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.
Foreword 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
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