Judges and Adjudication in Constitutional Democracies: A View from Legal Realism

ISBN-13: 9783030581886 / Angielski / Miękka / 2021 / 208 str.

Opis

The book offers contributions to a philosophical and realistic approach to the place of adjudication in contemporary constitutional democracies. Bringing together scholars from different legal and philosophical backgrounds, the book purports to cast light on the role(s) of judges and the function of judicial interpretation inside of constitutional states, from the standpoint of legal realism as a revisited and sophisticated jurisprudential outlook. In so doing, the book also copes with a few major jurisprudential issues, like, e.g., determining the ideas that make up the core of legal realism, exploring the relation between legal realism and legal positivism, identifying the boundaries of judicial interpretation as they appear from a realist standpoint, as well as considering some skeptical outlooks on the very claims of contemporary legal realism.

Spis treści

Part I Judicial Interpretation in Constitutional Democracies.- The Roles of Judges in Democracies: A Realistic View.- Is Realism at Odds with Constitutional Democracy?.- Judicial Supremacy as a Qualified Epistocratic Constraint on Democratic Rule.- Legal Identity of Judge Transformed: Images of Judge in Early Modern and Contemporary Democracy.- Part II  Realist Jurisprudence (Re)Defined.- An Exercise in Legal Realism.- A Causal View of Judicial Interpretation.- Rule of Recognition and Methods of Interpretation.- Legal Interpretation and Epistemic Authority.- On the Distinction between Judicial Activism and Self-Restraint.- Part III Challenges to a Realist Jurisprudence.- Legal Realism as a Philosophy of Legal Doctrine.- On the Fundamental Distinction between Motives and Interpretation and the Consequences of Their Confusion – The Case for Strict Legal Scholarship.- A Critical Evaluation of (Moderate) Realism in Law.

O autorze

Pierluigi Chiassoni is Professor of Jurisprudence at the University of Genova School of Law and a permanent fellow of Tarello Institute for Legal Philosophy. His jurisprudential interests span from economic analysis of law to legal interpretation and human rights. His main publications include Positivismo giuridico. Una investigazione analitica (Mucchi Editore, 2013), Tecnica dell’interpretazione giuridica (il Mulino, 2007), El discreto placer del positivismo jurídico (Externado de Colombia, 2016), La tradición analítica en la filosofia del derecho. De Bentham a Kelsen (Palestra, 2017), Ensayos de metajurisprudencia analítica (Olejnik, 2017), Interpretation without Truth (Springer, 2019).

 Bojan Spaić is Assistant Professor of Jurisprudence at the University of Belgrade Faculty of Law and Alexander von Humboldt Research Fellow on the Institute for Public Law, Constitutional Law and Legal Philosophy of the University of Heidelberg. Spaić has edited books in English and in Serbian including: Jurisprudence and Political Philosophy in the 21st Century: Reassessing Legacies (with Miodrag Jovanović, published by Peter Lang, 2012), Fundamental Rights: Justification and Interpretation (with Kenneth Einar Himma, Eleven international Publishing, 2016), Unpacking Normativity: Conceptual, Normative and Descriptive Issues (with Kenneth Einar Himma and Miodrag Jovanović, Hart Publishing, 2018). He published three books in Serbian and papers in Serbian and English regarding legal interpretation, ontological and methodological hermeneutics, pragmatism.