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Form and Function in a Legal System: A General Study
     

Form and Function in a Legal System: A General Study

by Robert S. Summers
 

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ISBN-10: 0521123887

ISBN-13: 9780521123884

Pub. Date: 01/07/2010

Publisher: Cambridge University Press

This book addresses three major questions about law and legal systems:

What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena?

How does frontal and systematic focus on these forms advance understanding of such phenomena?

What credit should the functions of forms have when such

Overview

This book addresses three major questions about law and legal systems:

What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena?

How does frontal and systematic focus on these forms advance understanding of such phenomena?

What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political and related purposes, rule of law values, and fundamental political values, such as democracy, liberty, and justice?

This book seeks of offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject, but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects.

Product Details

ISBN-13:
9780521123884
Publisher:
Cambridge University Press
Publication date:
01/07/2010
Edition description:
New Edition
Pages:
424
Product dimensions:
5.90(w) x 9.00(h) x 1.00(d)

Table of Contents

Preface xiii

Acknowledgments xv

Part 1 Introduction, Basic Concepts and Definitions, and a General Approach

1 Introduction 3

Section 1 Preliminary Overview 3

Section 2 Importance of Legal Form 17

Section 3 The Neglect of Form 24

Section 4 Protests Against Misunderstanding 33

2 Basic Concepts and Definitions 37

Section 1 Introduction 37

Section 2 A Selection of Functional Legal Units and Their Overall Form 24

Section 3 The Overall Form of a Functional Legal Unit - A General Definition and Refinements 39

Section 4 Types of Purposes That Overall Form is to Serve - A More Extended Account 42

Section 5 Rationales for the General Definition of Overall Form Adopted Here 47

Section 6 Differentiation of the Overall Form From Material or Other Components of a Functional Legal Unit 57

Section 7 The "Form v. Substance" Contrast 61

3 A General Approach 64

Section 1 Introduction 64

Section 2 Advancing Understanding through Study of Form 64

Section 3 Attributing Credit to Form for Purposes Served 66

Section 4 A Form-Oriented Approach as Primary, with a Rule-Oriented One Secondary 72

Part 2 The Forms of Functional Legal Units

4 Forms of Institutions - Legislative 91

Section 1 Introduction 91

Section 2 Overall Legislative Form and Its Constituent Features 97

Section 3 The Compositional Feature 101

Section 4 The Jurisdictional Feature 108

Section 5 The Structural Feature 112

Section 6 The Procedural Feature 116

Section 7 The Preceptual Feature 126

Section 8 Form and the Unity of the Legislature 127

Section 9 Skepticism about Institutional and Other Form, and Responses Thereto 131

5 Forms of Precepts - Rules 136

Section 1 Introduction136

Section 2 Internal Formal Features of Rules 141

Section 3 The Feature of Prescriptiveness 143

Section 4 The Feature of Completeness 147

Section 5 The Feature of Definiteness 155

Section 6 The Feature of Generality 161

Section 7 The Feature of Structure 164

Section 8 The Encapsulatory Feature 170

Section 9 The Expressional Feature 176

Section 10 Responses to Objections 179

6 Form and Content within a Rule-Continued 182

Section 1 Introduction 182

Section 2 General Purposes of the Form and Content of Rules - A Summary 183

Section 3 Initial Choices of Policy or Other Content and of Formal Features in a Projected Rule 188

Section 4 Further Initial Choices of Formal Features 190

Section 5 Final Choices of Form and Final Choices of Policy and Other Content 199

Section 6 General Interactions and Other Inter-relations Between Choices of Form and Choices of Con10t 203

Section 7 Further Responses to Objections 207

7 Forms of Nonpreceptual Law - Contracts and Related Property Interests 211

Section 1 Introduction 211

Section 2 Choices of Form and of Complementary Material or Other Components of Content in a Contract 215

Section 3 Due Credit to Form 221

Section 4 Formal Prima-Facie Validity and Further Credit Due to Form 228

Section 5 Contractual Form and Related Property Interests - Still Further Credit to Form 232

Section 6 Implementation of Contractual and Related Property Law -Credit to Form Continued 236

Section 7 Responses to Form-Skeptics and Law-Is-Policy Reductionists 238

8 Forms of Legal Methodologies-Statutory Interpretation 241

Section 1 Introduction 241

Section 2 Sources of Needs for a Well-Designed Methodology to Interpret Statutes 245

Section 3 Study of the Overall Form of a Particular Interpretive Methodology As an Avenue for Advancing Understanding 250

Section 4 The General Credit That May Be Due the Overall Form of an Interpretive Methodology for Statutes 266

Section 5 Other Related Factors of Form 273

Section 6 Formalistic Statutory Interpretation 275

Section 7 Methodological Forms and Other Forms 282

9 Forms of Sanctions and Remedies 283

Section 1 Introduction 283

Section 2 The Forms of Enforcive Functional Units - General 287

Section 3 The Sanction of State Imprisonment for Criminal Offenses 289

Section 4 Remedies for the Private Wrong of Breach of Contract 295

Part 3 The Overall Form of a Legal System and its Operation

10 The Overall Form of a Legal System as a Whole 305

Section 1 Introduction 305

Section 2 Systematization of Institutions and Entities - Centralized and Hierarchical Ordering within Each Main Type of Jurisdictional Sphere: Legislative, Judicial, Administrative, and Private-Ordering 311

Section 3 Systematization as between Jurisdictional Spheres of Institutions and Private Entities - Prioritization 315

Section 4 Systematization of Valid Laws within Discrete Fields 319

Section 5 Systematization through Uniformity of Interpretive and Other Methodologies, and in Regard to Sanctions and Remedies 323

Section 6 Further Systemization of Functional Legal Units through Basic Operational Techniques 326

Section 7 Operation of Basic Techniques in Conformity with Principles of the Rule of Law 332

Section 8 The Roles of Further Systematizing Factors 344

Section 9 Formalness as one Major Characteristic of a Legal System as a Whole 345

11 Cumulative and Synergistic Effects of Legal Forms - A Schematic Practical Application 351

Section 1 Introduction 351

Section 2 Choices of Forms of Basic Operational Techniques 363

Section 3 Choies of Forms in Legislatures, Administrative Bodies, or Other Entities 367

Section 4 Choices of Preceptual and Related Forms at the Law-Making Stage 369

Section 5 Choices of Form at the Stage of Public Promulgation 377

Section 6 Form and the Stage of Addressee Self-Application 379

Section 7 An Exceptional yet Important Stage - Administrative Intervention 381

Section 8 Ultra-Exceptional Stage-Trial and Appellate Court Action 383

Section 9 Choices of Form - Summary of Major Cumulative and Synergistic Effects 386

Section 10 The Roles of Form and Information in a Linear Progression 387

Section 11 The Limits of Form and Also its General Potency 390

Name Index 393

Subject Index 395

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