‘Dethroning Politics’: Liberalism, Constitutionalism and Democracy in the Thought of F. A. Hayek

1994 ◽  
Vol 24 (4) ◽  
pp. 419-441 ◽  
Author(s):  
Richard Bellamy
Keyword(s):  
Separation Of Powers ◽  
Bill Of Rights ◽  
Popular Participation ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
The One ◽  
The Individual ◽  
Higher Law ◽  
The Relationship

The relationship between liberalism and democracy is notoriously paradoxical. On the one hand, the justification for democratic procedures most commonly rests on liberal assumptions. Standard liberal arguments for democracy range from the importance of consent due to the moral primacy of the individual, to the role of critical argument and the diversity of opinion for the discovery of truth. On the other hand, liberal institutional arrangements, such as the separation of powers and the rule of law, have frequently been interpreted as constraints upon democracy, albeit necessary ones if democracy is not to undermine itself. The paradox arises from the fact that liberalism provides a philosophical basis for regarding democracy as the only valid source of law whilst apparently appealing to some higher law in order to limit democracy itself. This paradox is embodied in the constitutions of most liberal democratic states. For generally these documents contain provisions – such as a bill of rights guaranteeing the freedoms of speech, assembly and association – designed to secure popular participation in the democratic process, alongside others – such as rights not obviously intrinsic to democratic decision making and mechanisms for judicial review – which seek to limit the power of democratic assemblies.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

The Myth of Judicial Independence

2020 ◽  
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Separation Of Powers ◽  
Material Point ◽  
The State ◽  
Theory And Practice ◽  
Home Office ◽  
Democratic Polity ◽  
The Individual ◽  
Relationship Of ◽  
The Relationship

This book on the criminal justice system is uniquely positioned to examine judicial claims to independence, the politics of the judiciary, the rule of law, and the role of the executive in the context of a democratic polity. The authors have mined the British government’s archival vaults to assemble records including official (previously classified) Home Office files and present a ground-breaking narrative. By tracking the relationship between senior judges and the Home Office from the end of the nineteenth century to the modern day, revelations concerning the politics of the judiciary and the separation of powers are unearthed. The book argues that the claims of the senior judiciary to be independent of the executive are invalidated by historical records and the theory and practice of the separation of powers (the ‘Westminster Model’) deeply flawed. Rather, at every material point, civil servants compromised the role of the senior judiciary’s decision-making. Moreover, with the passive endorsement of senior judges, the executive repeatedly misled Parliament as to the authorship and provenance of fundamental rules governing the relationship of the individual to the state in relation to police powers of arrest, detention, and questioning. The book also explores the past and continuing impact of all this to former colonial territories and traces the close liaison between key members of the senior judiciary and the state in reconfiguring the modern criminal process in a way which weakens defence lawyers, pressurizes defendants into pleading guilty, and undermines cardinal adversarial protections.

Courts and Judicial Review

2020 ◽  
pp. 720-746
Author(s):  
Li-Ann Thio
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Administrative State ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
Developmental States ◽  
Liberal Democratic ◽  
Rule Making

The legal culture, political context, and organization of any one national state is key to apprehending the role of courts and judicial review in upholding the rule of law and the administrative state. Constitutional principles like the separation of powers, basic rights, and governance priorities like efficiency will shape the scope, intensity, and grounds of judicial review, which actors are susceptible to it, and questions of standing. Different ideological communities place varying emphasis on these factors. Models of judicial review, based on the French special administrative courts or English common law courts of general jurisdiction, were first developed in Western liberal democracies. These have been influential exports beyond Europe, although susceptible to autochthonous adaptations informed by local culture and exigencies. This chapter examines the chief features of courts and judicial review in Western liberal democracies, where the function of judicial review has gone beyond ensuring legality and conformity of administrative processes to standards of substantive and procedural fairness, to include protecting fundamental rights and promoting participatory democracy in the rule-making process. It examines how judicial review operates, similarly or distinctly, under other government regimes beyond liberal democratic orders, within non-liberal developmental states with communitarian cultures and socialist legal systems.

scholarly journals The Role of Jurisprudence in the Interpretation of the Law and Its Conformity with the Realities in the Law of Iran and France

2016 ◽  
Vol 9 (8) ◽  
pp. 57
Author(s):  
Rima Amiraghdam ◽  
Gholam Ali Seifi Zeinab ◽  
Ali Zare ◽  
Mohsen Ghasemi
Keyword(s):  
Separation Of Powers ◽  
Common Law ◽  
Descriptive Analysis ◽  
Analysis Method ◽  
Iranian Law ◽  
General Rules ◽  
The Law ◽  
The One ◽  
The Relationship

The jurisprudence position difference in common law systems and the written law among the sources of law requires the study of the jurisprudence role in the interpretation of the law, and its adaptation to the realities of society. In Iranian law, jurisprudence means identical judgments of prosecutors from additional resources and commentary, and accepting the fact that, it could create a legal rule seems unlikely. In France, with the approval of the separation of powers and criticizing the classical doctrine, it seemed unlikely, the jurisprudence has a legislative role, however, such an idea has been expanded with all law branches and it seems to be a balance between resources related to legislate on the one hand and jurisprudence, on the other hand. Since, the rules express the general rules and it is impossible to predict the detail in the legislative practically, it is jurisprudence that could provide interpretations consistent with realities and social requirements of the law, in a complementary and commentary role. In this paper, the relationship between jurisprudence and interpretation of the law, especially in cases where we face with the need to interpret the law and the effectiveness of position on the interpretation of the law and its adaptation with the realities of society by jurisprudence will be discussed. These matters are examined with the descriptive analysis method that shows the importance of them in highlighting the role of jurisprudence in the legal system.

