About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

4 Legisprudence 3 (2010)

handle is hein.journals/legisp4 and id is 1 raw text is: FOREWORD TOWARDS A THEORY OF LEGISLATIVE ARGUMENT A Daniel Oliver-Lalana* In constitutional democracies, representatives having a seat on a legislature are expected to put forward, discuss and weigh the reasons for which they pass laws. Parliamentary debates should thus convey a public justification for lawmaking, so that interested citizens can monitor the soundness of legislative arguments and decisions. If such a claim is to be taken seriously, and not as a pure ideological delusion, argumentation and legislation do necessarily belong together: making a law includes arguing about it. However, deliberations in parliament are very seldom conceived of as a mode of reasoning aimed at justification or addressed as a pattern of rationality (reasonableness), correctness or legitimacy of laws. Sceptical and realistic approaches to legislation, which remain dominant both in political theory and jurisprudence-the same goes for public opinion and average citizens-, do not seem to leave much room for hopes of any rational discussion underlying statutes in fact. For sure, there may be plenty of instances of failed justification in parliamentary lawmaking practices. Yet this cannot simply lead us to give up the expectation that laws, as authoritative decisions, must be properly discussed by those entrusted to make them-the normative core of modern legal cultures would then radically change. We are not better off assuming the inability of the legislatures to justify their outcomes or bowing to an allegedly inescapable arbitrariness of politics-few advances are likely to be achieved that way. What we could need, rather, is a closer examination and better understanding of lawmaking deliberations as source of justification of laws, thereby clearing the ground for a theory of legislative argument being part of a comprehensive theory of legislation. This special issue is an attempt to contribute to that project. The interest in the justificatory potential of lawmaking deliberations might be explained with three interwoven theses. The first one states that, as a normative, collectively binding decision, every law can be taken to entail a claim to t iversity of La Rioja. This edition was prepared during a research stay at the Center for Legislation, Regulation and Legisprudence of the University of Brussels (HUB) in 2009, within the framework of the project Justification of Legislation in the Constitutional State, supported by the Spanish Ministry of Science and Innovation through the National R+D+l Plan 2008-2011. 1 wish to thank Jan Sieckmann, Paul Quirk, and Luc Wintgens for their valuable comments and the University of Brussels (HUB-KUBrussel) for providing me with an excellent working environment. Cf eg B Tamanaha, Law as a Mteans to an End (Cambridge University Press, 2006) or F Laporta, El inperio de la ley (Madrid, Trotta, 2007).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most