Constitutionalism and Legal Reasoning / Edition 1

by Massimo La Torre

Overview

This book of legal philosophy contends that positive law is better understood if it is not too easily equated with power, force, or command. Law is more a matter of discourse and deliberation than of sheer decision or of power relations. Here is thought-provoking reading for lawyers, advocates, scholars of jurisprudence, students of law, philosophy and political science, and general readers concerned with the future of the constitutional state.

Product Details

ISBN-13:	9781402055942
Publisher:	Springer Netherlands
Publication date:	04/20/2007
Series:	Law and Philosophy Library , #79
Edition description:	2007
Pages:	192
Product dimensions:	6.10(w) x 9.25(h) x 0.02(d)

Table of Contents

Preface.

Part I: Law as Constitution.

1. Rhetoric and Practical Reason. 1.1. Two Paradigms of Right Reasoning. 1. 2. From Fundamental Law to Social Contract and Self-Institution. 1. 3. Modern Constitutionalism.

2. Constitutionalism and Legal Positivism. 2.1. Law as Fact. 2.2. Legislation and Sovereignty. 2.3. The Raise of German Public Law. 2.4. Legal Positivism and Constitutionalism.

3. From State Law to Constitutional State, or, from Herrschaft to "Discourse". 3.1. Normativity and Facticity. 3.2. Normativism, Institutionalism, Decisionism. 3.3. "Wille zur Verfassung", Will of Constitution.

Part II: Legal Argumentation and Concepts of Law.

1. Rhetoric and Practical Reason. 1.1. Two Paradigms of Right Reasoning. 1.2. Theoretical Versus Practical Rationality.

2. Legal Reasoning Redeemed. 2.1. Rehabilitation of Practical Reason: the Topic. 2.2. The "New Rhetoric" School. 2.3. Philosophical Hermeneutics.

3.Contemporary Doctrines. 3.1. Neil MacCormick’s Formalist Model. 3.2. Ronald Dworkin’s Interpretive Turn. 3.3. Discourse Theory.

4. Law as Discourse and Constitution. 4.1. Morality Reconnected to Law. 4.2. A New Model of Democracy.

Part III: The Practice of Law and Legal Ethics.

1. "Jurists, bad Christians". 1.1. Lawyers According to the Tradition. 1.2. The Legal Positivist Myth. 1.3. Plato, Kant and Modern Jurisprudence.

2. Ambiguity of Deontological Rules. 2.1. Deontological Codes. 2.2. Civil law and Common Law.

3. Two Opposed Paradigms. 3.1. The Legalistic Approach. 3.2. The Moralistic Approach.

4. Legal Ethics and the Concept of Law. 4.1. The "Moral Amorality" Thesis. 4.2. The "Full Morality" Thesis. 4.3. A Pragmatist Alternative and the Radbruch Formula.

Epilogue.

Appendix A: Natural Law: "Exclusive" Versus "Inclusive". Appendix B: Robert Alexy's Constitutional Rights Theory.