Form and Function in a Legal System法律体系的形式与作用
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作者： Robert S. Summers 著
出 版 社：
出版时间： 2005-11-1字数：版次： 1页数： 404印刷时间： 2005/11/01开本： 16开印次： 1纸张： 胶版纸I S B N ： 9780521857659包装： 精装内容简介
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.
作者简介
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, commercial law, jurisprudence and legal theory. His treatise on the Uniform Commercial Code, coauthored with James White, is the most widely cited on the subject. Professor Summers has served as official advisor both to the Drafting Commission for Russian Civil Code and to the Drafting Commission for Egyptian Civil Code. He lectures annually on jurisprudence and legal theory in Britain, Scandinavia, and Europe.
目录
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