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Common Law – Civil LawThe Chain Novel and Its Normative Fine Structure in Civil Law and Common Law: Dworkin, Brandom and Law’s Normativity

Common Law – Civil Law: The Chain Novel and Its Normative Fine Structure in Civil Law and Common... [This essay defends the thesis that Dworkin’s and Brandom’s theories of law’s normativity are powerful not only with respect to common law but also with respect to civil law. Dworkin explained law as a specific genre of literature—the chain novel—where several authors collaborate in writing a novel and each author builds her chapter on the previous chapters in the chain by creatively interpreting them. Brandom built on Dworkin’s chain novel of law to illustrate his theory of normativity with respect to law. Law’s normativity, Brandom argues, arises through the discursive practice of law which is characterised by mutual recognition as a social and normative attitude. Dworkin and Brandom both developed their theories against a common law background and illustrated them with the practice of individual judges in the common law world. That seems to suggest that their theories of normativity are pointless and unproductive for civil law systems. Yet, this essay argues, Dworkin’s chain novel and Brandom’s normative fine structure of it are equally fruitful for our understanding of civil law. To support this thesis, rhetorical and stylistic characteristics of common law and civil law systems are examined with a focus on the role of legislation. Dworkin’s and Brandom’s theories are applied against the background of legal discourse in a broader sense—including not only judges but also other players of the law (like public officials, solicitors, barristers and the persons involved in legislation). The working of the law’s chain novel in practice will be illustrated with the law on the recognition of child marriages.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Common Law – Civil LawThe Chain Novel and Its Normative Fine Structure in Civil Law and Common Law: Dworkin, Brandom and Law’s Normativity

Part of the Law and Philosophy Library Book Series (volume 139)
Editors: Bersier, Nicoletta; Bezemek, Christoph; Schauer, Frederick
Arnold, Stefan
Common Law – Civil Law — Jan 1, 2022
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20 pages

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Publisher
Springer International Publishing
Copyright
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022
ISBN
978-3-030-87717-0
Pages
29 –49
DOI
10.1007/978-3-030-87718-7_4
Publisher site
See Chapter on Publisher Site

Abstract

[This essay defends the thesis that Dworkin’s and Brandom’s theories of law’s normativity are powerful not only with respect to common law but also with respect to civil law. Dworkin explained law as a specific genre of literature—the chain novel—where several authors collaborate in writing a novel and each author builds her chapter on the previous chapters in the chain by creatively interpreting them. Brandom built on Dworkin’s chain novel of law to illustrate his theory of normativity with respect to law. Law’s normativity, Brandom argues, arises through the discursive practice of law which is characterised by mutual recognition as a social and normative attitude. Dworkin and Brandom both developed their theories against a common law background and illustrated them with the practice of individual judges in the common law world. That seems to suggest that their theories of normativity are pointless and unproductive for civil law systems. Yet, this essay argues, Dworkin’s chain novel and Brandom’s normative fine structure of it are equally fruitful for our understanding of civil law. To support this thesis, rhetorical and stylistic characteristics of common law and civil law systems are examined with a focus on the role of legislation. Dworkin’s and Brandom’s theories are applied against the background of legal discourse in a broader sense—including not only judges but also other players of the law (like public officials, solicitors, barristers and the persons involved in legislation). The working of the law’s chain novel in practice will be illustrated with the law on the recognition of child marriages.]

Published: Jan 1, 2022

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