Constitutionalism and Legal Reasoning立宪与法律推理

书籍目录

Preface.Chapter I: Law as Constitution　1. Rhetoric and Practical Reason　　1.1. Two Paradigms of Right Reasoning　　1.2. From Fundamental Law to Social Contract and Self-Institution　　1.3. Modern Constitutionalism　2. Constitutionalism and Legal Positivism　　2.1. Law as Fact　　2.2. Legislation and Sovereignty　　2.3. The Raise of German Public Law　　2.4. Legal Positivism and Constitutionalism　3. From State Law to Constitutional State, or, from Herrschaft to "Discourse"　　3.1. Normativity and Facticity　　3.2. Normativism, Institutionalism, Decisionism　　3.3. "Wille zur Verfassung", Will of ConstitutionChapter II: Legal Argumentation and Concepts of Law　1. Rhetoric and Practical Reason　　1.1. Two Paradigms of Right Reasoning　　1.2. Theoretical Versus Practical Rationalit　2. Legal Reasoning Redeemed　　2.1. Rehabilitation of Practical Reason: the Topic　　2.2. The "New Rhetoric" School　　2.3. Philosophical Hermeneutics　3.Contemporary Doctrines　　3.1. Neil MacCormick’s Formalist Model　　3.2. Ronald Dworkin’s Interpretive Turn　　3.3. Discourse Theory　4. Law as Discourse and Constitution　　4.1. Morality Reconnected to Law　　4.2. A New Model of DemocracChapter III: The Practice of Law and Legal Ethics　1. "Jurists, bad Christians"　　1.1. Lawyers According to the Tradition　　1.2. The Legal Positivist Myth　　1.3. Plato, Kant and Modern Jurisprudence　2. Ambiguity of Deontological Rules　　2.1. Deontological Codes　　2.2. Civil law and Common Law　3. Two Opposed Paradigms　　3.1. The Legalistic Approach　　3.2. The Moralistic Approach　4. Legal Ethics and the Concept of Law　　4.1. The "Moral Amorality" Thesis　　4.2. The "Full Morality" Thesis　　4.3. A Pragmatist Alternative and the Radbruch FormulaEpilogue. Appendix A: Natural Law: "Exclusive" Versus "Inclusive"Appendix B: Robert Alexy's Constitutional Rights TheoryAuthor IndexSubject Index

作者简介

This 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' interests, 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 inescapable 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.

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