Rationalism and the Rule of Law: Michael Oakeshott and the American Constitutional Order

2015 ◽  
Vol 4 (4) ◽  
pp. 632-652
Author(s):  
Elizabeth Corey
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Michael Oakeshott

scholarly journals Uma teoria conservadora de democracia? Aportes para um diálogo entre Michael Oakeshott e Joseph Schumpeter / A conservative theory of democracy? Contributions to a dialogue between Michael Oakeshott and Joseph Schumpeter

2016 ◽  
Author(s):  
Caroline Ferri ◽  
Daniel Lena Marchiori Neto
Keyword(s):  
Rule Of Law ◽  
Peaceful Coexistence ◽  
The Rule Of Law ◽  
Joseph Schumpeter ◽  
Michael Oakeshott ◽  
Civil Association ◽  
Political Deliberation ◽  
Theory Of Democracy

Resumo:Joseph Schumpeter e Michael Oakeshott são autores vinculados a um conservadorismo em política. O primeiro trata a democracia como um método de decisão política; os indivíduos adquirem o poder de decisão através da luta competitiva pelos votos dos eleitores. Oakeshott, ao descrever o Estado como uma associação civil sob o regime do império da lei, afirma que a deliberação política deve ser limitada à manutenção da ordem, para garantir a coexistência pacífica e evitar grandes rupturas institucionais. Este trabalho tem por objetivo estabelecer um paralelo entre os dois autores, avaliando uma possível compatibilidade de suas teorias no que tange à natureza do processo democrático.Palavras-chave: Oakeshott; Schumpeter; democracia. Abstract:Joseph Schumpeter and Michael Oakeshott are linked to certain conservatism in politics. Schumpeter deals with democracy as a political deliberation method; individuals acquire the power to decide through a competitive struggle for votes of the voters. Oakeshott, in describing State as a civil association under the rule of law argues that political deliberation should be limited to the maintenance of order to ensure peaceful coexistence and to avoid large institutional mutations. This paper aims to establish a dialogue between them, evaluating a possible compatibility of their theories concerning the nature of democratic process.Keywords: Oakeshott; Schumpeter; democracy. 

scholarly journals Intellectual property, antitrust, and the rule of law: between private power and state power

2016 ◽  
Vol 17 (2) ◽  
Author(s):  
Ariel Katz
Keyword(s):  
Intellectual Property ◽  
Rule Of Law ◽  
Public Interest ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Order ◽  
Free Competition ◽  
Legal Power ◽  
Private Power ◽  
Ip Law

AbstractThis Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property (IP), antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily

In Defense of “French Nonsense”

2019 ◽  
pp. 221-246
Author(s):  
Gerald J. Postema
Keyword(s):  
Rule Of Law ◽  
Political Rhetoric ◽  
Natural Rights ◽  
Alternative Conception ◽  
The Political ◽  
Constitutional Rights ◽  
Public Justification ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Constitutional Adjudication

Buried beneath the intemperate rhetoric of Bentham’s attack on natural rights lies a serious challenge to the jurisprudence of rights in constitutional adjudication. The political rhetoric of rights, Bentham charged, is not the rhetoric of rational deliberation, but rather the rhetoric of mere assertion and counter-assertion. The language of rights supplies no determinate basis for deciding particular cases. However, Bentham saw clearly that indeterminacy threatens not objectivity—in the sense of a decision’s being ideally correct, or rationally preferred when seen “from nowhere”—but rather publicity. He argued that the indeterminacy of rights language weakens the rule of law, because it undermines conditions of genuine public justification. The language of rights provides no public standards for evaluating rights assertions. Bentham was correct to insist upon the importance of publicity in a democratic constitutional order. However, he mistakenly assumed that public justification is possible only if the demonstrability condition is met. In defense of constitutional rights jurisprudence, this chapter sketches an alternative conception of public justification and argues that public justification understood in this way is not threatened by indeterminacy.

(Un)Constitutional Amendments and Cameroon Constitutions: Strange Bedfellows with the Rule of Law and Constitutionalism

2021 ◽  
Vol 29 (1) ◽  
pp. 95-116
Author(s):  
Justin Ngambu Wanki
Keyword(s):  
Rule Of Law ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The People

The article examines unconstitutional constitutional amendments in the constitutional order of Cameroon dating back from 1960 to 2008. The examination reveals that all the amendments engaged within this period fail to comply with the rule of law and constitutionalism, facilitated and abetted by the three branches of government in Cameroon. The article ends by emphasising that since power is held by government only as a trust for the benefit of the people, it entails that constitutional amendments should be undertaken only when they are in the interests of the people who are the ultimate beneficiaries of the trust.

