MartinP. Golding - Legal Reasoning, Legal Theory and Rights

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COLLECTED ESSAYS IN LAW

Legal Reasoning, Legal Theory and Rights

Collected Essays in Law Series

General Editor: Tom D.Campbell

Legal Rules and Legal Reasoning

Larry Alexander

ISBN: 978 0 7546 2004 4

The Great Juristic Bazaar:

Jurists Texts and Lawyers Stories

William Twining

ISBN: 978 0 7546 2211 6

Dispute Processing and Conflict Resolution

Carrie Menkel-Meadow

ISBN: 978 0 7546 2305 2

Objectivity in Ethics and Law

Michael Moore

ISBN: 978 0 7546 2329 8

Crime, Compliance and Control

Doreen McBarnet

ISBN: 978 0 7546 2349 6

Democracy Through Law

Johan Steyn

ISBN: 978 0 7546 2404 2

Legal Reasoning, Legal Theory and Rights

Martin P. Golding

ISBN: 978 0 7546 2669 5

Martin P. Golding

Legal Reasoning, Legal Theory and Rights

First published 2007 by Ashgate Publishing

Published 2016 by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright 2007 Martin P. Golding

Martin P. Golding has asserted his moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data

Golding, Martin P. (Martin Philip), 1930

Legal reasoning, legal theory and rights

1. Law - United States - Methodology 2. Law - United States - Interpretation and construction 3. Law - United States - Philosophy 4. Judicial process - United States 5. Law - Methodology 6. Law - Philosophy

1. Title

340.1

Library of Congress Cataloging-in-Publication Data

Golding, Martin P. (Martin Philip), 1930

Legal reasoning, legal theory, and rights / by Martin P. Golding

p. cm. (Collected essays in law)

Includes index.

ISBN-13: 978-0-7546-2669-5 (alk paper)

1. LawUnited StatesMethodology. 2. LawUnited StatesInterpretation and construction. 3. LawUnited StatesPhilosophy. 4. Judicial processUnited States 5. LawMethodology. 6. LawPhilosophy. I. Title.

KF380.G65 2007

340.1dc22

2007016796

ISBN 9780754626695 (hbk)

Contents

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My Philosophy of Law
The Law in Philosophical Perspectives: My Philosophy of Law, L.J. Wintgens (ed.), Kluwer Academic Publishers, 1999, pp. 4767.

Principled Decisionmaking and the Supreme Court
Columbia Law Review, 63, 1963, pp. 3558.

A Note on Discovery and Justification in Science and Law
Justification, J. R. Pennock and J. Chapman (eds), New York University Press, 1986, pp. 12440.

The Logical Force of Arguments by Analogy in Common Law Reasoning
Duke Law Magazine, 3,1985, pp. 346.

Aesthetics and Legal Reasoning: A Strand in American Legal
Duke Law Magazine, 2, 1984, pp. 58.

Preliminaries to the Study of Procedural Justice
Law, Reason, and Justice, G. Hughes (ed.), New York University Press, 1969, pp. 71101.

Substantive Interpretation and Common Law Elaboration
Archiv frRechtsund Sozialphilosophie, Beiheft, 53,1994, pp. 2335.

The Legal Analog of the Principle of Bivalence
RatioJuris,16, 2003, pp. 45068.

Jurisprudence and Legal Philosophy in TwentiethCentury America Major Themes and Developments
Journal of Legal Education,36, 1986, pp. 44180.

Kelsen and the Concept of Legal System
Archiv frRechtsundSozialphilosophie,47, 1961, pp. 35586.

Holmes's Jurisprudence: Aspects of its Development and Continuity
Social Theory and Practice,5, 1979, pp. 183207.

Retroactive Legislation and Restoration of the Rule of Law
Jahrbuch fr Recht und Ethik,1, 1993, pp. 16992.

The Cultural Defense
Ratio Juris,15, 2002, pp. 14658.

Responsibility
Blackwell Guide to the Philosophy of Law and Legal Theory, Martin P. Golding and William A. Edmundson (eds), Blackwell Publishing, 2005, pp. 22135.

Faux Pas
Jahrbuch fr Recht und Ethik,13, 2005,10322.

Towards a Theory of Human Rights
The Monist,52, 1968, pp. 51249.

Obligations to Future Generations
The Monist,56, 1972, pp. 8599.

The Significance of Rights Language
Philosophical Topics,18, 1990, pp. 5364.

The Primacy of Welfare Rights
SocialPhilosophy and Policy, 1,1984, pp. 11936.

Rights, Performatives, and Promises in Karl Olivecronas Legal Theory
Ratio funis18, 2005, pp. 1629.

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Grateful acknowledgement is made to the following persons, editors, publishers and institutions for their kind permission to reprint the essays included in this volume: Kluwer Academic Publishers; Columbia Law Review; New York University Press; Duke Law Magazine, Duke University School of Law; Steiner Verlag. Copyright 1994 Franz Steiner Verlag Stuttgart; Ratio Juris. Copyright 2003 Blackwell Publishing Ltd; Copyright 2002 Blackwell Publishing Ltd; Copyright 2005 Blackwell Publishing Ltd; Journal of Legal Education. Copyright 1986 by the Association of American Law Schools; Social Theory and Practice. Copyright 1979 by Social Theory and Practice; Duncker & Humbolt GmbH; The Monist; Philosophical Topics; Cambridge University Press. Copyright Social Philosophy and Policy Foundation, published by Cambridge University Press.

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Collected Essays in Law makes available some of the most important work of scholars who have made a major contribution to the study of law. Each volume brings together a selection of writings by a leading authority on a particular subject. The series gives authors an opportunity to present and comment on what they regard as their most important work in a specific area. Within their chosen subject area, the collections aim to give a comprehensive coverage of the authors research. Care is taken to include essays and articles which are less readily accessible and to give the reader a picture of the development of the authors work and an indication of research in progress.

Martin P. Golding

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This book is comprised of a selection of essays and chapters of books published over my academic career. A number of them have been reprinted, in whole or in part, in various collections, anthologies and textbooks. In a few instances the pieces were done for special occasions, such as conferences and international congresses, and were originally published in somewhat obscure places. In other instances they were published as a result of an editor requesting an article from me, and I submitted something I was already working on independently.

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