The art of legal negotiations

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, efficacious and economically efficient negotiating.

Foreword str. 7 Chapter I. The Phenomenon of Negotiations str. 9 1. The negotiable law str. 12 The open-endedness of legal interpretation str. 14 What is a legal rule? str. 16 Negotiation triggers str. 17 Result str. 18 The claim to universality str. 20 Statistical justification str. 21 2. Three models for negotiations str. 23 The argumentation model str. 24 The topic-rhetorical model str. 25 The economic model str. 25 Criteria for distinguishing between negotiation models str. 27 3. The practice of negotiations str. 27 Five sources of misunderstanding str. 28 The existing models of negotiations str. 32 Chapter II. The Argumentation Model str. 37 1. Rightness as a negotiation criterion str. 40 The concept of rightness str. 40 The discursive approach to rightness str. 46 2. The top-down strategy str. 47 Normative deduction str. 47 The key moments of negotiations str. 49 3. Controversy over the argumentation model str. 52 The objections of positivists str. 52 The objections of laissez-faire advocates str. 54 The façade objection str. 57 The undecidability objection str. 58 4. Ten principles of right negotiations str. 60 Chapter III. The Topic-Rhetorical Model str. 68 1. Efficacy as the criterion of negotiations str. 72 The concept of efficacy str. 72 Particular audience str. 74 2. The bottom-up strategy str. 76 The key moments in negotiations str. 76 Negotiation eristic str. 81 3. Controversy over the topic-rhetorical model str. 87 Underdetermination str. 88 Amoralism str. 88 Psychologism str. 89 Eristic character str. 90 Eclecticism str. 90 Relativism str. 91 4. Ten principles of efficacious negotiating str. 92 Chapter IV. The Economic Model str. 100 1. Economic efficiency as the criterion of negotiations str. 102 The economic way of thinking str. 103 Law as an economic fact str. 104 Peculiarities of legal negotiations str. 109 2. The mixed strategy str. 112 Between top-down and bottom-up str. 112 Common and conflicting interests str. 115 The key moments of negotiations str. 117 3. Controversy over the economic model str. 121 Counter-factual character str. 121 Moral monstrousness str. 124 Limited applicability str. 126 The façade objection str. 127 4. Ten principles of efficient negotiations str. 128 Bibliography str. 137 Index of Names str. 141 Subject Index str. 147