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001 978-1-4020-5595-9
003 DE-He213
005 20161121230725.0
007 cr nn 008mamaa
008 100301s2007 ne | s |||| 0|eng d
020 _a9781402055959
_9978-1-4020-5595-9
024 7 _a10.1007/978-1-4020-5595-9
_2doi
050 4 _aK1-7720
072 7 _aL
_2bicssc
072 7 _aLAW000000
_2bisacsh
082 0 4 _a340
_223
100 1 _aTorre, Massimo La.
_eauthor.
245 1 0 _aConstitutionalism and Legal Reasoning
_h[electronic resource] /
_cby Massimo La Torre.
264 1 _aDordrecht :
_bSpringer Netherlands,
_c2007.
300 _aXIV, 192 p.
_bonline resource.
336 _atext
_btxt
_2rdacontent
337 _acomputer
_bc
_2rdamedia
338 _aonline resource
_bcr
_2rdacarrier
347 _atext file
_bPDF
_2rda
505 0 _aPreface. Part I: Law as Constitution. 1. Rhetoric and Practical Reason. 2. Constitutionalism and Legal Positivism. 3. From State Law to Constitutional State, or, from Herrschaft to "Discourse".-Part II: Legal Argumentation and Concepts of Law. 1. Rhetoric and Practical Reason. 2. Legal Reasoning Redeemed. 3. Contemporary Doctrines. 4. Law as Discourse and Constitution -- Part III: The Practice of Law and Legal Ethics. 1. "Jurists, bad Christians". 2. Ambiguity of Deontological Rules. 3. Two Opposed Paradigms. 4. Legal Ethics and the Concept of Law. Epilogue -- Appendix A: Natural Law: "Exclusive" Versus "Inclusive". Appendix B: Robert Alexy's Constitutional Rights Theory.
520 _aThis is a search of a model for a humane law -- where the cruelty ban is still in force. This book however is not intended as an utopian enterprise; the humane law which is looked for is not for the future, nor is it meant as a reform project, or as a programme for new institutions to come. here the contention is that positive law is better understood, if it is not too easily equated with power, force, or command. Law -- it is shown -- is more a matter of discourse and deliberation, than of sheer decision or of power relations. Constitutionalism, legal argumentation, legal ethics -- three fundamental moments of our daily experience with the law -- are there to witness that this view may be right. Now a "constitutional" view of the law and its practice and the connected discoursive approach to legal reasoning can offer interesting solutions also to legal ethics. If we take legal reasoning seriously, and conceive it in a "liberal" way comprising both lawyers and judges, so that adjudication is both a task for advocates and judges, the requirement of separation of powers on the one side is already full of implications for lawyers' deontology: the role of a lawyer will not be allowed to encroach with the one fulfilled by the statesman. On the other side, the claim of rightness intrinsic in legal discourse cannot avoided by lawyers. So that they could no longer be seen as defenders of clients' interestes, but of their rights. And rights are claims to be right.. Thus the requirement of justice, or better a certain threshold imposed on the tolerable injustice of the legal claim raised, will be unescapable not only for the judge, but to the lawyer as well. The general idea of this book may unfortunately run counter recent developments in the international arena and more generally in the less palpable Zeitgeist. It might well be that, like Hegel's owl that takes flight at sunset, a conceptual pattern is set forth while the corresponding institutional practice is beginning to die out.
650 0 _aLaw.
650 0 _aEthics.
650 0 _aPolitical science.
650 0 _aPolitical philosophy.
650 1 4 _aLaw.
650 2 4 _aLaw, general.
650 2 4 _aPhilosophy of Law.
650 2 4 _aPolitical Philosophy.
650 2 4 _aEthics.
710 2 _aSpringerLink (Online service)
773 0 _tSpringer eBooks
776 0 8 _iPrinted edition:
_z9781402055942
856 4 0 _uhttp://dx.doi.org/10.1007/978-1-4020-5595-9
912 _aZDB-2-SHU
950 _aHumanities, Social Sciences and Law (Springer-11648)
999 _c503055
_d503055