Legal Institutions and the Sources of Law
(Springer, 2005)
LIB 312
The book is Volume 3 of A Treatise of Legal Philosophy and General Jurisprudence, a twelve-volume survey of the theory and history of legal thought in the Western tradition. Both the common law and the civil law traditions are covered, from ancient Greece to the twentieth century. The project was based in the Faculty of Law, University of Bologna — the oldest law faculty in the world. The range of contributors to the project is international.
The book theorizes strictly institutionalized sources of law primarily in the common law tradition. One chapter on strictly institutionalized sources of law in the civil law tradition is contributed by Antonino Rotolo of the University of Bologna. The idea of a strictly institutionalized source of a legal norm, briefly, is that the appropriate activities of a legal institution both provide the existence conditions for the norm and a full contextual justification for the norm. Other volumes in the Treatise theorize quasi-institutional sources of law — sources that are not fully institutional such as interpretation — and social-scientific accounts of the origins of laws.
The book begins with two chapters that analyze the functioning of the paradigm strictly institutionalized sources of law in the common law: legislation and precedent. The next three chapters discuss sources of common law whose characterization as strictly institutionalized sources is more theoretically controversial: custom, delegation and constitutions. These chapters seek to explain how the controversies arise in terms of these sources being both like and unlike legislation and precedent. The two final chapters cover the sources of international law and the idea of the authority of law from an institutionalized perspective. The sources of international law are difficult to frame as strictly institutionalized in the sense foregrounded in the book, as the boundary between law and politics is fluid in the case of international law. Reference to legislation and precedent as “authorities” is pervasive in the practice of the common law, and the chapter defends such a strictly institutionalized view of authority.
(Description Source: Roger A. Shiner)
Author
Roger Shiner is an adjunct professor of Philosophy at UBC Okanagan. He began his university teaching career at the University of Alberta specializing in Ancient Philosophy and Ethics. He specialized in philosophy of law from mid-1970s onwards. He also began research and teaching in aesthetics around the same time, and began teaching business ethics in mid-1980s. He took an early retirement from the University of Alberta in 1966, before teaching part-time for Okanagan University College in 2002 and subsequently for both Okanagan College and UBCO. He retired from teaching in 2018.
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Hardcover ISBN: 9781402064708
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