The Making of Constitutional Democracy: From Creation to Application of Law (Law and Practical Reason) - Softcover

Paolo Sandro

Softcover

ISBN 10: 1509955216 ISBN 13: 9781509955213

Publisher: Hart Publishing, 2023

Synopsis

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 the 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.

About this title

About the Author

Paolo Sandro is Lecturer in Law at the University of Leeds, UK.

Edition details

• Publisher: Hart Publishing
• Publication date: 2023
• Language: English
• ISBN 10: 1509955216
• ISBN 13: 9781509955213
• Binding: Paperback
• Number of pages: 416