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Legal Reasoning and Political Conflict

by Cass R. Sunstein

  • ISBN: 9780195100822
  • ISBN10: 0195100824

Legal Reasoning and Political Conflict

by Cass R. Sunstein

  • Binding: Hardcover
  • Publisher: Oxford Univ Pr on Demand
  • Publish date: 04/01/1996
  • ISBN: 9780195100822
  • ISBN10: 0195100824
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Description: In Legal Reasoning and Political Conflict, Sunstein, one of America's best-known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not - indeed, must not - delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning - and as a central part of constitutional thinking in America, South Africa, and Eastern Europe - he takes issue with advocates of comprehensive theories and systematization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seemimpenetrable, mysterious, baroque. This book helps dissolve the mystery.
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