The Theory and Practice of Legislation: Essays in Legisprudence, 1st Edition (Paperback) book cover

The Theory and Practice of Legislation

Essays in Legisprudence, 1st Edition

Edited by Luc J. Wintgens


368 pages

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Paperback: 9781138264083
pub: 2016-11-15
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Hardback: 9780754624615
pub: 2005-09-21
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This work provides a rational framework for legislation. The unifying premise behind the essays is that, although legislation and regulation are the result of a political process, legislation and regulation can be the object of theoretical study. The volume focuses on problems that are common to most European legal systems and the approach involves applying to legislative problems the tools of legal theory - hence 'legisprudence'. Whereas traditional legal theory deals predominantly with the application of law by the judge, legisprudence enlarges the field of study so as to include the creation of law by the legislator. The original essays published in this collection expose and develop a range of new insights into the relationship between legislative problems and legal theory in a way which will engage and interest legal scholars throughout the world.

Table of Contents

Contents: Introduction, Luc J. Wintgens. Legisprudence: Theorectical Issues; Legisprudence as a new theory of legislation, Luc J. Wintgens; The quest for legisprudence: constitutionalism v. legalism, Imer B. Flores; The evolution of economic thinking about legislation and its interpretation by Courts, Richard A. Posner; Legal instrumentalism revisited, Koen Van Aeken; How rational is rational law making?, Wojciech Cyrul. Constitutionalism, Legalism and Democracy: Two models of democracy: how to make Demos and Hercules collaborate in public deliberation, Tatsuo Inoue; The paradox of democratic representation - on whether and how disagreement should be represented, Samantha Besson; On the decriptive and the prescriptive nature of the Constitution - constitutionalism and the legitmization of the constitution in the practice of its implementation, Pascale Policastro; The theory and practice of constitutional review in the civil law: the case of Belgium, Maurice Adams and Dirk Vanheule. Politics, Legistlation and Legitmacy: Legislating human rights, Tom Campbell; Legitimacy through rationality: parliamentary argumentation as rational justification of laws, A. Daniel Oliver-Lalana; The sources of legitimacy of political decisions: between procedure and substance, José Luis Marti Mármol. Practical Reason, Argumentation and Interpretation: Legislative deliberation: notes from the European Parliament, Neil MacCormick; Reasoning and legislation, Manuel Atienza; Evaluating references to the intention of the legislator, H. José Plug. Practical Issues: EC-law between social message and record of agreement. how the theory of legislation can contribute to understanding practical problems of negotiated legislation, Tito Gallas; The justificaiton and the optimization principle in international nuclear law: theory and practice, Ludo Veuchelen.

About the Editor

Luc J. Wintgens is from the European Academy of Legal Theory, Center of Legislation, Regulation and Legisprudence, University of Brussels, Belgium.

About the Series

Applied Legal Philosophy

Applied Legal Philosophy
The principal objective of this series is to encourage the publication of books which adopt a theoretical approach to the study of particular areas or aspects of law, or deal with general theories of law in a way which is directed at issues of practical, moral and political concern in specific legal contexts. The general approach is both analytical and critical and relates to the socio-political background of law reform issues. This series includes studies of all the main areas of law, presented in a manner which relates to the concerns of specialist legal academics and practitioners. Each book makes an original contribution to an area of legal study while being comprehensible to those engaged in a wide variety of disciplines. Their legal content is principally Anglo-American, but a wide-ranging comparative approach is encouraged and authors are drawn from a variety of jurisdictions.

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Subject Categories

BISAC Subject Codes/Headings:
LAW / Jurisprudence
PHILOSOPHY / Political