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Instrumentalism and American legal theory

Instrumentalism and American legal theory

Law of America > Law of the United States > Federal law. Common and collective state law Individual states > Jurisprudence and philosophy of American law. General doctrines of American legal institutions > General works > Treatises

Edition Details

  • Creator or Attribution (Responsibility): Robert S. Summers
  • Language: English
  • Jurisdiction(s): New York (State)
  • Publication Information: Ithaca, N.Y. : Cornell University Press, 1982
  • Publication Type (Medium): History
  • Type: Book
  • Permalink: http://books.lawi.us/instrumentalism-and-american-legal-theory/ (Stable identifier)

Additional Format

Online version: Summers, Robert S. Instrumentalism and American legal theory. Ithaca, N.Y.: Cornell University Press, 1982 (OCoLC)756457391

Short Description

295 pages ; 23 cm

Purpose and Intended Audience

Useful for students learning an area of law, Instrumentalism and American legal theory is also useful for lawyers seeking to apply the law to issues arising in practice.

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Bibliographic information

  • Publisher: Cornell University Press
  • Responsable Person: Robert Samuel Summers.
  • Publication Date: 1982
  • Country/State: New York (State)
  • Number of Editions: 19 editions
  • First edition Date: 1982
  • Last edition Date: 2010
  • Languages: English, German, Chinese
  • Library of Congress Code: KF380
  • Dewey Code: 349.7301
  • ISBN: 080141511X 9780801415111
  • OCLC: 8727508

Main Contents

Preface
General introduction
The name “pragmatic instrumentalism”
The American pragmatic instrumentalists
Origins
Importance of pragmatic instrumentalist theories
“Legal realism” inappropriate as a name
Organization of the book
Part one : The elements of the law
1. Theory of value
Maximal satisfaction of wants and interests
A concern with consequences
An empirical approach
An emphasis on particulars (“context”)
2. Means and goals
Law as a social instrument
Goals and goal-structures
Behavioral models of goals and means
Forms of law described (or stated) merely as means
Law as a source and definer of goals
Interaction of goals and means
Part two: The creation and administration of valid law
3. Change, science, and the creation of law
The creation of law
methodology
Some excesses and myopias
Other issues in the theory of lawmaking
4. Valid law I
official action
The validity of law as determined by reference to official action
Prescribing standards of validity
a task for legal theorists?
“The law in action” versus “the law in books”
5. Valid law II
Predictions
The predictive theory
Motivations and VIrtues of predictivism as a theory of legal validity
Deficiencies of robust predictivism as a theory of legal validity
Deficiencies of robust predictivism as an account of good lawyering
Other faults of predictivism
Presuppositions of robust predictivism
6. Legal method
The attack on formalism
A. Comprehensiveness of preexisting law
B. Extent and appropriateness of judicial lawmaking
C. Considerations relevant in lawmaking
D. Reality of valid existing law
E. Appropriate generality of law
F. In legal analysis: relative primacy of facts, things, and effects over unitary concepts and terminology
G. Issues of interpretation and application: case law
H. Issues of interpretation and application: written law
I. “Deductivism”
Tabular summary of the attack on formalism
Other legal methods attacked by instrumentalists
Criticism of instrumenalist method
the common law's alleged indeterminacy
Criticism of instrumentalist method
the insufficient role for substantive reasons
Criticism of instrumentalist method
the animus toward generality
7. The separation of law and morals
On interpreting the “separationists”
The substance law
Scope of judicial lawmaking
Standards for indentifying valid law
Interpretation and other issues
Part three: The implementation and functioning of law
8. Law's implementive “machinery”
A preliminary inventory of law's resources
Law as technology
The unwisdom of technologial metaphors
9. The nature and role of personnel
The personnel element in law
Personnel versus precept
Officials versus nonofficals
“Decision theory”
10. Coercion, force, and direct official action
Coercion and force
Directness of official action
Part four: the efficacy of law
11. Criterion for judging the success of a use of law
The complex evaluative nature of efficacy judgments
Further difficulties in applying an efficacy criterion
The deficiencies of efficacy as a criterion of success
Actual efficacy as a criterion of success and predicted efficacy as a justification standard
differences and relationships
12. The limited efficacy of law
Instrumentalism and law's limited efficacy
A more systematic approach
General conclusion
Pragmatic instrumentalist theories about law and its use
Distinctiveness of pragmatic instrumentalist theories
American pragmatic instrumentalist thought
a distinct general theory?
American pragmatic instrumentalist thought
Its influence in America
The balance sheet and the agenda
Selected bibliography
Index.

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  • Article Name: Instrumentalism and American legal theory
  • Author: Jeffrey Kim
  • Description: Instrumentalism and American legal theory Law of America > Law of the United States > Federal law. Common and collective [...]

This entry was last updated: January 14, 2016

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