憲政的哲學基礎

內(nèi)容概要

　　“劍橋哲學和法律研究叢書”定期推出一些專門合作而成的著作，它們構成一個小的系列，討論的是在當代法律哲學中具有中心地位的關鍵性問題?！秳蛘軐W和法律研究叢書：憲政的哲學基礎（影印本）》是這一系列的第二本?！　≡诒緯?，一群卓爾不凡的法律理論家探討了憲政問題，他們把這樣一類基本的問題表述為：為什么有憲法？我們何以知道一個國家憲法的真切含義？憲法應該如何加以解釋？為什么一代人應該體察先輩制定的憲法的約束？　　在哲學、法律、政治科學和國際關系研究領域，有一些人對于是否在沒有憲法的國家引入憲法，引入什么類型的憲法，以及誰會介入憲法解釋方面的爭論這類問題感興趣，對于他們來說，本書尤為重要。

書籍目錄

List of ContributorsIntroductionLARRY ALEXANDER1 American ConstitutionalismRICHARD S. KAY2 Constitutional AuthorshipFRANK I. MICHELMAN3 What is "the Constitution"?（and Other Fundamental Questions）MICHAEL J. PERRY4 On the Authority and Interpretation of Constitutions：Some PreliminariesJOSEPH RAZ5 Legitimacy and InterpretationJED RUBENFELD6 The Domain of Constitutional JusticeLAWRENCE SAGER7 Recommitment and DisagreementJEREMY WALDRONIndex

章節(jié)摘錄

　　If this is all that is meant， we can still speak comfortably of limitations effected solely by the preexisting rules. The subsequent interpreters， in the manner discussed， weigh the historical evidence and decide whether the scope of the rule does or does not cover the challenged instance. But it is sometimes suggested that， at least sometimes， constitution-makers intended the constitutional rules to be "indeterminate" so that， in applying them， oppo- site results might be equally correct. Take， again as an example， the constitutional rule prohibiting the infliction of "cruel" punishment. The view of constitutional interpretation sketched earlier supposes that the underlying intentions of the rule-makers define a category of action. A particular action-say， the imposition of solitary confinement - is or is not witling that category.　　Two judges， each honestly attempting to apply the intended meaning， may disagree on that question， but each will suppose that only one of them can be right. The position under consideration， on the other hand， might hold that the constitution-makers intended that the question of whether the rule did or did not apply in a given case should not be decided until the question actually arose and that， when it did arise， it should be determined （within certain constraints） by the judges at the time， on the basis of factors not identified by the Constitution. In that case， neither of the two disagreeing judges would be right or wrong with respect to the correct application of the rule as intended by its enactors. In that sense， at least， there is no such thing as a "correct" application.　　To the extent that this is an accurate deception of constitutional rules， it is subversive of the goals of constitutionalism spelled out earlier. The limits of govemmental power in this situation are necessarily defined on the occasion， not imposed by preexisting rules. State decision-making in tills kind of regime will not， it is true， be just the same as it would be were the political departments subject to no constitutional constraint. But neither will it exhibit the special values of the rule of law discussed in the preceding section. 　　……

編輯推薦

　　This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly with in　Cambridge Studies in Philosophy and Law.　　A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted?　　Why should one generation feel bound by the constitution of an earlier one?　　The volume will be of particular importance to those in philosophy， law， political Science and international relations interested in whether and what kinds of constitutions should be adopted in countries without them， and involved in debates about constitutional interpretation.　　Contributors：Larry Alexander， Richard S. Kay， Frank I. Michelman， Michael J. Perry， Joseph Raz， Jed Rubenfeld， Lawrence Sager， Jeremy Waldron

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