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Victor P. Goldberg

Rethinking Contract Law and Contract Design presents a rich array of ideas that reassess the law and economics of contractual relations. Victor P. Goldberg uses a transactional framework to critically analyse and re-evaluate contract doctrine and specific legal cases. This important work examines particular contractual precepts whilst conducting a detailed exercise in legal archaeology, challenging readers to reconsider significant legal decisions by forensic exploration of records, briefs, and other materials, including the staple cases of textbooks and casebooks.
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Geoffrey Samuel

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Geoffrey Samuel

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Geoffrey Samuel

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Geoffrey Samuel

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Geoffrey Samuel

This introduction provides an overview of the substance of the book – together with its aims – and, in particular, the approaches that will be adopted. It discusses in some depth a diachronic approach as contrasted with a synchronic approach and then goes on to discuss briefly the various frameworks within which legal reasoning is to be examined.

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Geoffrey Samuel

This first chapter on what legal reasoning has been focuses on the medieval Italian jurists and their glosses and commentaries on Roman law. The argument is that it is the reasoning processes of these jurists that formed the direct historical basis for several particular characteristics of legal reasoning as it is today. The chapter discusses in some depth the dialectical and hermeneutical methods of these jurists and the use of divisio and distinctiones in order to solve both contradictions within the Roman sources themselves and the mass of factual problems and disputes that were relevant to the medieval period. The epistemological impact on legal thought of Aristotle’s rediscovered writings is also noted, as are the political and social issues which were theorised through the use of Roman law concepts.

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Geoffrey Samuel

The second chapter on what legal reasoning has been looks backwards from the medieval jurists to Roman law itself. The structural importance of the institutional scheme of persons (personae), things (res) and actions (actiones) is discussed as is the use of genus and species as the general basis of Roman law taxonomy. The chapter then goes on to examine in considerable depth the actual reasoning methods and techniques employed by the Roman jurists together with the philosophical and theory contexts in which this reasoning functioned. The relationship between these reasoning techniques and legal literature and texts is equally considered. The chapter aims to highlight several institutional and epistemological characteristics: for example the importance of the legal action (actio) as a starting point for reasoning at a case law level and the reluctance to see the source of law as existing in a set of abstract rules (regulae iuris).

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Geoffrey Samuel

This third chapter on what legal reasoning has been looks forwards from the medieval jurists to the centuries following on from the end of the Middle Ages up to present times, namely from the sixteenth century onwards. This century experienced what is often called the Humanist Revolution. As the chapter points out, the humanist jurists adopted a very different approach to the Roman texts in as much as they no longer saw these sources as timeless authorities emanating ultimately from God but as historical documents. They thus developed an historical methodology towards the Roman texts in order to be able to identify the actual (rather than altered) writings of the classical jurists whom they considered to be true legal scientists. They also brought to bear on the Roman sources ‘scientific’ thinking which involved a reorganisation of the Digest along systematic lines (following the order of the Institutes) together with, in the hands of Doneau, an orientation founded on the notion of a ‘subjective right’. These humanists were regarded as the first ‘modern’ lawyers and in subsequent centuries their rationalised thinking was developed by jurists into an axiomatic approach to law finding expression in the civil codes of Europe. In addition, the humanist jurists emphasised the importance of interpretation (interpretatio), developing many of the techniques in use today. The chapter then goes on to examine the historical development of the common law, a tradition of legal thinking that functioned outside the Roman learning (at least until the nineteenth century).

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Geoffrey Samuel

In this fourth chapter the aim is to identify what might be called institutional models or focal points for legal reasoning which have emerged out of the history of legal thought and reasoning. Six such models present themselves: they are the rule model, the interpretation model, the rights model, the interest model, the policy model and the remedies model. These models appear to be well entrenched in common law judicial reasoning, due no doubt, at least in part, to the influence of Roman legal ‘science’ on the common lawyers following the abolition of the forms of action. Each model is discussed in some depth.