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Law, democracy and the individual

Published online by Cambridge University Press:  02 January 2018

Ian Duncanson*
Affiliation:
La Trobe University

Extract

This article examines a number of propositions about law and government with which lawyers and legal theorists are familiar. It argues that what are often said to be the ends of constitutional government are vague, and that what are said to be the best means of achieving them are underspecified or impossible. When civil liberty is allowed to rest in this state it is unsafe. To the extent that civil liberty is theorised it certainly casts a shadow upon the practical world of politics, and generates expectations. Often, however, when we suppose something like it to have been realised, a closer investigation reveals something quite different, namely benign government.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 1988

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References

1. R M Dworkin, Taking Rights Seriously (London, Duckworth, 1978);, and Law's Empire (London, Fontana, 1986), provide diffuse ideas about citizenship, freedom and the legitimate purpose of government. Also Jennings, I, The Law and the Constitution (Oxford, OUP, any edition)Google Scholar, or Street, H, Freedom, the Individual and the Law (Harmondsworth, Penguin, any edition)Google Scholar; Brennan, F, Too Much Order and Too Little Law (St Lucia, University of Queensland Press, 1983)Google Scholar; MacCormick, D N, Legal Right and Social Democracy (Oxford, OUP, 1982).Google Scholar

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4. There is an excellent summary of quite how bad, based upon OECD, UN, FAQ and other figures in the document submitted by Fidel Castro to the Seventh Summit Conference of Non-Aligned Countries, The World Economic and Social Crisis (La Habana, Oficina de Publicacions del Consejo de Estada 1983);.

5. Arguments for the connexions between the end of British imperial hegemony, economic decline and political authoritarianism are contained in C Leys Politics in Britain (London, Heinemann, 1983); P Anderson, ‘The Figures of Descent’ (1987) 161 New Left Rev 20. There is a different perspective on the same phenomenon in Barnett, C, The Audit of War: The Illusion and Reality of Britain as a Great Nation (London, Macmillan, 1986)Google Scholar. For an account of the authoritarianism in the UK, see Scraton, P (ed) Law, Order and the Authoritarian State (Milton Keynes, Open University Press, 1987).Google Scholar

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7. T Hobbes, De Cive (1651);, B Gort (ed) (Brighton, Harvester Press, 1972);.

8. See J G A Pocock, The Ancient Constitution and the Feudal Law (New York, Norton Paperbacks, 1967);.

9. D Held, Models of Democracy (Stanford, Stanford UP. 1987);: K Graham. The Battle of Democracy (Brighton, Wheatsheaf Books; 1986). For Whig views of government and democracy, and their distaste for Locke, see Dickinson, H T, Liberty and Property: Political Ideology in Eighteenth Century England (London, Weidenfeld, 1978)Google Scholar; Pocock, J G A, Virtue Commerce and History (New York, CUP, 1985)CrossRefGoogle Scholar.

10. David Hume finds endorsement in MacCormick op cit, (1982); there is a discussion of Kant in Peter Benson, ‘External Freedom According to Kant’ (1987) 87 Columbia Law Rev 559.

11. See Held op cit, ch 2.

12. Held, op cit; E Ruben, John Austin's Political Pamphlets, in E E Attwooll (ed) Perspectives in Jurisprudence (Glasgow, Glasgow University Press, 1977); Morrison, W L, John Austin (London, Edward Arnold, 1982)Google Scholar; L & Hamburger, J, Troubled Lives: John and Sarah Austin (Toronto, Toronto University Press, 1985)Google Scholar;, ch 2.

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14. Dworkin sees Law's role in this way – as Neil MacCormick puts it, ‘as a side-constraint upon democracy’ (in a comment upon an earlier version of this paper). There are those who see the rule of law as extending the rule of property over democracy: see Lustig, R J, Corporate Liberalism- the origins of modern American political theory (Berkeley, v Cal Press, 1982)Google Scholar; H Glasbeek & M Mandel, ‘The Legislation of Politics in Advanced Capitalism: The Canadian Charter of Rights and Freedoms’ (1984) 2 Socialist Studies 84. See also Dahl, R, A Preface to Economic Democracy (Berkeley, v Cal Press 1985)Google Scholar;.

15. See I Duncanson, ‘Hermeneutics and Persistent Questions in Hart's Jurisprudence’ (1987); Juridical Review 113, and the literature cited.

16. This account is based upon H L A Hart, The Concept of Low (Oxford, OUP 1961);.

17. I Duncanson, ‘The Strange World of English Jurisprudence’ (1979); NILQ 207; ‘Jurisprudence and Politics (1982) NILQ 1.

18. D N MacCormick, Legal Reaming and Legal Theory (Oxford, Clarendon Press, 1978); p 56.

19. Something like this perhaps underlies E P Thompson's otherwise odd conclusion to Whigs and Hunters (1974);.

20. I Gilmour, Inside Right (London, Hutchinson, 1977); p 211, cited in G Hodges, The Democratic Economy (Harmondsworth, Penguin, 1984) p 11. The account by Hailsham of the dangers posed by a radical government to democracy (hence the need for a bill of rights), of course drips with irony in retrospect: such a government would. ‘assert its will over the whole people whatever that will may be. It will end in a rigid economic plan, a curbed and subservient judiciary, a regulated press … It will crush local autonomy. It will dictate the structure, form and context of education…’. Hailsham, The Dilemma of Democracy (1977), cited in J Griffith's Chorley lecture, reprinted in (1979) 42 MLR 1, pp 9–10, The point is important and not party political.

21. P Wright, Spycatcher (New York, Viking Press, 1987); p 362.

22. N Chomsky, Turning the Tide: US intervention in Central America and the struggle for peace (Boston, South End Press, 1985); MacMahon, J, Reagan and the World (London, Pluto Press, 1984)Google Scholar. They were, of course, written before the Iran arms scandal.

