이지
... treated as a tradition of traditionality , the common law must be distinguished from both history and custom ... treats its own traditions seriously . By demanding a normative commitment to select and transmit aspects of past practice ...
... treated as a tradition of traditionality , the common law must be distinguished from both history and custom ... treats its own traditions seriously . By demanding a normative commitment to select and transmit aspects of past practice ...
8 페이지
... treat as 11 J. Beatson , Has the Common Law a Future ?, 56 Camb . L. J. 291 at 295 ( 1997 ) . See also Lord Goff , The Search For Principle , 50 Proc . Brit . Acad . 169 ( 1983 ) . 12 Poe v . Ullman , 367 US 497 at 542 per Harlan J ...
... treat as 11 J. Beatson , Has the Common Law a Future ?, 56 Camb . L. J. 291 at 295 ( 1997 ) . See also Lord Goff , The Search For Principle , 50 Proc . Brit . Acad . 169 ( 1983 ) . 12 Poe v . Ullman , 367 US 497 at 542 per Harlan J ...
8 페이지
... treated as a tradition of traditionality , the common law must be distinguished from both history and custom ... treats its own traditions seriously . By demanding a normative commitment to select and transmit aspects of past practice ...
... treated as a tradition of traditionality , the common law must be distinguished from both history and custom ... treats its own traditions seriously . By demanding a normative commitment to select and transmit aspects of past practice ...
9 페이지
... treated as an authoritative resource of available arguments , analogies , and axioms . Judges are considered to judge best when they distill the principled spirit of 13 O. W. Holmes , Jr. , The Common Law 5 ( 1881 ) . For discussions ...
... treated as an authoritative resource of available arguments , analogies , and axioms . Judges are considered to judge best when they distill the principled spirit of 13 O. W. Holmes , Jr. , The Common Law 5 ( 1881 ) . For discussions ...
10 페이지
... treat and defend the common law as a polished , integrated , and teleological process that gives rise to a resourceful , flexible , and just product . Although there is much disagreement among traditional scholars about the precise ...
... treat and defend the common law as a polished , integrated , and teleological process that gives rise to a resourceful , flexible , and just product . Although there is much disagreement among traditional scholars about the precise ...
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accepted Accordingly adapt approach argument behavior biological Bulldog canon challenge Charles Darwin claim coherence commitment common law adjudication complex constitutional law context continuing Creationist critical critique Darwin Darwinian debate decision democratic doctrine Donoghue Dworkin dynamic efforts environmental ethical evolution evolutionary existing formal Gadamer Gadamer's Glucksberg Hans-Georg Gadamer Hedley Byrne hermeneutical historical human Huxley ideas ideological insight insist intellectual interpretation judges and jurists judgment judicial jurisprudence jurisprudential jurists justice Justice Souter Lamarckian law and adjudication law is politics legal theory legitimacy less Lord meaning Mootz moral Moreover natural selection normative offer organisms overruling particular past philosophical Posner possible practice pragmatic present principles problem progress punctuated equilibrium radical reason rhetorical Ronald Dworkin rules S. J. Gould Scalia scientific sense simply Soapy social Social Darwinians society Souter stare decisis substantive substantive due process supra Supreme Court theoretical tion transformation truth understanding values work-in-progress
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85 페이지 - Created half to rise, and half to fall: Great lord of all things, yet a prey to all; Sole judge of truth, in endless error hurl'd; The glory jest, and riddle of the world!
285 페이지 - As buds give rise by growth to fresh buds, and these, if vigorous, branch out and overtop on all sides many a feebler branch, so by generation I believe it has been with the great Tree of Life, which fills with its dead and broken branches the crust of the earth, and covers the surface with its ever-branching and beautiful ramifications.
8 페이지 - It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
285 페이지 - The green and budding twigs may represent existing species ; and those produced during former years may represent the long succession of extinct species. At each period of growth all the growing twigs have tried to branch out on all sides, and to overtop and kill the surrounding twigs and branches, in the same manner as species and groups of species...
34 페이지 - There is grandeur in this view of life, with its several powers, having been originally breathed by the Creator into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being evolved.
285 페이지 - ... in a fossil state. As we here and there see a thin straggling branch springing from a fork low down in a tree, and which by some chance has...
201 페이지 - Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a bill or a charter of rights, for the unremitting protection of individual rights and liberties.
90 페이지 - I want the working classes to understand that Science and her ways are great facts for them — that physical virtue is the base of all other, and that they are to be clean and temperate and all the rest — not because fellows *n black with white ties tell them so, but because these are plain and patent laws of nature, which they must obey under penalties...
21 페이지 - A bad earthquake at once destroys our oldest associations: the earth, the very emblem of solidity, has moved beneath our feet like a thin crust over a fluid; — one second of time^ has created in the mind a strange idea of insecurity, whi-.