司法判例的理论与经验性分析

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【作者】波斯纳

【内容提要】

IN a legal system such as ours, in which legislative bodies confine themselves for the most part to prescribing general norms of conduct rather than highly specific rules, the published decisions of courts and administrative agencies interpreting and applying the legislative enactments are important sources of the specific rules of law. When the parties to a legal dispute are unable to agree on the meaning of the governing statute as applied to their dispute, litigation may ensue in which that meaning will be an issue for the court to resolve. The court's resolution will define the specific requirements of the statute in the circumstances presented by the case and thus create (subject to a qualification noted below) a specific rule of legal obligation applicable to like circumstances.The rules produced by the process of adjudication are distinctive in being implicit rather than explicit rules……

【关键词】Legal precedent, Theory analysis,Empirical anayisis

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