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Both legal theory and theories of the state stand at a crossroads today. The modern state has transformed quite radically from its traditional image. According to Habermas’ account, in traditional societies, “the law made by the ruler remained subordinate to the Christian natural law administered by the Church”. The social integration was a result of bonding convictions which came from the mythical narratives and ritual practices. However, in the postmodern situation with all its complex interrogations of Universalist claims and a predominantly secular society such as ours, “the normative order is maintained without such metasocial guarantees”. Such a situation leads to a specific question: how is social order maintained amidst such disenchantment, internal differentiation and widespread plurality in the society. One way to answer this question is to come to terms with the way in which certain norms are regulated and how they bring about “willingness to comply simultaneously by means of de facto constraint and legitimate validity”. Such norms with their covert authority fuse validity with the force of the factual which in turn, “leads to a system of rights that lends to individual liberties the coercive force of law”. And, for Habermas, modern law at its core “consists of private rights that mark out the legitimate scope of individual liberties and are thus tailored to the strategic pursuit of private interests”.
There is a tension which resides at every level of the legal sphere. Consider, for example, compulsory laws which are backed by sanctions. On the one hand, such laws are ratified by a lawgiver with the aim to punish those who do not comply; to the extent that they are actually enforced and followed. On the other hand, com...
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...Philosophy, 10 Oct. 2005. Web. 10 Dec 2013. < http://www.iep.utm.edu/agamben/>.
---. “Agamben’s Messianic Politics: Biopolitics, Abandonment and Happy Life.” Contretemps 5 (2004): 42-62.
Nancy, Jean-Luc. “Abandoned Being,” Trans. Brian Holmes. The Birth to Presence. California: Stanford University Press, 1993. Print.
Norris, Andrew, ed. “Giorgio Agamben and the Politics of the Living Dead.” Politics, Metaphysics, and Death. Durham: Duke University Press, 2005.1-30.
Passavant, Paul A. “Democracy’s ruin, democracy archive.” Reading Modern Law: Critical Methodologies and Sovereign Formations. Ed. Ruth Buchanan, Stewart Motha, and Sundhya Pahuja. New York: Routledge, 2012. 49-53.
Pinkus, Karen. “$, Anomie, State of Exception.” State of Exception: Cultural Responses to the Rhetoric of Fear. Ed. Elena Bellina and Paola Bonifazio. Newcastle: Cambridge Scholars Press, 2006.
1. Janda, Kenneth. The Challenge of Democracy. Houghton Mifflin Co. Boston, MA. 1999. (Chapter 3 & 4).
Janda, Kenneth. Berry, Jeffrey. Goldman, Jerry (2008). The Challenge of Democracy (9th ed.). Boston; New York: Houghton Mifflin Company.
William Smith, Democracy, Deliberation and Disobedience (Paper presented at the UK Association for Legal and Social Philosophy Annual Conference, University of Newcastle upon Tyne, April 2003).
In every society around the world, the law is affecting everyone since it shapes the behavior and sense of right and wrong for every citizen in society. Laws are meant to control a society’s behavior by outlining the accepted forms of conduct. The law is designed as a neutral aspect existent to solve society’s problems, a system specially designed to provide people with peace and order. The legal system runs more efficiently when people understand the laws they are intended to follow along with their legal rights and responsibilities.
Morality is the principles and standards set by society for evaluating between right and wrong. “One has not only a legal but a moral responsibility to obey just laws” (A Natural Law Approach 284). Unreasonable laws created by a democratic legislature can very e...
Dye, T. R., Zeigler, H., & Schubert, L. (2012). The Irony of Democracy (15th ed.).
Laws are implemented to enforce civil proceedings in society, thereby enabling individuals to operate and function within a morally stable population. But there is a delicate and uncertain balance between doing so and restricting personal freedoms--for though individuals should not be wholly free to conduct themselves as they please (for fear of anarchy), neither should they be confined to a level by which they are unable to direct their life’s course and pursue personal betterment. When citizens feel this to be the case, they have the right to peacefully display their grievances with enacted law for the advocation of positive change in the society. For if a society is truly free, the government
In making this argument this essay seeks to five things. Firstly, to define democracy within the contemporary context offering the key characteristics of a modern re...
Often, we fail to see the distinction between morality and law. Many times, we indecorously allow one to guide the other. What society morally deems right, or wrong, can simply be a reflection of the law. At times, they serve to channel our conducts. But unfortunately, the law does not always serve morality justice, and moral principles are not always consistent across society. Hence, we must not...
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
Durkheim sees the role of law and punishment to be important for the solidarity of society as a whole. (Ibid., p81) Here, society has a...
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,
Legal realism defines legal rights and duties as whatever the court says they are. Out of all the legal theories we have examined in class, I personally believe that this is the one that best exemplifies the purpose of law and would best suit and benefit society. The Dimensions of Law textbook defines legal realism as “the school of legal philosophy that examines law in a realistic rather than theoretical fashion; the belief that law is determined by what actually happens in court as judges interpret and apply law.”
Zakaria, F. (2007). The Future of Freedom: Illiberal Democracy at Home and Abroad (Revised Edition). New York: W. W. Norton.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.