How Rational is Rational Lawmaking?
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How Rational is Rational Lawmaking? book
Wojciech Cyrul* Introduction Traditionally, two basic approaches to lawmaking can be distinguished in the Philosophy of Law. The first, known here as the transcendental approach, limits the role of the lawmaker solely to discovering, recognizing and recording rules and norms that exist independently of the lawmaker. The second approach, known as voluntarism, assumes that lawmaking is an expression of the will of the lawmaker (Wróblewski, 1985). Such a general distinction explains only the second component in the expression “rational lawmaking”, i.e. it provides an understanding of lawmaking, but says nothing about rationality as a concept that would provide a comprehensive distinction between the rational law making process and the non-rational. Obviously the meta-question arises of whether a concept of rational lawmaking adopted by a specific system is actually rational in itself. This compels us to reflect upon the problem of which models of rational lawmaking lie at the basis of the contemporary praxiologically-oriented theory of rational lawmaking and how modern lawmaking processes have absorbed different theories of rationality. Such an approach provides us with a clear view of the ideological function of rationality in lawmaking discourse.