OXFORD UNIVERSITY PRESS

Constitutionalism and the Paradox of Principles and Rules: Between the Hydra and Hercules

ISBN : 9780192898746

参考価格(税込): 
¥16,368
著者: 
Marcelo Neves
ページ
208 ページ
フォーマット
Hardcover
サイズ
156 x 234 mm
刊行日
2021年04月
シリーズ
Oxford Constitutional Theory
メール送信
印刷

This title offers a unique approach to constitutionalism, focusing on the paradoxical relationship between principles and rules from the perspective of systems theory. It presents a critical counterpoint to Ronald Dworkin's principle-based theory, and in particular to Robert Alexy's idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least 'satisficing' balancing, considering the precariousness of legal rationality. The book also reverses Dworkin's metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, and pointing out their relationship of complementarity and tension with rules. Finally, it offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former refers primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second refers primarily to the closure and consistency of legal system and thus to formal argumentation.

目次: 

Introduction
1 From Classic Distinctions Between Legal Principles and Rules...
2 ...Through the Still Dominant Models of Division Between Constitutional Principles and Rules...
3 ...To the Search of another Model of Difference Between Constitutional Principles and Rules
4 The Use and Abuse of Principles: From Doctrine to Practice in Brazilian Constitutional Law
Final Comment: Judge Iolaus

著者について: 

Marcelo Neves received his LLB and LLM in Brazil, and in 1991 was awarded the Dr. Jur. degree at the University of Bremen Law School, in Germany (Grant of DAAD). In 2000 he was awarded the 'Habilitation' (postdoctoral degree) at the University of Fribourg, Switzerland. Marcelo is currently Full Professor of Public Law at the University of Brasilia, in Brazil, appointed as of July 2011. Beyond several visiting appointments at German universities, he was also a visiting scholar at the University of Oxford; Yale Law School; University of Glasgow; LSE; European University Institute (Florence); Stellenbosch Institute for Advanced Studies (South Africa).

このページに掲載の「参考価格」は日本国内における希望小売価格です。当ウェブサイトでのご購入に対して特別価格が適用される場合、販売価格は「割引価格」として表示されます。なお、価格は予告なく変更されることがございますので、あらかじめご了承ください。