Suchergebnisse

Acknowledging that a certain "rule of law" does not necessarily advance freedom, it is contended that the content & administration of law do affect human freedom. It is asserted that freedom is not located in the legislation, constitutional ideology, or common law of a given political system. Using Cicero's aphoristic contention that slavery is necessary for freedom, it is argued that freedom in law is incompatible with absolute freedom; however, freedom is contingent on certain constraining conditions. Consequently, freedom according to the law is embedded in the assertion that law & freedom are capable of being intertwined. Three conclusions from an analysis of the delimitation of law & freedom on an international level are advanced (eg, law is dependent on the prior exercise of freedom). It is concluded that law is most easily located in judicial explanations of legal principles. 20 References. J. W. Parker

The author of this chapter argues that Oakeshott's lack of a sustained argument about law does not preclude the construction of his view of law & the state from dispersed sources. In "On Human Conduct" & "The Rule of Law," Oakeshott presents two distinct perspectives on law: natural law verses legal positivism, & limitation on law as a manifestation of sovereign authority. The conceptualization of the modern state as an association of those who acknowledge the same sovereign authority to give shared law is imperfectly specified, posing the question of the placement of the state as subject to the law or maintaining an extra-legal place. On the epistemological level, law requires knowledge of the law. Although natural law contains natural justice or natural reason, it cannot satisfy this epistemic requirement. Legal order also has this dualistic character. Oakeshott interpretation of a Hobbesian treatment of the law limits the existence of civil society to two conditions: acknowledgement of the authority of a sovereign government & government rules by the law. But, Oakeshott's view of the state as an ambiguous association reveals an opening for the superimposition of purposive entities in which the rule of law has no part. 13 References. J. Harwell

Under the Soviet regime, jurisprudence theory included no reference to the concept of a law-governed state, which would have supported the bourgeois notion that law would control political power. This is not surprising since Marxist-Leninist doctrine viewed law as "the will of the ruling class," serving the interests of those in power. Mikhail Gorbachev's perestroika policy brought the first change to the traditional Soviet concept of law, & the 1990-1991 revolution that toppled Soviet rule furthered the process of change in law & other areas of sociopolitical life. The history of law in the Soviet era & its development since then are recounted. It is concluded that Russia still lacks a rational legal system such as those enjoyed in democratic states, though there has been much improvement. A law-governed state goes hand in hand with a philosophy of public life that fosters freedom rather than paternalism, a philosophy that does not exist under the Putin regime. J. Stanton

Is the European Union (EU) a state, an international organ, or a new example of "postsovereign" power & administration? An attempt to determine the EU's role is made through examination of community law for its relation to European integration. The community legal system, including recent adaptations & cases, is reviewed. There is exploration of legal pluralism & the development of the relationship between community law & the European Court of Justice (ECJ), along with the roles of member state administrators, institutions, European law, community law, enlargement, & social context. The ECJ's position regarding sexual equality is viewed. Consideration of community law & regulatory order are heightened by citation of the Cassis de Dijon case of 1979. Debate over the EU's role regarding maintenance of order & security is elucidated. Development of the Justice & Home Affairs branch of the EU is detailed, considering its jurisdiction, policies, conflicts, & potential. 18 References. M. C. Leary