Overview
- Discusses the virtues and problems of the constitutionalisation of rational lawmaking
- Analyzes the judicial review of the quality of the legislative method
- Focuses on the German constitutional case-law as a highly developed example of the judicial control
- Includes supplementary material: sn.pub/extras
Part of the book series: Legisprudence Library (LEGIS, volume 3)
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Table of contents (15 chapters)
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Front Matter
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Judicial Review, Democracy, and Legislation Theory
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Front Matter
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Judicial Review of Legislative Rationality and Justification
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Front Matter
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Judicial Review of Legislative Consistency and Systematicity
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Front Matter
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Judicial Review of Legislative Facts and Impacts
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Front Matter
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Legislative Balancing, Proportionality, and Process Review
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Front Matter
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Keywords
- Coherence Requirement
- Consistent Legislation
- Constitutional Duties to Justify Legislation
- Constitutional Review
- Due Process of Legislation
- Freedom, Equality and Democracy
- Judicial Review of Legislative Rationality
- Judicial Review of Legislative Rationality and Justification
- Post-legislative Care
- Proportionality and Balancing
- Rational Lawmaking
About this book
This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court´s approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers’ duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together legislation experts and public law scholars to elaborate on ‘legisprudence under review’, this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation.
Editors and Affiliations
About the editors
A. Daniel Oliver-Lalana, Dr. iur., LL.M. (Genova), is currently a Ramón y Cajal Fellow at the University of Zaragoza’s Law Faculty, where he lectures on jurisprudence. His works include a book on legal communication (Legitimidad a través de la comunicación, 2011), a socio-legal study on data protection law (Derecho y cultura de protección de datos, 2012, with J.F. Muñoz) and The Rationality and Justification of Legislation (2013, co-edited with L. Wintgens).
Bibliographic Information
Book Title: Rational Lawmaking under Review
Book Subtitle: Legisprudence According to the German Federal Constitutional Court
Editors: Klaus Meßerschmidt , A. Daniel Oliver-Lalana
Series Title: Legisprudence Library
DOI: https://doi.org/10.1007/978-3-319-33217-8
Publisher: Springer Cham
eBook Packages: Law and Criminology, Law and Criminology (R0)
Copyright Information: Springer International Publishing Switzerland 2016
Hardcover ISBN: 978-3-319-33215-4Published: 03 August 2016
Softcover ISBN: 978-3-319-81457-5Published: 30 May 2018
eBook ISBN: 978-3-319-33217-8Published: 26 July 2016
Series ISSN: 2213-2813
Series E-ISSN: 2213-2856
Edition Number: 1
Number of Pages: VIII, 412
Number of Illustrations: 1 b/w illustrations
Topics: Theories of Law, Philosophy of Law, Legal History, Political Theory, Philosophy of Law, Constitutional Law