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Vol 21 No 10 Oct/Nov 2016

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Ratio and Voluntas: The Tension Between Reason and Will in Law


ISBN13: 9781409420132
Published: December 2010
Publisher: Ashgate Publishing Ltd
Country of Publication: UK
Format: Hardback
Price: £95.00



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From the ancient beginnings of Western legal tradition, law has been conceived as traversed by a fundamental tension between power (will) and reason.

This volume examines the tension between these two poles, 'ratio and voluntas' in modern law. Part I focuses on three instructive phases in the history of the law's ratio. Part II examines the way legal scholarship, especially doctrinal research (legal dogmatics), can and should contribute to the law's coherence. Part III explores the role of constitutional law in managing the tension between law's voluntas and ratio.

The final chapter discusses the implications the growth of transnational law may have on the relationship between ratio and voluntas. The study builds on the views of the distinctive features of the ideal-typical mature modern legal system as presented in the author's previous work, "Critical Legal Positivism" (Ashgate 2002).

Subjects:
Jurisprudence
Contents:
Preface
Prologue: 2 challengers of normative legal scholarship
Part I The Historical and Cultural Dependence of the Law's Ratio
The traditions of law
The heritage of the historical school
The critique of conceptualism.
Part II Legal Scholarship and the Coherence of Law
The law's system - from total to local coherence
Concepts, principles, and theories.
Part III Ratio and Voluntas in Constitutional Law
The rule of Law and the rechtsstaat
Gouvernement des juges?
Epilogue: The law's farewell to the nation state?
Index.