[Springer]
Kategoria: Książki / Literatura obcojęzyczna
principles has been a focus of legal theory since
Dworkin, there has yet to be a serious systematic study of what
legal principles are, where they come from, how they are
identified,...
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This book intends to help understand and apply principles and rules
better. Its target is to keep the distinction between principles
and rules whereas structuring it on different foundations than
those jurisprudence ordinarily employs. The first object of
investigation is the phenomenon of interpretation in Law in order
to understand that the classification of certain normative species
as either principles or rules depends in the first place on
axiological connections that are not ready prior to the
interpretation process that unveils them. Then, a definition of
principles is proposed, aiming to understand what their unique
characteristics are when compared to other norms of the legal
order. Thirdly, the conditions for the application of principles
and rules are examined, which are the normative applicative
postulates. It will be shown, on one hand, that principles not only
explicit values, but also set forth precise species of behaviors,
though indirectly; on the other hand, the creation of conducts by
rules is also to be weighed, even though the behavior set forth in
advance may be overcome, depending on the accomplishment of a few
requirements. That will surpass both the mere praise of values,
which does not create behaviors, and the automatic application of
rules. A model is proposed to explain the normative species, which
includes structured weighing on the application process while
encompassing substantive criteria of justice in its argument,
through the analytical reconstruction of the concrete use of
normative postulates, especially those of reasonableness and
proportionality. All of that is done with a focus on the ability of
intersubjective control of the argumentation, which often
degenerates into capricious decisionism.§"Although there are books
about legal rules, and although the role of legal principles has
been a focus of legal theory since Dworkin, there has yet to be a
serious systematic study of what legal principles are, where they
come from, how they are identified, and how precisely they
intersect with other sources in legal argument and legal
decision-making. Professor Avila's much-needed book fills this gap
with rigor, depth, and creativity, and it should become essential
reading for anyone interested in legal reasoning and legal
argumentation." §Frederick Schauer, John F Kennedy School of
Government, Harvard University, USA This book examines the
distinction between principles and rules so that they can be better
understood and applied. It structures the distinction between
principles and rules on different foundations than those
jurisprudence ordinarily employs. It also proposes a new model to
explain the normative species, which includes structured weighing
on the application process while encompassing substantive criteria
of justice in its argument.
