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Title: Dynamic interpretation in negligence law
Author: Lung, Tsai (Cai Long)
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 2001
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The present study aims at an explanation of dynamic interpretation in negligence law. It is argued that the development of negligence law is dynamic on the grounds that it has to incorporate tentative social presumptions, open-textured concepts, and flexible standards. Furthermore, the courts have considerable leeway in formulating basic premises and creative freedom in re-shaping, re-interpreting, and applying rules in particular cases. The central task of the study is therefore to explore this assertion, to demonstrate the ambiguity inherent in seemingly clear-cut legal principles, and to reconstruct legal reasoning so that it would be more coherent and responsive to social needs. Thesis starts with a fundamental presupposition of the central theme. It is presupposed that one helpful approach to analysing dynamic interpretation in negligence law is to consider it in the setting of legal reasoning treated as what Weinrib calls the 'justificatory enterprise'. In respect of that, there have to be some justificatory premises (legal concepts) by reference to which it is justified, and some justificatory reasoning process which links the premises and justification. The justification of any legal decision thus requires the application of appropriate justificatory reasoning to show how the decision is supported by or derivable from appropriate justificatory premises. Once these premises are agreed, a conclusion can be made, or justified, by deductive logic. Legal problems of interpretation, however, arise exactly when we seek to determine the premises, that is, when we seek to ascribe their possible meanings as well as the criteria for deciding which cases are alike for this purpose or that. It involves two levels of enquiry: textual and contextual. The first level involves establishing what the relevant legal concepts mean and the relation between these concepts and the object of their reference. The second level is the contextual enquiry. It confronts the consequences of competing interpretations, and, by evaluating these, one chooses a preferable interpretation. Weinrib shows that the law of negligence illustrates the coalescence of a number of normative conceptual premises e.g. standard of care, duty of care, and proximity into a coherent justificatory ensemble. Chapters two to four deal with problems of textual interpretation.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available