摘要:

Abstract.Although the concept of Rule of Law has been revived and developed vigorously by mid‐twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theor

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00022.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.F. A. Hayek's defense and analysis of the liberal state built on rule of law is both a moral and a scientific enterprise. The author shows that Hayek favors rule of law because it seeks to protect moral agency. It is procedurally rather than morally restrictive because men cannot easily know moral truth. Markets are included in Hayek's analysis not because they produce wealth but because they promote moral agency.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00023.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The author explains Michael Oakeshott's distinctive theory of law through an explanation of its notion of authority. He explains the view that modern states are ambiguous, consisting partly ofcivil associationsandpartlyofenterprise associations. Authority is not a function of people's attitudes to those in power, but exists when a government's action is itself accepted as sufficient reason for unconditional obedience. Authority in this sense cannot exist in enterprise association, commitment to which must be contingent on the fulfillment of purposes common to all participants. But modern states are compulsory associations, different from each. Furthermore, authority could never be justified on a rational choice model, which must always be teleological in character. Because this means there can be no solution to the problem of political obligation, all philosophy can do is describe abstractly the Rule of Law state which does reconcile authority and liberty.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00024.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist ‐ or at least some of his followers on the contemporary British and American political scene ‐ have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule of law to social just

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00025.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The controversy over law and morality between positivists and normativists is largely a result of failure on both sides to understand the idea of authority. The author argues that Plato, Aristotle, Aquinas and Hobbes held a common notion of legal authority that was distinctively moral. They all saw the virtue of law (and the source of legal obligation) in the equal protection it provides for all against the disorder to which passion makes men vulnerable, and not in the justice of its provisions. Michael Oakeshott, among contemporary theorists, best illustrates this approach to a resolution of the differences between positivists and normativists.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00026.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.Instead of being embarrassed and uneasy about the implications of the separation thesis, positivists should welcome the fact that they cannot account for the obligatoriness of law. The rule of recognition is only a social rule and introduces no grounds for obligation.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00027.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social order.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00028.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The concept of co‐ordination problems helps solve the problem of authority and obligation in legal theory, but only if the concept is carefully distinguished from the game‐theoretical concept of co‐ordination problems and their solutions. After explaining the game‐theoretical concept, the author defends its application to legal theory by reviewing the exchange he has had with Joseph Raz about the authority of law. Extending that debate, he argues that criticisms from Raz and others miss the point of the co‐ordination thesis; its primary benefit is that it illuminates the source of law's moral authority in the way law enables individuals to co‐ordinate their actions for the common good without imposing a national common enterpris

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00029.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY

摘要:

Abstract.The widely recognized impasse in legal theory, which requires an account of law as “both a social factanda framework of reasons for action” has been most interestingly addressed in recent years by writers characterizing law as convention in the sense of a solution to a game theoretical “coordination problem.” As critics have neutralized most of these proposals, the author advances an account of conventionalism, drawing on economic and sociological theory, which he claims makes the bridge between positivist and naturalist theories of law without compromising the basic insights of either. The result is a unified theory of law, politics and

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1989.tb00030.x

出版商:Blackwell Publishing Ltd    

年代:1989

数据来源: WILEY