Legal Rules, Moral Norms And Democratic Principles (dia-logos)

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 1 Contents 5 Preface 7 Part I: Moral and Legal Discourse in a Constitutional Democratic State 9 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) 11 Introduction 11 1. The structure of the issue of discourse theory and its Kantian foundations 15 2. Transcendental-pragmatic / universal-pragmatic justification of discourse ethics 24 2.1. Principium of universalization 24 2.2. The ideal conditions of communication generated by the rules of discourse 29 2.3. The final justification of discourse rules 33 3. Application of discourse ethics 36 Conclusions 42 Commands and Claims (Marco Antonio Oliveira de Azevedo) 45 Introduction 45 Acknowledgements 70 The Autonomy from Morality as a Moral Claim: On Some Paradoxes of Legal Positivism (Maciej Pichlak) 73 Introduction 73 1. Why is the problem of autonomy important? 75 2. The concept of autonomy 77 3. Autonomy, authority and the function of law 80 4. Two points of view on the point of law 84 5. Law and morality: the paradox comes out 87 6. Law and morality: the paradox domesticated? 90 Legal Rules, Moral Norms and Arbitrariness (Martin Škop) 95 1. The arbitrariness of rules 96 2. The myth of rules 101 3. The value coherence of moral norms and legal rules 104 4. Recognition 107 Between Rationality (Habermas) and Sympathy (Rorty): two Pragmatic Perspectives on Human Rights (Barbara Weber) 111 1. Introduction 111 2. Jürgen Habermas: Towards a Cultivation of Human Rights through Communicative Rationality 113 2.1. Facticity and Value 113 2.2. The Coherence between the Constitutional State and Democracy 114 3. Richard Rorty: Towards a Cultivation of Human Rights through Sympathy 117 3.1. Who or what is a Human? 117 3.2. The Substitution of Sympathy for Reason 119 4. Habermas and Rorty in Dialogue about Truth, Justification and Solidarity 120 4.1. Transatlantic Convergences between Phenomenology and the Philosophy of Language 120 4.2. Political Realist versus Idealist Dreamer? 125 5. Rationality and Sympathy between Incompatibility and Complementarity 128 Towards a New Theoryof Hard Cases (Sebastian Sykuna & Jerzy Zajadło) 133 Citizens of a Lesser God – Religious Minorities and the Legal Discourse of Multi-Cultural Democracies: the Case of Canada (Massimo Leone) 163 1. Global socio-cultural changes and management of public space: reasons for a comparison 164 2. Focus, method, and purposes of the analysis 165 3. Cultural diversity and urban planning in Canada 169 4. ‘Making Muslim space’ in the Great Toronto Area 170 5. Planning places of worship in the GTA: current procedures and possibilities of improvement 172 6. Common contentious areas 175 7. Conclusions: the Canadian lesson 179 Part II: Rights and Citizenship in the Legal Practice 183 How Dangerous Can the Sterilized Needle Be? Torture, Terrorism, and the Self-Refutation of the Liberal-Democratic State (Marta Soniewicka) 185 Introduction: intellectually dirty hands? 186 1. Torture and terrorism – problem with definitions and applications 187 1.1. Torture 187 1.2. Terrorism 193 1.3. Torture and terrorism – common features 196 2. The ticking time bomb scenario and what is wrong with it 196 2.1. Premises of the scenario – unrealistic realism 197 2.2. Preemptive justice and its discontents 200 2.3. Taking utilitarian argumentation seriously – the problem of the calculation of costs and benefits 201 3. Can it ever be right to do wrong? – life-saving torture and the argument from necessity (Dirty Harry Case) 205 Conclusions 211 The Moral and Legal Status of Animals: from Perpetrators of Wrongs to Victims of Abuses (Paul Bouissac) 213 1. Introduction: animal classifications 213 2. Animal agencies: the legal context 215 3. Animals as moral agencies 217 4. A cultural paradigm shift: animals as non-human persons 220 Public Hearing: on the Dangers of Adversarial Participation (Piotr W. Juchacz) 225 1. Introduction 225 1.1. On the importance of civic participation 225 1.2. The idea of collaborative participation 226 1.3. The idea of adversarial participation 229 1.4. Public hearing as the institution of public consultations 230 2. The analysis of the second phase of the process of public hearing – public hearings during the parliamentary committee 231 2.1. Three phases of the process of public hearing 231 2.2. The basic principles of the second phase of the public hearing 233 2.3. False hopes? 234 2.4. Reasonable doubts and the real threats 234 2.5. Discourse structure that dominates during the public hearing 238 2.6. Three circles of participation and influence: the lack of equal access for the participants in public hearings to the legislative process 245 2.7. Political Context 250 2.8. Four conditions of an effective public hearing 251 3. Summary – advantages and drawbacks of the public hearing 253 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) 257 Legal Certainty and Judicial Discretion in the Statutory Legal Order (Leszek Leszczyński) 283 1. Legal certainty 283 1.1. Concept of legal certainty (in general) 283 1.2. Legal certainty in the implementation of law 285 2. Judicial discretion 287 2.1. The essence and the sources 287 2.2. The legislative approach to discretion 289 2.3. The point of the legislator 291 2.4. Discretion and uniformity of judicial practice 294 3. Judicial discretion and legal certainty 297 Confucianism and the Localization of Chinese Political Democracy (Lin Yuchuan) 299 The Crisis of Confucianism in Modern China 299 Examining the Modern Transformation of Confucianism 302 The Institutionalization of Confucianism and its Problems 307 The Localization of China’s Political Democracy 312 Influence of Internationalisms on Communicativeness of a Legal Discourse (Agnieszka Choduń) 319 Introduction 319 1. Influence on Polish legal terminology 320 2. Universalism or separatism 328 APPENDIX 329 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) 329 1. The death of Socrates: legal rules in the name of democracy 329 2. The murder of Julius Caesar: democracy in the name of legal rules 331 3. Parallel convergences between the deaths of Socrates and Julius Caesar 332 4. Legal rules in the name of democracy: Socrates and the crisis of the Athenian democracy 333 5. Socrates appears in front of the Court: the accusations 333 6. Socrates ”head of Janus” in the crisis of the Athenian democracy 334 7. The democratic principles: action and discourse in the experience of the polis before Socrates 336 8. The worse evil for Socrates: his renunciation of philosophy and legal rules 338 9. The Socrates’ death as the end of the Athenian democracy 339 10. Legal rules talk to Socrates 343 11. Democracy in the name of legal rules: Julius Caesar and the democratic nugde 346 12. Caesar between the republic and the tyranny 346 13. Honors for Caesar: the scene of the Lupercalia 348 14. The Republican defence of Legal Rules: Caesar abusus dominatione iure caesus 352 15. The democratic dictator: the evolution of legal rules in the Caesar’s life and Roman politics 358