Suchergebnisse

In this volume, the 3rd issue of the Proceedings of the 24th IVR World Congress, the reader will find a selection of papers on the general theme of 'The Philosophy of Precedent'. The foundations, legal nature, structure, strength and uses of the case law were vividly debated at two special workshops dedicated to the study of legal precedent by a large number of scholars from around the world. The attention that the theme received at the congress indicates a trend of growing interest on the topic of precedent among legal philosophers, legal theorists and practitioners from all of the legal families and traditions, including those of the so-called Civil Law Systems. Taking into consideration this movement towards the universality of precedent-based reasoning in legal discourses, the essays comprised in this volume provide an account of legal precedent which explains the connections between theoretical issues on the nature of precedent and practical queries over its foundations, structure, strength and uses in contemporary legal systems.

Abstract
In this review essay, I analyse two philosophical positions presented by Cormac Mac Amhlaigh in New Constitutional Horizons – namely, a pluralistic analytic legal theory, which offers a criterion of 'individuation' of legal systems in the context of transnational laws (to explain the relationship between domestic and international law), and a pluralistic account of constitutionalism, which understands the concept of 'constitution' and related political concepts in the context of transnational legal relationships (treating them as 'interpretive concepts' in the sense of Ronald Dworkin). My main target is not Mac Amhlaigh's account of constitutionalism, with which I agree, but, rather, his analytic legal theory. After a brief summary of the former, to make explicit the interpretive methodology of the book, I respond to the latter in two ways: first, I present Dworkin's argument to defend Hans Kelsen's international legal monism against H.L.A. Hart's objections, and, second, I argue that the analytic ambition to provide a test to distinguish sharply between municipal law and international law, treating them as separate while simultaneously valid systems, is unachievable. I end with a claim that Dworkin's thesis of the unity of value entails a distinctive version of legal monism, which is more plausible than Kelsen's traditional legal monism because it is not committed to a 'linear' or 'hierarchical' theory of law.