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The Making of Constitutional Democracy: From Creation to Application of Law

The Making of Constitutional Democracy: From Creation to Application of Law

Author: Paolo Sandro
Publisher: Hart Publishing
ISBN: 9781509905225

Published In: January 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509955213

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Description
Contents

Details

This book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable.

The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded.

After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine.

Introduction

1. Law, Power, and Political Authority. On the Scope and Limitations of the Work

2. The Dependence of Constitutional Democracy on the Distinction Between Creation and Application of Law

3. A Critical Evaluation of Moderate Legal Realism

4. Towards a Unified Account of Discretion in Law

5. Law and Language and as Language. An Alternative Picture of a Multifaceted Relationship

6. Creation and Application of Law. An Analytical Distinction

7. The Separation of Powers. A Meta-Theoretical Reassessment