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).

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