Legal Rules, Moral Norms and Democratic Principles

Description

The book tackles significant problems that each historian of law faces in the light of present decline of philosophical, ethical and ideological canons in the overall context of western civilization. The issues discussed in the book manifest themselves in the question whether the «democratic turn» is a real or just a virtue one. Democracy generally means governance by the people – but who are the people? What kind of governance by the people can be claimed as democratic – all of the various types that exist or only a single, chosen one? What – if any – is the normative issue of such a governance? Democracy, after all, is not a simple descriptive model of governance; it is deeply rooted in our preferences and hence normative patterns of conduct, which are not yet to be understood as the norm but rather as founding principles. Democracy is a thoroughly normative model. It is always as constructed and uttered in the picture of life at the same time. Cover Contents Preface Part I: Moral and Legal Discourse in a Constitutional Democratic State Postmetaphysical Approach to Moral Autonomy and the Justification of the Thesis of the Necessary Relations between the Legal and Moral Discourse (Karolina M. Cern & Bartosz Wojciechowski) Introduction 1. The structure of the issue of discourse theory and its Kantian foundations 2. Transcendental-pragmatic / universal-pragmatic justification of discourse ethics 2.1. Principium of universalization 2.2. The ideal conditions of communication generated by the rules of discourse 2.3. The final justification of discourse rules 3. Application of discourse ethics Conclusions Commands and Claims (Marco Antonio Oliveira de Azevedo) Introduction Acknowledgements The Autonomy from Morality as a Moral Claim: On Some Paradoxes of Legal Positivism (Maciej Pichlak) Introduction 1. Why is the problem of autonomy important? 2. The concept of autonomy 3. Autonomy, authority and the function of law 4. Two points of view on the point of law 5. Law and morality: the paradox comes out 6. Law and morality: the paradox domesticated? Legal Rules, Moral Norms and Arbitrariness (Martin Škop) 1. The arbitrariness of rules 2. The myth of rules 3. The value coherence of moral norms and legal rules 4. Recognition Between Rationality (Habermas) and Sympathy (Rorty): two Pragmatic Perspectives on Human Rights (Barbara Weber) 1. Introduction 2. Jürgen Habermas: Towards a Cultivation of Human Rights through Communicative Rationality 2.1. Facticity and Value 2.2. The Coherence between the Constitutional State and Democracy 3. Richard Rorty: Towards a Cultivation of Human Rights through Sympathy 3.1. Who or what is a Human? 3.2. The Substitution of Sympathy for Reason 4. Habermas and Rorty in Dialogue about Truth, Justification and Solidarity 4.1. Transatlantic Convergences between Phenomenology and the Philosophy of Language 4.2. Political Realist versus Idealist Dreamer? 5. Rationality and Sympathy between Incompatibility and Complementarity Towards a New Theoryof Hard Cases (Sebastian Sykuna & Jerzy Zajadło) Citizens of a Lesser God – Religious Minorities and the Legal Discourse of Multi-Cultural Democracies: the Case of Canada (Massimo Leone) 1. Global socio-cultural changes and management of public space: reasons for a comparison 2. Focus, method, and purposes of the analysis 3. Cultural diversity and urban planning in Canada 4. ‘Making Muslim space’ in the Great Toronto Area 5. Planning places of worship in the GTA: current procedures and possibilities of improvement 6. Common contentious areas 7. Conclusions: the Canadian lesson Part II: Rights and Citizenship in the Legal Practice How Dangerous Can the Sterilized Needle Be? Torture, Terrorism, and the Self-Refutation of the Liberal-Democratic State (Marta Soniewicka) Introduction: intellectually dirty hands? 1. Torture and terrorism – problem with definitions and applications 1.1. Torture 1.2. Terrorism 1.3. Torture and terrorism – common features 2. The ticking time bomb scenario and what is wrong with it 2.1. Premises of the scenario – unrealistic realism 2.2. Preemptive justice and its discontents 2.3. Taking utilitarian argumentation seriously – the problem of the calculation of costs and benefits 3. Can it ever be right to do wrong? – life-saving torture and the argument from necessity (Dirty Harry Case) Conclusions The Moral and Legal Status of Animals: from Perpetrators of Wrongs to Victims of Abuses (Paul Bouissac) 1. Introduction: animal classifications 2. Animal agencies: the legal context 3. Animals as moral agencies 4. A cultural paradigm shift: animals as non-human persons Public Hearing: on the Dangers of Adversarial Participation (Piotr W. Juchacz) 1. Introduction 1.1. On the importance of civic participation 1.2. The idea of collaborative participation 1.3. The idea of adversarial participation 1.4. Public hearing as the institution of public consultations 2. The analysis of the second phase of the process of public hearing – public hearings during the parliamentary committee 2.1. Three phases of the process of public hearing 2.2. The basic principles of the second phase of the public hearing 2.3. False hopes? 2.4. Reasonable doubts and the real threats 2.5. Discourse structure that dominates during the public hearing 2.6. Three circles of participation and influence: the lack of equal access for the participants in public hearings to the legislative process 2.7. Political Context 2.8. Four conditions of an effective public hearing 3. Summary – advantages and drawbacks of the public hearing Law in/as Literature as an Alternative Humanistic Discourse - The Unavoidable Resistance to Legal Scientific Pragmatism or the Fertile Promise of a Communitas Without Law? (José Manuel Aroso Linhares) Legal Certainty and Judicial Discretion in the Statutory Legal Order (Leszek Leszczyński) 1. Legal certainty 1.1. Concept of legal certainty (in general) 1.2. Legal certainty in the implementation of law 2. Judicial discretion 2.1. The essence and the sources 2.2. The legislative approach to discretion 2.3. The point of the legislator 2.4. Discretion and uniformity of judicial practice 3. Judicial discretion and legal certainty Confucianism and the Localization of Chinese Political Democracy (Lin Yuchuan) The Crisis of Confucianism in Modern China Examining the Modern Transformation of Confucianism The Institutionalization of Confucianism and its Problems The Localization of China’s Political Democracy Influence of Internationalisms on Communicativeness of a Legal Discourse (Agnieszka Choduń) Introduction 1. Influence on Polish legal terminology 2. Universalism or separatism APPENDIX Legal Rules in the Name of Democracy and Democracy in the Name of Legal Rules: Parallel Deaths of Socrates and Julius Caesar (edited by Romina Amicolo) 1. The death of Socrates: legal rules in the name of democracy 2. The murder of Julius Caesar: democracy in the name of legal rules 3. Parallel convergences between the deaths of Socrates and Julius Caesar 4. Legal rules in the name of democracy: Socrates and the crisis of the Athenian democracy 5. Socrates appears in front of the Court: the accusations 6. Socrates ”head of Janus” in the crisis of the Athenian democracy 7. The democratic principles: action and discourse in the experience of the polis before Socrates 8. The worse evil for Socrates: his renunciation of philosophy and legal rules 9. The Socrates’ death as the end of the Athenian democracy 10. Legal rules talk to Socrates 11. Democracy in the name of legal rules: Julius Caesar and the democratic nugde 12. Caesar between the republic and the tyranny 13. Honors for Caesar: the scene of the Lupercalia 14. The Republican defence of Legal Rules: Caesar abusus dominatione iure caesus 15. The democratic dictator: the evolution of legal rules in the Caesar’s life and Roman politics