Opis
What are legal negotiations? What is their structure? Is there one method of successful legal negotiation? Is it reasonable to settle disputes through negotiations? These are some of the questions which Jerzy Stelmach and Bartosz Brożek address in this volume. They posit that one could and should view the law as a negotiable phenomenon , thus dispensing with the constraints imposed by legal positivism. They claim further that, as there is no unique key to legal negotiations, one should acknowledge that there are different models of negotiating, and identify three such possible models: the argumentation, the topic-rhetorical and the economic. The models are described both from the theoretical perspective, as well as by providing catalogues of the principles of right, effi cacious and economically effi cient negotiating. Spis treściForeword 7 Chapter I. The Phenomenon of Negotiations 9 1. The negotiable law 12 The open-endedness of legal interpretation 14 What is a legal rule? 16 Negotiation triggers 17 Result 18 The claim to universality 20 Statistical justification 21 2. Three models for negotiations 23 The argumentation model 24 The topic-rhetorical model 25 The economic model 25 Criteria for distinguishing between negotiation models 27 3. The practice of negotiations 27 Five sources of misunderstanding 28 The existing models of negotiations 32 Chapter II. The Argumentation Model 37 1. Rightness as a negotiation criterion 40 The concept of rightness 40 The discursive approach to rightness 46 2. The top-down strategy 47 Normative deduction 47 The key moments of negotiations 49 3. Controversy over the argumentation model 52 The objections of positivists 52 The objections of laissez-faire advocates 54 The façade objection 57 The undecidability objection 58 4. Ten principles of right negotiations 60 Chapter III. The Topic-Rhetorical Model 68 1. Efficacy as the criterion of negotiations 72 The concept of efficacy 72 Particular audience 74 2. The bottom-up strategy 76 The key moments in negotiations 76 Negotiation eristic 81 3. Controversy over the topic-rhetorical model 87 Underdetermination 88 Amoralism 88 Psychologism 89 Eristic character 90 Eclecticism 90 Relativism 91 4. Ten principles of efficacious negotiating 92 Chapter IV. The Economic Model 100 1. Economic efficiency as the criterion of negotiations 102 The economic way of thinking 103 Law as an economic fact 104 Peculiarities of legal negotiations 109 2. The mixed strategy 112 Between top-down and bottom-up 112 Common and conflicting interests 115 The key moments of negotiations 117 3. Controversy over the economic model 121 Counter-factual character 121 Moral monstrousness 124 Limited applicability 126 The façade objection 127 4. Ten principles of efficient negotiations 128 Bibliography 137 Index of Names 141 Subject Index 147