Creation and aplicationof law a neglected distinction
"This book investigates the conceptual structure of the distinction between creation and application of law, ranging widely across philosophy of law and philosophy of language, and incorporating a substantial discussion of the historical and philosophical foundations of administrative law. The...
| Otros Autores: | |
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| Formato: | Libro electrónico |
| Idioma: | Inglés |
| Publicado: |
[Place of publication not identified],
HART Publishing
2017.
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| Edición: | First edition |
| Colección: | Law and Practical Reason
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| Materias: | |
| Ver en Biblioteca Universitat Ramon Llull: | https://discovery.url.edu/permalink/34CSUC_URL/1im36ta/alma991009762704506719 |
Tabla de Contenidos:
- Intro
- Acknowledgements
- Contents
- Introduction
- I. Aims and structure of the work
- 1. Law, Power, and Political Authority. On the Scope and Limitations of the Work
- I. Introduction
- II. Brief Methodological Remarks
- III. The Province of the problem Determined: What is Law?
- IV. Politics, Political Power, Political Authority
- V. From Powers to Power. The Familiar Tale of the Ineluctability of the State
- VI. The Conditions of Existence of Political Authority: insights from the theory of normative orders
- 2. The Dependence of Constitutional Democracy on the Distinction between Creation and Application of Law
- I. Introduction
- II. The Contested Relationship between Law and Politics
- III. Law as lex and as ius: the duality that makes constitutionalism possible
- IV. From constitutions to constitutionalism: narrowing the focus of constitutional theory
- V. The (proverbial) tension between democracy and constitutionalism
- VI. Modern constitutionalism as 'legal otherness'
- VII. The two-fold justificatory dependence of constitutional democracy on the idea of application of law
- 3. A Critical Evaluation of Moderate Legal Realism
- I. Introduction
- II. Realism vs formalism
- III. Let us be realist about adjudication. What do judges eat for breakfast?
- IV. Realism and realisms in law: meta-theory
- V. The lowest common denominator of legal realism
- VI. The two axes of rule-scepticism
- VII. The unbearable lightness of moderate scepticism
- VIII. On the normativity of law, and on the digestion of judges
- 4. Towards a Unified Account of Discretion in Law
- I. Introduction
- II. HLA Hart and the concept of discretion. Back to the future?
- III. Dworkin and the (normative) no-strong-discretion thesis
- IV. Discretion as a pervasive feature of Kelsen's Stufenbaulehre.
- V. Discretion as balancing in Klatt (and Alexy)
- VI. The history of discretion in the administrative domain
- VII. Administrative discretion in Germany
- VIII. Discretion in the French-Italian administrative tradition
- IX. The concept of discretion in English administrative law
- X. Towards a unified account of discretion in law
- XI. Conclusion
- 5. Law and Language and as Language. An Alternative Picture of a Multifaceted Relationship
- I. Introduction
- II. The communicative model of law. A two-way affair?
- III. Beyond 'what is said'. Speech-act theory and the rise of pragmatics in legal interpretation
- IV. First objection: law as language, law and language(s)
- V. Second objection: speech-act vs text-act theory
- VI. Legal texts as 'autonomous' text-acts
- VII. An alternative theory of legal meaning: semantic minimalism
- VIII. Prolegomena to a theory of legal interpretation
- IX. Conclusion
- 6. Creation and Application of Law. An Analytical Distinction
- I. Introduction
- II. The two extremes: rejecting vs assuming the distinction
- III. Kelsen on the relativity of the distinction between creation and application of law
- IV. Creation of law: of the typicality of legal rules
- V. The principle of legality as a (semantic) meta-norm on law-creation and law-application
- VI. Unpacking the idea of 'application of law'
- VII. The potential asymmetry between norm-following and norm-application
- VIII. On the (different) normativity of power-conferring norms
- IX. Can only officials apply the law?
- X. Form and substance. Towards an analytical account of law-application
- XI. Conclusion
- XII. PS One final objection: interpretation, interpretation, interpretation!
- 7. The Separation of Powers. A Meta-theoretical Reassessment
- I. Introduction
- II. Genealogical issues. When was the separation of powers 'invented'?.
- III. A twofold meta-theoretical ambiguity plaguing the discussion
- IV. The justificatory debate. Monism vs pluralism
- V. Critical approaches
- VI. The separation of powers as a formal theory and as a normative doctrine. On the advantages of maintaining a strict distinction
- VII. Conclusion
- Bibliography
- Index.
