Proportionality in Lawmaking

In A. Daniel Oliver-Lalana (ed.), Conceptions and Misconceptions of Legislation. Springer Verlag. pp. 153-173 (2019)
  Copy   BIBTEX

Abstract

The judgment of proportionality—i.e. the weighing or balancing of two or more competing Legal principles—is often said to be the core of legal reasoning. One of the premises underlying such a contention is that judges adhere to a non-positivistic legal approach: when justifying their rulings, that is, they are certainly “bound by the Law”, but not as this is understood within Legal positivism. A non-positivistic conception of law entails the claim that judges interpreting and applying legal norms do combine, in fact, legal and moral reasoning. On the other hand, Constitutionalism, as a paradigm in law and jurisprudence, implies that a culture of justification extends to all public authorities, i.e. not only to the executive branch and the judiciary but also to legislatures. Thus, the sole fact that a parliament has been democratically elected is not enough to entirely satisfy its claim to Legitimacy—in other words, winning elections cannot be the only basis of legislative authority. Against this backdrop, the focus of this chapter is to explore the possibility of broadening the principle of proportionalityProportionality principle, as characterized by Robert Alexy, to legislative decisions. Additionally, and in connection with the non-positivistic legal approach just mentioned, the second part of the essay will highlight some misunderstandings about the study of lawmaking which one can find in the province of legal theory.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 90,616

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Three kinds of intention in lawmaking.Marcin Matczak - 2017 - Law and Philosophy 36 (6):651-674.
Proportionality and Compromises.Véronique Zanetti - 2020 - Journal of Moral Philosophy 17 (1):75-97.
An Empire of Light?: II: Learning and Lawmaking in Germany Today.Stefan Vogenauer - 2006 - Oxford Journal of Legal Studies 26 (4):627-663.
Legal reasoning and legal theory revisited.Fernando Atria - 1999 - Law and Philosophy 18 (5):537-577.
Legal Reasoning and Legal Theory Revisited.Fernando Atria - 1999 - Law and Philosophy 18 (5):537-577.
Kant’s Non-Positivistic Concept of Law.Robert Alexy - 2019 - Kantian Review 24 (4):497-512.
Trouble in Law's Empire: Rethinking Dworkin's Third Theory of Law.Kenneth Einar Himma - 2003 - Oxford Journal of Legal Studies 23 (3):345-377.

Analytics

Added to PP
2020-02-07

Downloads
0

6 months
0

Historical graph of downloads

Sorry, there are not enough data points to plot this chart.
How can I increase my downloads?

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references