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Legislative Argumentation and Democratic Legitimation

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Abstract:

I will argue that an adequate conception of democracy must be deliberative, that is, it must include not only formal, but also substantial elements in the sense that democratic decisions must aim at establishing solutions that give due consideration to all interests involved, that this implies a necessary relation between rational argumentation and democratic legitimation, and, consequently, that also legislative debate in parliament must comply with the requirements of rational argumentation. However, it is unable to do so for structural reasons embedded in the political system. This leads to some conclusions for the institutional design of the democratic constitutional state, and allows to understand the democratic function of constitutional review.

Keywords: ARGUMENTATION; CONSTITUTIONALISM; DEMOCRACY; PARLIAMENT; RATIONALITY

Document Type: Research Article

Publication date: May 1, 2010

More about this publication?
  • 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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