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This book explores the constitutional, legally binding dimension to
legisprudence in the light of the German Federal Constitutional
Courts approach to rational lawmaking. Over the last decades this
court has been remarkably active in applying legisprudential
criteria and standards when reviewing parliamentary laws. It has
thus supplied observers with a unique material to analyse the
lawmakers' duty to legislate rationally, and to assess the virtues
and drawbacks of this strand of judicial control in a
constitutional democracy. By bringing together legislation experts
and public law scholars to elaborate on 'legisprudence under
review', this contributed volume aspires to shed light on the
constitutionalisation of rational lawmaking as a controversial
trend gaining ground in both national and international
jurisdictions. The book is divided into five parts. Part I frames
the two key issues pervading the whole collection: the intricate
relationship between judicial review and democracy, on the one
hand, and the possibility of improving and rationalizing the task
of legislation under the current circumstances of politics, on the
other. Part II provides an overview of the judicial review of
rational lawmaking, laying special emphasis on the duty of
legislative justification imposed on lawmakers by the German
Constitutional Court. Part III is devoted to the review of the
systemic rationality of legislation, in particular to the
requirements of legislative consistence and coherence as developed
by this court. Contributions in Part IV revolve around the judicial
scrutiny of the socio-empirical elements of rational lawmaking,
with the control of legislative facts and impacts and the problem
of symbolic laws being the central topics. Finally, Part V draws on
the German case law to discuss the links between rational
lawmaking, balancing and proportionality, and the interdependence
between process review and substantive review of legislation.
This book explores the constitutional, legally binding dimension to
legisprudence in the light of the German Federal Constitutional
Courts approach to rational lawmaking. Over the last decades this
court has been remarkably active in applying legisprudential
criteria and standards when reviewing parliamentary laws. It has
thus supplied observers with a unique material to analyse the
lawmakers' duty to legislate rationally, and to assess the virtues
and drawbacks of this strand of judicial control in a
constitutional democracy. By bringing together legislation experts
and public law scholars to elaborate on 'legisprudence under
review', this contributed volume aspires to shed light on the
constitutionalisation of rational lawmaking as a controversial
trend gaining ground in both national and international
jurisdictions. The book is divided into five parts. Part I frames
the two key issues pervading the whole collection: the intricate
relationship between judicial review and democracy, on the one
hand, and the possibility of improving and rationalizing the task
of legislation under the current circumstances of politics, on the
other. Part II provides an overview of the judicial review of
rational lawmaking, laying special emphasis on the duty of
legislative justification imposed on lawmakers by the German
Constitutional Court. Part III is devoted to the review of the
systemic rationality of legislation, in particular to the
requirements of legislative consistence and coherence as developed
by this court. Contributions in Part IV revolve around the judicial
scrutiny of the socio-empirical elements of rational lawmaking,
with the control of legislative facts and impacts and the problem
of symbolic laws being the central topics. Finally, Part V draws on
the German case law to discuss the links between rational
lawmaking, balancing and proportionality, and the interdependence
between process review and substantive review of legislation.
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.
This volume brings together an international group of legal
scholars to discuss different approaches to lawmaking. As well as
reflecting the diversity of legisprudence as a re-emerging academic
field, it offers a broad overview of current developments and
challenges in the theory of legislation, and aspires, moreover, to
counterbalance some questionable ideas or misconceptions,
widespread among jurists, on what making laws entails. The book is
organized into three parts. The first comprises a sample of 'ways
and models of legislation', ranging from classic legislative ideals
to contemporary forms of regulation. The essays in this part,
variances of focus notwithstanding, revolve around the notions of
legislative rationality, quality, effectiveness, and legitimacy,
which may be regarded as the cornerstones of legisprudence.
Interwoven with these notions is another core legisprudential
concern: the justification of laws. We address it separately in the
next part by exploring the connection between lawmaking,
argumentation and constitutional democracy: under the heading
'legislation in a culture of justification', a number of aspects of
this connection are tackled that have not been sufficiently
considered so far in legisprudential literature, such as the
intricacies of legislative reasoning and balancing, or the
justificatory problems posed by special-interest legislation. The
under privileged status of legisprudence in legal studies and the
need for socially attentive and citizen-oriented legislative
research come to the fore in the third part of the book which turns
to the relationships between 'legisprudence, lawyers, and
citizens'. All in all, the thirteen articles gathered here provide
a stimulating insight into the theory of legislation, and can
hopefully contribute to the reconciliation of the study of law and
the study of its making.
This volume brings together an international group of legal
scholars to discuss different approaches to lawmaking. As well as
reflecting the diversity of legisprudence as a re-emerging academic
field, it offers a broad overview of current developments and
challenges in the theory of legislation, and aspires, moreover, to
counterbalance some questionable ideas or misconceptions,
widespread among jurists, on what making laws entails. The book is
organized into three parts. The first comprises a sample of 'ways
and models of legislation', ranging from classic legislative ideals
to contemporary forms of regulation. The essays in this part,
variances of focus notwithstanding, revolve around the notions of
legislative rationality, quality, effectiveness, and legitimacy,
which may be regarded as the cornerstones of legisprudence.
Interwoven with these notions is another core legisprudential
concern: the justification of laws. We address it separately in the
next part by exploring the connection between lawmaking,
argumentation and constitutional democracy: under the heading
'legislation in a culture of justification', a number of aspects of
this connection are tackled that have not been sufficiently
considered so far in legisprudential literature, such as the
intricacies of legislative reasoning and balancing, or the
justificatory problems posed by special-interest legislation. The
under privileged status of legisprudence in legal studies and the
need for socially attentive and citizen-oriented legislative
research come to the fore in the third part of the book which turns
to the relationships between 'legisprudence, lawyers, and
citizens'. All in all, the thirteen articles gathered here provide
a stimulating insight into the theory of legislation, and can
hopefully contribute to the reconciliation of the study of law and
the study of its making.
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