19 Ratio Juris 1 (2006)

handle is hein.journals/raju19 and id is 1 raw text is: 


Ratio Juris. Vol. 19 No. 1 March 2006 (1-25)


Legisprudence as a New Theory

of Legislation


LUC   J. WINTGENS


Abstract. Legal theory has so far focused exclusively on judicial activity, not on leg-
islation. This is due to the specific legal framework of reasoning, upon which it is
essential to act upon rules, wherever they come from. This form of (strong) legalism
is criticized and replaced by weak legalism. Weak legalism makes it possible to detect
the principles of legislation that underly the activity of the legislator. Legisprudence
is the theory of these principles.


The  search for a balance between   law and  politics has the advantage of
drawing  two poles into legal research. In this paper I will argue that the sep-
aration of law and politics that has until recently been predominant in legal
thinking means  that there is no balance to seek, far less a balance to strike.
Because  of this separation, the creation of law through legislation has not
been deemed   a proper theme  of attention for legal theory (Waldron 1999b,
2ff.). Legislation belongs to the realm of politics focused on by political sci-
entists of various sorts.
  Law  for its part is recognised as rooted in politics, though it lives its own
life having been cut off from this root. Law has its own method   of study,
called legal dogmatics or, more broadly, legal theory of different sorts. The
way  law is created through the process of legislation does not appear on the
screen of the legal theorist. The question why this is so, and a critique of this
position, is the topic of this contribution.
  The  central thesis is that law is separated from politics for a political
reason. The separation is operated on epistemological grounds, which  con-
tribute to the concealment  of the political choices made. As a result, the
domain  of values, both moral and political, is structured on a neutral basis
that prevents the elaboration of a rational theory of legislation.'

1 In this respect, I disagree with Jeremy Waldron, who claims that: We paint legislation up in
these lurid shades [deal-making, horse-trading, log-rolling, etc.] in order to lend credibility to

D Blackwell Publishing Ltd 2006, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

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