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