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The Making of Constitutional Democracy: From Creation to Application of Law


ISBN13: 9781509905225
Published: January 2022
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £90.00
Paperback edition , ISBN13 9781509955213



This is a Print On Demand Title.
The publisher will print a copy to fulfill your order. Books can take between 1 to 3 weeks. Looseleaf titles between 1 to 2 weeks.

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This book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable.

The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded.

After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine.

Subjects:
Constitutional and Administrative Law
Contents:
Introduction
1. Law, Power, and Political Authority. On the Scope and Limitations of the Work
2. The Dependence of Constitutional Democracy on the Distinction Between Creation and Application of Law
3. A Critical Evaluation of Moderate Legal Realism
4. Towards a Unified Account of Discretion in Law
5. Law and Language and as Language. An Alternative Picture of a Multifaceted Relationship
6. Creation and Application of Law. An Analytical Distinction
7. The Separation of Powers. A Meta-Theoretical Reassessment

Series: Law and Practical Reason

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Law's Humility: Enlarging the Scope of Jurisprudential Disagreement ISBN 9781509936502
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Freedom and Force: Essays on Kant's Legal Philosophy ISBN 9781849463164
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Shared Authority: Courts and Legislatures in Legal Theory ISBN 9781509913794
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Shared Authority: Courts and Legislatures in Legal Theory ISBN 9781849463898
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The Logic of Autonomy: Law, Morality and Autonomous Reasoning (eBook) ISBN 9781782250203
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The Normative Claim of Law ISBN 9781841139678
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Publication Abandoned