Practical Reason, Law-making Process and Democracy: On the Fields of Legislative Argumentation

Abstract

Legislative argumentation, as the scientific approach to law-making, is based on a certain way of understanding the relationships between politics and law, where politics finds its legitimacy in procedures, but also and finally in constitutional-moral values. In fact, from a meta-theoretical analysis it is possible to explain the point or aspect that distinguishes the very different approaches to a law-making science: an instrumental or consequentialist notion of rationality (minimalist approach) or a more complex notion, open to principles and values and linked to the studies on practical reasoning (maximalist approach). Lastly, the article shows the main differences between legislative and judicial argumentation in order to determine to what extent the contributions from the standard legal reasoning theory are applicable to the legislation, and to what extent other disciplines, such as political science, economics or sociology, are relevant in legislative argumentation.