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This book of legal philosophy contends that positive law is better understood if it is not too easily equated with power, force, or command. Law is more a matter of discourse and deliberation than of sheer decision or of power relations. Here is thought-provoking reading for lawyers, advocates, scholars of jurisprudence, students of law, philosophy and political science, and general readers concerned with the future of the constitutional state.
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CONSTITUTIONALISM AND LEGAL REASONING
Law and Philosophy Library VOLUME 79
Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK†, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLES†, CONRAD D. JOHNSON†, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ´ ZENON BANKOWSKI, Centre for Law and Society, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universität Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University
CONSTITUTIONALISM AND LEGAL REASONING MASSIMO LA TORRE “Magna Graecia” University of Catanzaro Italy University of Hull England
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN-10: ISBN-13: ISBN-10: ISBN-13:
1-4020-5594-3 (HB) 978-1-4020-5594-2 (HB) 1-4020-5595-1 (e-book) 978-1-4020-5595-9 (e-book)
Published by Springer, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. www.springer.com
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TABLE OF CONTENTS
Preface
vii
Chapter 1, Law as Constitution I. Constitutionalism of the Ancients and of the Moderns I. 1. Ancient Constitutionalism I. 2. From Fundamental Law to Social Contract and Self-Institution I. 3. Modern Constitutionalism II. Constitutionalism and Legal Positivism II. 1. Law as Fact II. 2. Legislation and Sovereignty II. 3. The Rise of German Public Law II. 4. Legal Positivism and Constitutionalism III. From State Law to Constitutional State, or, from Herrschaft to “Discourse” III. 1. Normativity and Facticity III. 2. Normativism, Institutionalism, Decisionism III. 3. “Wille zur Verfassung”, Will of Constitution Chapter 2, Legal Argumentation and Concepts of Law I. Rhetoric and Practical Reason I. 1. Two Paradigms of Right Reasoning I. 2. Theoretical versus Practical Rationality II. Legal Reasoning Redeemed II. 1. Rehabilitation of Practical Reason: Topics II. 2. The “New Rhetoric” School II. 3. Philosophical Hermeneutics III. Contemporary Doctrines III. 1. Neil MacCormick’s Formalist Model III. 2. Dworkin’s Interpretive Turn III. 3. Discourse Theory
v
1 1 1 4 7 12 12 15 18 21 24 24 28 30 43 43 43 45 49 49 51 53 60 60 64 70
vi
TABLE OF CONTENTS
IV. Law as Discourse and Const