Profit, Persuasion, and Fidelity: Why People Follow the Rule of Law

2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Michael Ilg
Keyword(s):  
Rule Of Law ◽  
Individual Interest ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Third ◽  
Local Official ◽  
Shared Set ◽  
Self Interest ◽  
Tangible Benefit ◽  
Descriptive Framework

AbstractThis article proposes that there are three types of individual interest perception that explain adherence to the rule of law. The first level, “profit,” refers to tangible individual gain, whether in the form of economic enrichment or the accumulation of political power. The second layer of interest, “persuasion,” involves social norms and reputation. In this second level, individuals adhere to a rule not because of the threat of government sanction or reward, but rather because of intangible concerns for reputation and social status. Finally, the third layer of interest involves individuals forgoing tangible benefit for the sake of fidelity to a constitutional order or a shared set of beliefs. A potential advantage of the three-interest view is that it provides for an accessible descriptive framework that captures the broad nature of the rule of law, moving from the small bribe for a local official to the question of whether a constitution will constrain the powerful. The three-interest view also aligns well with modern developments in experimental and behavioural economics and suggests future lines of research into how individuals and groups navigate from self-interest toward cooperation and fidelity.

Rule of Law, Religious Liberty, and Harmony

2017 ◽  
Vol 5 (3) ◽  
pp. 254-291
Author(s):  
Li-ann Thio
Keyword(s):  
Rule Of Law ◽  
Religious Freedom ◽  
Legal Pluralism ◽  
Case Law ◽  
The State ◽  
Religious Liberty ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Range Of Values

This article examines the state of regulation of religion within Singapore, which is the world’s most religiously diverse country. It considers how fundamental principles of the rule of law, religious liberty and legal pluralism operate within the constitutional order predicated on communitarianism and accommodative secularism. While the rule of law seeks to vindicate a range of values which requires sameness and satisfies claims for inclusion, limits to it through exemptions and accommodative measures that multiculturalism and pluralism may prescribe can protect differences and satisfy claims to be left alone, outside the sphere of state govenance. Drawing from Singapore case law, legislation and executive policy, it interrogates the question of whether a policy of multicultural and legal pluralism protective of religious freedom can be reconciled with the rule of law, which in this context is closely associated with the quasi constitutional objective of preserving racial and religious harmony.

A Masterclass in Evading the Rule of Law: The Saga of Scott Morrison and Temporary Protection Visas

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Joyce Chia ◽  
Savitri Taylor
Keyword(s):  
Rule Of Law ◽  
Policy Objective ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Institutional Frameworks ◽  
Temporary Protection ◽  
The Law

For over a year, the then Minister for Immigration successfully avoided granting permanent protection to refugees who came by boat. His newly elected government had promised to re-introduce a temporary protection regime, but came to power without the numbers to pass necessary legislation. In order to achieve his policy objective, the Minister chose to engage in a variety of legally dubious tactics to forestall and delay granting permanent protection, as required by the law. In doing so, the Minister navigated skilfully through the holes in Australia’s institutional frameworks designed to protect the rule of law and Australia’s constitutional arrangements. The saga of Scott Morrison and temporary protection visas is therefore a telling story about the fragility of the rule of law in Australia and demonstrates how a determined executive can upend the constitutional order.

The Rule of Law and Freedom in Emerging Democracies: A Madisonian Perspective

2003 ◽  
pp. 22-37 ◽  
Author(s):  
J. Dorn
Keyword(s):  
Rule Of Law ◽  
James Madison ◽  
Freedom Of Choice ◽  
Basic Principles ◽  
Emerging Democracies ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Independent States ◽  
The Government ◽  
Newly Independent States

The basic principles of liberal constitutional order proposed by James Madison - the "chief architect" of the U.S. Constitution - are considered in the article. It is stressed that Madison rejected the idea of redistributive state (welfare state) and focused on the limits of government. The overriding principle of liberal order is freedom under the rule of law. The lesson for newly independent states is that spontaneous market-liberal order is needed to coordinate economic activity and the government must minimize its role in the economy. Freedom of choice lets people rise the wealth of nation.

scholarly journals Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo

2020 ◽  
Vol 57 (4) ◽  
pp. 1079-1096
Author(s):  
Nur Çeku ◽  
Haxhi Xhemajli
Keyword(s):  
Rule Of Law ◽  
Minority Groups ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Republic ◽  
European Standards ◽  
The Right ◽  
The Impact

Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.

Oakeshott, Freedom and Republicanism

2005 ◽  
Vol 7 (1) ◽  
pp. 81-96 ◽  
Author(s):  
David Boucher
Keyword(s):  
Rule Of Law ◽  
Institutional Design ◽  
Public And Private ◽  
The Rule Of Law ◽  
The Public ◽  
Political Experience ◽  
Michael Oakeshott ◽  
Civic Virtues ◽  
The Public Sphere ◽  
Civil Condition

It is contended that Michael Oakeshott resists classification in terms of conventional labels of conservative, liberal, right or left, and that it is difficult to incorporate him in discussions of modern liberal theory because his concerns are not with human rights, distributive justice or multiculturalism. It is with reference to the classical republicanism of Rome that Oakeshott's distinctive contribution to political philosophy is illuminated because of his emphasis upon authority, the rule of law and freedom as non-domination. These are the very features that Oakeshott highlights in his lectures on the ‘Political Experience’ and ‘Political Thought’ of the Romans. Oakeshott values the distinction that the Romans, but not the Greeks, made between public and private, but unlike later republicans he does not associate the public sphere exclusively with political participation and civic virtues. One may contribute just as significantly to the public concern by being a music-hall entertainer. Oakeshott is clearly differentiated from modern instrumental republicans who in his view would be rationalists obsessed with institutional design and with viewing the civil condition as an enterprise association.

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