23. Coxsedge, J, Coldicutt, K, and Harant, G, Rooted in Secrecy - the Clandestine Element in Australian Politics (Melbourne, CAPP 1982)Google Scholar;.

24. R M Dworkin, Taking Rights Seriously (London, Duckworth, 1978); p 81.

25. Dworkin's idea of community is peculiarly vague, and far less convincing than that of Taylor, Michael, Community, Anarchy and Liberty (Cambridge, CUP 1982)CrossRefGoogle Scholar; pp 27–28. See R Dworkin, Law's Empire (1986) p 208.

26. Thus the integrity principle of interpretation demands that ‘the public standards of the community be both made and seen, so far as possible, to express a single coherent scheme of justice and fairness in right relation’op cit 206.

27. See G Warnke, Gadamer: Hermeneutics, Tradition and Reason (Cambridge, Polity Press, 1987);.

28. See Gadamer, H G, Truth and Method, trans Barden, G and Cumming, J (New York, Crossroad, 1986)Google Scholar; Philosophical Hermeneutics, trans D Linge (Berkeley, University of California Press, 1976). Many of the insights as well as the analogies and arguments in Law's Empire are drawn from Gadamer. Thus, Dworkin's remarks about morality and skepticism echo Gadamer's criticism of ‘naive historicism’; we cannot see a linguistic world from above … for there is no point of view outside the experience of the world in language from which it could itself become an object op cit 410.

29. R Palmer, Hermeneutics: Interpretation Theory in Schleiersmacher, Dulthey, Heidegger and Gadamer (Evanston, Ill, Northwestern University Press, 1969); p 185.

30. A MacIntyre, Afer Virtue – A Study in Moral Theory (Notre Dame, Notre Dame University Press, 1981); p 70.

31. Griffith, op cit, p 11.

32. Dworkin (1986);, p 14.

33. Op cit, p 12.

34. Op cit, pp 14 – 15.

35. B Anderson, Imagined Communities (London, Verso, 1983); Formations Editorial Collective (Ed), Formations of Nation and People (London, RKP, 1984); R Colls and P Dodd, Englishness, Politics and Culture 1880–1920 (London, Croom Helm, 1987); MacKenzie, J, Propaganda and Empire: the manipulation of British public opinion 1880–1960 (Manchester, Manchester University Press, 1985)Google Scholar.

36. European and European-style political formations have histories that make any dissociation between chauvinism and the national community hard to comprehend. Grenada, Nicaragua and the Falklands provide a background to Law's Empire. Governments regularly attack local or non-national forms of community.

37. G Warnke, op cit, p 72. As she points out, it will not do for Gadamer to protest his intention, for authorial intention is explicitly rejected in his (and thus Dworkin's) theory of interpretation.

38. N Elias, The Civilising Process (2 vols) (Oxford, Blackwell, 1978);.

39. See the comments of Jameson, F, The Political Unconscious: Narrative As Socially Symbolic Act, (Ithaca, NY, Cornell UP, 1981)Google Scholar ch 1 and generally, Hirst, P and Woolley, P, Social Relations and Human Attributes (London, RKP 1982)Google Scholar;.

40. This is the drift of Althusser's analysis of the subject, which draws upon the psychoanalytic theory of the interpellation or ‘hailing’ of the subject in Lacan's work. See L Althusser, Lenin and Philosophy (London, NLB 1971); A Lemaine Jacques Lacan (London, RKP, 1979) ch 15.

41. J Williamson, Decoding Advertising (London, RKP, 1978); p 29; Walkerdene, V et al, Changing the subject (London, RKP, 1984).Google Scholar

42. This is evident in the approaches which bureaucracies - ‘public’ or ‘private’ - adopt towards legal regulation, eg, decisions not to prosecute, made on tactical grounds, or perhaps, the Distillers Company's commencing litigation with which it probably did not intend to proceed in order to be able to invoke the sub judice rules and forestall press comment.

43. I Duncanson, ‘Moral Outrage and Technical Questions — Civil Liberties, Law and Politics’ (1984); 35 NILQ 153; ‘Some categories in Civil Libertarian Thought’ (1985) UNSW Law J 401, 415: ‘The construction of individuality is not a massive Svengalian plot, but the multi-centered process by which a person becomes aware of its many-faceted possibilities and begins the social business of growing into them and enhancing them by combining them in unique ways. The politics of what possibilities are desired is what civil liberties can become once freed of traditional preconceptions’.

44. I Berlin, ‘The Notion of “Negative Freedom”’ in P Radcliffe (ed) The Limits of Liberty (Belmont, Ca, Wadsworth, 1966);. See V Kerruish and I Duncanson, ‘The Reclamation of Civil Liberty’ (1986) 6 Windsor Yearbook of Access to Justice 3, 17.

45. See S J Gould, The Mismeasure of Man (Harmondsworth, Penguin, 1981); Rose, S, Kamin, L and Lewontin, R, Not in Our Gents: Biology, Ideology and Human Nature (Harmondsworth, Penguin, 1984 Google Scholar); Banton, M, Racial Throries (Cambridge, CUP, 1987).Google Scholar

46. The account of power is drawn from S Lukes, Power – A Radical View (London, Macmillan, 1974);, and Ted Benton, ‘Realism, Power and Objective Interests’, in K Graham (ed) Contemporary Political Philosophy (Cambridge, CUP, 1982).

47. This section draws upon D Held, op cit note 9; K Graham op cit, note 9; S Bowles and H Gintis, Democracy and Capitalism-Property, Community and the Contradictions of Modem Political Thought (London, RKP, 1986); D Held and C Pollit (eds) New Forms of Democracy (London, Sage, 1986);.