Home >> Legisprudence, Volume 2, Number 3

Symbolic Legislation and the Need for Legislative Jurisprudence: The Example of the Federal Republic of Germany

Author: Siehr, Angelika

Source: Legisprudence, Volume 2, Number 3, 2008 , pp. 271-305(35)

Publisher: Hart Publishing

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Abstract:

As the example of symbolic statutes illustrates there is a tension between the claim of law to rationality, inherent in the idea of self-government of the autonomous subject, and the dynamics of the democratic process that uses statutes as a political instrument. Legislative theory seeks to lower this tension and to enhance the standards of rationality in the law-making process. Four different approaches within legislative theory are disentangled and examined, mainly against the background of the German Constitution. It becomes obvious, that especially the potential of the legal theory approach has not yet been fully explored. Also in view of recent developments we need a further elaboration of principles that provide some guidance for the internal legislative process and a legislative theory that conceives itself as a general theory about regulation, in short: We need the strengthening of legislative jurisprudence.
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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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