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By Dimitrios Kyritsis
This significant ebook advances a clean philosophical account of the connection among the legislature and the courts, opposing the typical notion of legislation within which the legislatures basically create the legislations and the courts essentially follow it. This notion has eclectic affinities with criminal positivism, and, even though it could have been a beneficial highbrow instrument some time past, it now more and more generates extra difficulties than it solves. as a result, the booklet argues, criminal philosophers are forsaking this perception. while, they're requested to dismantle the philosophical and doctrinal infrastructure that has been according to it and which has been hitherto principally unquestioned. as a substitute, the publication deals another framework for realizing the function of courts and the legislature; a framework that's tremendously anti-positivist and which builds on Ronald Dworkin's interpretive concept of legislations. notwithstanding, opposite to Dworkin, the ebook insists that felony accountability is delicate to the placement one occupies within the venture of governing. felony interpretation isn't the solitary activity of 1 super-judge, yet a collaborative job established by way of rules of institutional morality, corresponding to the separation of powers. furthermore, during this collaborative activity, diverse members have an ethical responsibility to recognize every one other's contributions. (Series: legislation and sensible cause)
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To be vested with law’s authority is to satisfy its conditions. Directives that meet the two conditions of the sources thesis are legally valid. Validity is a special normative status that is not to be confused with moral bindingness. Of course, directives stemming from a legitimate authority are valid. For Raz, someone is a legitimate authority if she satisfies the normal justification thesis. In such a case, her directives will be both valid and morally binding. But Raz claims that we do not only talk of valid directives in cases of legitimate â•‡Raz, Ethics (n 7) 218.
Meta-theoretical Reservations Although the dependence of courts on the legislature is a central issue of the theory of law, we ought not to overstate the ambition of the claim made in this book. Being focused on one specific issue, the strategy adopted here leaves a number of routes open. So, for instance, it is not the case that, if one of the theories I compare proves to be problematic, the other must be true. Conversely, even if, as I am going to argue, it turns out that Dworkin’s theory does a better job of explaining the relationship between courts and the legislature, this does not entail that it is all things considered preferable over Raz’s, as it may be deficient on other counts.
39 Whatever the merits of non-essentialist jurisprudence, its course is parallel to the one taken in this book. Particular jurisprudence seeks to elucidate the essential by examining how it is instantiated in a specific context. Besides, it may be that the philosophical programme I have outlined yields critical gains, in the sense that it exposes the difficulties that influential theories of law have explaining the relationship between courts and legislatures in C-L legal systems. 40 Conversely, to the extent that the positive proposal put forward here helps us understand the nature of the C-L relationship, it is theoretically interesting even if it is shown not to apply to all possible legal systems.