ISBN:
9783319000626
Language:
English
Pages:
Online-Ressource (XIII, 186 p. 8 illus, digital)
Series Statement:
Legisprudence Library, Studies on the Theory and Practice of Legislation 1
Series Statement:
SpringerLink
Series Statement:
Bücher
Parallel Title:
Druckausg. The rationality and justification of legislation
Keywords:
Philosophy of law
;
Political science Philosophy
;
Law
;
Law
;
Philosophy of law
;
Political science Philosophy
;
Law
;
Philosophy of law
;
Political science / Philosophy
;
Aufsatzsammlung
;
Gesetzgebung
;
Rechtsphilosophie
;
Rechtsphilosophie
;
Gesetzgebung
Abstract:
The essays collected in this book address legislation from the viewpoint of legal theory and provide an overview of current research in legisprudence as a new scholarly approach to lawmaking. The overall focus of the volume is on the justification of legislation, with a special emphasis on the intricate notion of legislative rationality. With the rational justification of legislation as their central theme, the essays elaborate on the foundations and bounds of legislation and the search for a more principled lawmaking, discuss the role of legislation within the framework of democratic constitutionalism, analyze legislation as implementation of constitutional law, and explore how legislative argumentation in parliament can be construed as a source of justification of laws.
Description / Table of Contents:
Preface; Contents; Contributors; Chapter 1: The Rational Legislator Revisited. Bounded Rationality and Legisprudence; 1.1 The Familiar View and Its Discomfort; 1.2 Rationality; 1.3 The Principle of Charity; 1.4 Bounded Rationality; 1.4.1 A Boundedly Rational Legislator as a Legal Agent; 1.4.2 Contingency; 1.4.3 Diachronic Contingency: Effects of Norms; 1.5 Legal Validity; 1.6 Legal Validity and Rationality Review; 1.7 Conclusion; References; Chapter 2: The Principled Legislative Strategy: Rationality of Legal Principles in the Creation of Law?; 2.1 Introduction
Description / Table of Contents:
2.1.1 Legislation - Creation of General Norms on National Level2.1.2 Influence of Regulatory Turn and Human Right Principles; 2.1.3 Legal Principles and "State Paradigm"?; 2.2 Rationality Presumption in the Creation of Law; 2.2.1 Rationality and Knowing About Legal Principles as Philosophical Problem - Kant, Hegel, Hume; 2.2.2 Institutional Rationality in the Complex Regulatory Framework; 2.2.3 Legal Principles - Integrated or Independent?; 2.3 Weinberger's Analysis: What It Is Possible to Know?; 2.3.1 Universal Acceptance of Principles; 2.3.1.1 Justice as Formal Principle
Description / Table of Contents:
2.3.1.2 Justice as a Material A Priori2.3.1.3 Anthropologically Given Principles; 2.3.1.4 Utilitarian Criteria; 2.3.1.5 Rawlsian Theory of Justice; 2.3.2 Justice - The Standard of a Normative Order; 2.3.3 Weinberger's Non-cognitivist Approach; 2.4 Wintgens and Legisprudence: Searching for the Rational Legislator?; 2.4.1 Legality?; 2.4.2 External and Internal Perspective to the Legislative Activity?; 2.4.3 "Freedom as Principium"; 2.5 Conclusions; References; Chapter 3: Three Grounds for Tests of the Justifiability of Legislative Action: Freedom, Representative Democracy, and Rule of Law
Description / Table of Contents:
3.1 The Trade-Off Model of the Social Contract3.2 The Proxy Model in a Representative Democracy; 3.3 The Rule of Law Requirements; 3.4 Conclusion; References; Chapter 4: Legisprudence in the Korean Context: A Practical Approach Focusing on the Confucian Effects on Rationality; 4.1 Introduction; 4.2 Rationality of Legislation Studies in Korea; 4.2.1 Rationality and Scientificity; 4.2.2 Confucian Tradition of Korea; 4.2.3 Rationality and Legal Consciousness in Korea; 4.3 Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons; 4.4 Conclusion; References
Description / Table of Contents:
Chapter 5: The Role of Constitutionalism in Regulatory Governance5.1 The Strategy of Constitutionalism, Briefly Revisited; 5.2 Constitutional Workability and Governmental Powers; 5.2.1 Constitutional Forms of Governmental Power; 5.2.2 Potestas and Societas : Governing as "Ruling Within the Constitution"; 5.2.3 Potentia and Universitas : Governing as "Constitutional Management"; 5.3 Constitutional Government as a Regulatory Regime for Open Access Societies; 5.3.1 Open Access Societies; 5.3.2 Some Elements of the Regulatory-Constitutional Regime of Open Access Societies
Description / Table of Contents:
5.3.2.1 Ways of Gathering Information
Note:
Description based upon print version of record
DOI:
10.1007/978-3-319-00062-6
URL:
Volltext
(lizenzpflichtig)
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