Ummah’s Rights or Human Rights? Universalism, Individualism, and Islamic Ethics in the Twenty-first Century

2010 ◽  
Vol 27 (3) ◽  
pp. 1-23 ◽  
Author(s):  
Marie-Luisa Frick
Keyword(s):  
Human Rights ◽  
First Century ◽  
The Other ◽  
Moral Code ◽  
Bill Of Rights ◽  
Islamic Ethics ◽  
Specific Content ◽  
Societal Needs ◽  
The One ◽  
The Individual

Against the background of the trend of Islamizing human rights on the one hand, as well as increasing skepticism about the compatibility of Islam and human rights on the other, I intend to analyze the potential of Islamic ethics to meet the requirements for vitalizing the idea of human rights. I will argue that the compatibility of Islam and human rights cannot be determined merely on the basis of comparing the specific content of the Islamic moral code(s) with the rights stipulated in the International Bill of Rights, but by scanning (different conceptions of) Islamic ethics for the two indispensable formal prerequisites of any human rights conception: the principle of universalism (i.e., normative equality) and individualism (i.e., the individual enjoyment of rights). In contrast to many contemporary (political) attempts to reconcile Islam and human rights due to urgent (global) societal needs, this contribution is solely committed to philosophical reasoning. Its guiding questions are “What are the conditions for deriving both universalism and individualism from Islamic ethics?” and “What axiological axioms have to be faded out or reorganized hierarchically in return?”

CHILD-PARENT RELATIONS AS A FACTOR IN THE FORMATION OF PROFESSIONAL PREFERENCES IN PEDAGOGICAL DYNASTIES

2020 ◽  
Vol 2 (4) ◽  
pp. 126-130
Author(s):  
N. V. SHAMANIN ◽  
Keyword(s):  
Professional Development ◽  
The Family ◽  
The Individual ◽  
Relationship Of ◽  
The Relationship ◽  
Parent Child Relationships ◽  
Professional Preferences ◽  
Parent Child

The article raises the issue of the relationship of parent-child relationships and professional preferences in pedagogical dynasties. Particular attention is paid to the role of the family in the professional development of the individual. It has been suggested that there is a relationship between parent-child relationships and professional preferences.

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

The Role of Normative Information in Judgments of Others

2019 ◽  
Author(s):  
Katherine H. Rogers
Keyword(s):  
Social Desirability ◽  
Interpersonal Perception ◽  
Future Research ◽  
Average Person ◽  
The Individual ◽  
The Relationship ◽  
Source Of Information

When forming impressions of an other’s personality, people often rely on information not directly related to the individual at hand. One source of information that can influence people’s impressions of others is the personality of the average person (i.e., normative profile). This relationship between the normative profile and an impression is called normative accuracy or normativity. In this chapter, you will learn about the average personality, why it is important, the relationship to social desirability and what it means to have a normative impression, as well as correlates and moderators of normativity. More broadly, you will learn about current research and views regarding the normative profile and normative impressions as well as concrete steps for incorporating this approach into your future research on interpersonal perception.

scholarly journals Factors affecting the organizational performance of manufacturing firms

2017 ◽  
Vol 9 ◽  
pp. 184797901771262 ◽  
Author(s):  
Ahmad Adnan Al-Tit
Keyword(s):  
Organizational Performance ◽  
Measurement Instrument ◽  
Manufacturing Firms ◽  
Factors Affecting ◽  
Mediating Role ◽  
Values And Beliefs ◽  
The Individual ◽  
The Impact ◽  
The Relationship

Numerous studies have been conducted to explore the individual effects of organizational culture (OC) and supply chain management (SCM) practices on organizational performance (OP) in different settings. The aim of this study is to investigate the impact of OC and SCM on OP. The sample of the study consisted of 93 manufacturing firms in Jordan. Data were collected from employees and managers from different divisions using a reliable and valid measurement instrument. The findings confirm that both OC and SCM practices significantly predict OP. The current study is significant in reliably testing the relationship between SCM practices and OP; however, it is necessary to consider cultural assumptions, values and beliefs as the impact of OC on OP is greater than the impact of SCM practices. Based on the results, future studies should consider the moderating and mediating role of OC on the relationship between SCM practices and OP.

Co-operation as a Conditional Strategy among Peers: Influence of Social Ecology and Kin Relations

1996 ◽  
Vol 19 (1) ◽  
pp. 39-52 ◽  
Author(s):  
Peter J. LaFreniere
Keyword(s):  
Peer Relations ◽  
Research Programme ◽  
Conditional Strategy ◽  
Social Unit ◽  
Kin Relations ◽  
Sources Of Variation ◽  
The Individual ◽  
Developmental Significance ◽  
The Relationship

The goal of this study is to analyse sources of variation, residing within the individual or within the relationship, in the ability to balance co-operative and competitive behaviours in a dyadic context. The ability to balance these two tendencies can be considered fundamental to successful adaptation within a social unit because co-operation may be essential in raising offspring, competing with other groups or in generating resources, whereas egoistic behaviour may protect the individual from exploitation or otherwise enhance reproductive success. Research is reviewed on the influence of social structures and relationships on co-operation in peer groups, and the origin and developmental significance of individual differences in co-operative abilities. Finally, a research programme investigating the conjunction of kin and peer relations is described, emphasising the role of affective synchrony, behavioural contingency, and reciprocity in shaping and sustaining co-operative behaviour as a conditional strategy.

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