The nature of the common lawPDF电子书下载

1.Introduction 1

2.The Social Functions of Courts 4

3.Foundational Principles 8

Objectivity 8

Support 9

Replicability 10

Responsiveness 12

4.Social Propositions 14

Moral Norms 14

Policies 26

Experiential Propositions 37

5.Standards for the Common Law 43

The Standards of Social Congruence and Systemic Consistency and the Model of Double Coherence 44

The Standard of Doctrinal Stability and the Real-World Model of the Common Law 47

6.Modes of Legal Reasoning 50

Reasoning from Precedent 50

Reasoning from Principle 76

Reasoning by Analogy 83

Reasoning from Doctrines Established in the Professional Literature 96

Reasoning from Hypotheticals 99

7.Overruling and Other Modes of Overturning 104

Overruling 104

Prospective Overruling 127

Transformation 132

Overriding 135

The Drawing of Inconsistent Distinctions 136

Noninterpretive Elements of the Common Law 140

8.The Theory of the Common Law 146

Text-based Theories of Law 146

Justification and the Content of the Law 151

The Generative Conception of the Common Law 154

Notes 163

Index 198