Form and Function in a Legal System法律体系的形式与作用 fb2 免费 lrf 下载 kindle azw3 pdf 阿里云

This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, as well as allied subjects.

Focusing on legal structures as they developed in Western societies, "Form and Function in a Legal System" looks at four paradigms of the forms of a varied selection of functional legal units: legislatures and courts, statutory rules, contracts and property, legal methodologies for interpreting law, and enforcive devices such as sanctions and remedies. In contrast to the rules-based analysis made prominent by legal thinkers such as H. L. A. Hart and Hans Kelsen, the form-oriented analysis provides a new and intellectually stimulating understanding on how law can be conceptually approached.

Preface

Acknowledgments

PART ONE: INTRODUCTION, BASIC CONCEPTS AND DEFINITIONS, AND A GENERAL APPROACH

1 Introduction

　　Section One: Preliminary Overview

　　Section Two: Importance of Legal Form

　　Section Three: The Neglect of Form

　　Section Four: Protests Against Misunderstanding

2 Basic Concepts and Definitions

　　Section One: Introduction

　　Section Two: A Selection of Functional Legal Units and Their Overall Forms

　　Section Three: The Overall Form of a Functional Legal Unit -A General Definition and Refinements

　　Section Four: Types of Purposes That Overall Form Is to Serve -A More Extended Account

　　Section Five: Rationales for the General Definition of Overall Form Adopted Here

　　Section Six: Differentiation of the Overall Form From Material or Other Components of a Functional Legal Unit

　　Section Seven: The "Form v. Substance" Contrast

3 A General Approach

　　Section One: Introduction

　　Section Two: Advancing Understanding through Study of Form

　　Section Three: Attributing Credit to Form for Purposes Served

　　Section Four: A Form-Oriented Approach as Primary, with a Rule-Oriented One Secondary

PART TWO: THE FORMS OF FUNCTIONAL LEGAL UNITS

4 Forms of Institutions - Legislative

　　Section One: Introduction

　　Section Two: Overall Legislative Form and Its Constituent Features

　　Section Three: The Compositional Feature

　　Section Four: The Jurisdictional Feature

　　Section Five: The Structural Feature

　 Section Six: The Procedural Feature

　　Section Seven: The Preceptual Feature

　　Section Eight: Form and the Unity of the Legislature

　　Section Nine: Skepticism about Institutional and Other Form, and Responses Thereto

5 Forms of Precepts- Rules

　　Section One: Introduction

　　Section Two: Internal Formal Features of Rules

　　Section Three: The Feature of Prescriptiveness

　　Section Four: The Feature of Completeness

　　Section Five: The Feature of Definiteness

　　Section Six: The Feature of Generality

　　Section Seven: The Feature of Structure

　　Section Eight: The Encapsulatory Feature

　　Section Nine: The Expressional Feature

　　Section Ten: Responses to Objections

6 Form and Content within a Rule - Continued

　　Section One: Introduction

　　Section Two: General Purposes of the Form and Content of Rules - A Summary

　 Section Three: Initial Choices of Policy or Other Content and of Formal Features in a Projected Rule

　 Section Four: Further Initial Choices of Formal Features

　　Section Five: Final Choices of Form and Final Choices of Policy and Other Content

　　Section Six: General Interactions and Other Inter-relations Between Choices of Form and Choices of Content

　　Section Seven: Further Responses to Objections

7 Forms of Nonpreceptual Law- Contracts and Related

　　Property Interests

　　Section One: Introduction

　　Section Two: Choices of Form and of Complementary Material or Other Components of Content in a Contract

　　Section Three: Due Credit to Form

　　Section Four: Formal Prima-Facie Validity and Further Credit Due to Form

……

PART THREE：THE OVERALL FORM OF A LEGAL SYSTEM AND ITS OPERATION

Name Index

Subject Index

Robert S. Summers is the William G. McRoberts Research Professor in the Administration of Law at Cornell Law School. He has won international acclaim for his work in contracts and commercial law and authored and coauthored multiple works on contracts, com

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This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This is the first book that seeks to 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.