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Deference
Gary Lawson
Guy Seidman
其他書名
The Legal Concept and the Legal Practice
出版
Oxford University Press
, 2020
主題
Law / General
Law / Civil Procedure
Law / Constitutional
Law / Jurisprudence
Law / Judicial Power
ISBN
0190273402
9780190273408
URL
http://books.google.com.hk/books?id=gEK1DwAAQBAJ&hl=&source=gbs_api
EBook
SAMPLE
註釋
Deference is perhaps the most important concept and practice in law. It lies at the core of every system of precedent, appellate review, federalism, and separation of powers, all of which center on how one actor should deal with previous decisions. Oddly enough, deference is also one of the most underanalyzed and undertheorized legal concepts and practices, perhaps because its applications are so varied. This book%s goal is to provide a definition of and vocabulary for deference that can be used to describe, explain, and/or criticize deference in all of its manifestations in the law, including some manifestations that are not always identified by legal actors as instances of deference, such as practices of precedent in which institutional actors consider their own prior decisions. This book undertakes a descriptive and conceptual, not normative or critical, analysis of deference. It leaves to others the question whether deference, in any particular context, is %legitimate% or %bad,% and it does not seek to prescribe whether and how any legal system should apply deference in any specific circumstance or to critique any particular deference doctrines. Rather, it hopes to bring the very concept of deference to the forefront of legal discussion; to identify, catalogue, and analyze at least the chief among its many legal applications; to set forth the many and varied rationales that can be and have been offered in support of (some species of) deference in different legal contexts; and thereby to provide a vocabulary and conceptual framework that can be employed in future projects, whether those projects are descriptive or prescriptive. While this book draws its material almost entirely from American law and practice, we hope in future work, perhaps with the help of other scholars, to expand the study to include the law and practice in other countries and particularly in non-common-law legal systems.