Common Good Constitutionalism and the Problem of Administrative Absolutism

In the shadow of the United Nations Declaration on the Rights of Indigenous Peoples, adopted and endorsed by 143 nations on 17th September 2007, the then Howard Government suspended the Racial Discrimination Act in Australia to implement the Northern Territory Emergency Response Bill, commonly referred to as the Northern Territory intervention. This legislation included the compulsory acquisition of townships; the suspension of the permit system to access Aboriginal communities; the removal of customary law or cultural practices in any legal considerations in sentencing; the abolition of the Community Development Employment Projects; and the quarantining of a proportion of welfare benefits for all recipients in designated communities. While Australia was one of only four nations who did not endorse the Declaration in 2007, the UN Declaration was subsequently adopted and endorsed in April 2009 by the then Rudd Labor Government. The ratification of the UN Declaration may appear to reflect a change of policy, yet amidst significant Indigenous opposition and criticism of the United Nations, the Gillard Labor Government continued the central tenants of the NT Intervention for a further ten years in the form of the Stronger Futures legislation in 2012. This essay explores some of the tensions and contradictions inherent within legal and political discourse in the recognition of rights between the rights of the child on the one hand, and Indigenous rights and citizenship rights within the Northern Territory Intervention legislation and policy of Stronger Futures in the Northern Territory.

The article explores parliamentary discourse as a component of political discourse. Factors that influence the modern transformation of the parliamentary discourse as an integral part of the political discourse of a democratic state are identified. First of all, they are caused by significant shifts in the post-Soviet political space, and secondly, by global technological innovations and economic, social and political changes in recent decades. Among the factors that determine the current state and prospects for the development of parliamentary discourse is not only the gradual departure from Soviet/post-Soviet discursive practices and the mediatization of politics, but also the development of networked means of social and political communication. The transformation of the parliamentary discourse in the current stage of political development has been noted, the role of the parliamentary discourse in the system of political communications and its importance in the process of political discourse formation has been defined. The process of 'blurring' the boundaries between ordinary and political discourse deserves special attention in relation to parliamentary discourse. After all, parliament is a body of representative power. Deputies do not only act as professional politicians and legislators. Above all, they represent different social groups, stratums, communities and classes, each with its own discursive practices. Accordingly, the transformation of parliamentary discourse is characterized by the expansion of the discourse of everyday life, both indirectly (through social networks) and directly, through the delegation of representatives of various social discourses to parliament. A characteristic feature of modern Ukrainian politics is the renewal of the government following the presidential and parliamentary elections held in 2019. As a result of the extraordinary elections to the Verkhovna Rada of Ukraine, both professional politicians and representatives of other social groups and discursive practices have joined the Parliament. In the process of power reset and rethinking the essence of political activity and politics as a social phenomenon, everyday discourse acquires special importance. Its representatives often consciously deny the norms, rules and traditions of political discourse. The everyday discourse becomes an important part of the parliamentary discourse. In the process of shaping the parliamentary discourse of the 9th Parliament, the daily, political, scientific and legal discourse is mutually influenced.

Reviewed by: Black Natural Law by Vincent W. Lloyd Ronald B. Neal Vincent W. Lloyd. Black Natural Law. New York: Oxford UP, 2016. 180 pp. $55.00. [Erratum] Vincent W. Lloyd's Black Natural Law is concerned with the state of black politics in contemporary America. In Black Natural Law, Lloyd argues that contemporary black politics suffers from a loss of purpose and direction in relation to the condition of the black majority in the United States. He contends that the black political class has gotten lost in the machinations of current electoral politics and the race-neutral ideological agendas of liberals and leftists, multiculturalism, and secularism. In a word, present-day black politics has no depth or foundation, and worse, no future to propose to many black Americans in the United States. In Lloyd's account, so dire is the state of black politics, that even the two-term electoral achievement of the first black President of the United States, Barack Obama (a risk-averse president along the line of race), was reflective of the impoverished state of black political life in America. If there is a single social phenomenon that points to this crisis, it is mass incarceration. Unlike the institutions of slavery and [End Page 212] de jure and de facto Jim Crow, legal segregation, the problem of mass incarceration has not yielded a robust movement of dissent on the part of the black political class. In Lloyd's account, where the black political class is concerned, there is no consensus on the gravity of mass incarceration as an urgent political interest. More profoundly, beyond mass incarceration, there is no agreement on what counts as the shared condition among black Americans. What Lloyd calls "black natural law" attempts to overcome this dilemma. According to Lloyd, black natural law is a tradition of natural law with a unique outlook on human nature, which was employed by black political elites from the antebellum period to the civil rights era. Through a close reading of the lives and legacies of Frederick Douglass, Anna Julia Cooper, W. E. B. Du Bois, and Martin Luther King, Jr., Lloyd identifies a tradition of natural law, represented by these figures, in addressing the condition of the black majority during their lifetimes. In each chapter, Lloyd outlines the distinct manner in which each figure employed black natural law. Lloyd delineates black natural law in terms of three distinct themes: reason, imagination, and emotion. These themes, which are also universal human faculties, were integral to a metaphysical, legal, and existential attack on the culture and institutions of segregation. Being denied legal recognition as citizens of the United States and recognition as human beings, Jim Crow-era elites had to appeal to a higher law—the law of God—to champion the cause of black freedom. The appeal to the law of God was inseparable from the creative use of reason, imagination, and emotion. Lloyd contends that black natural law is an unacknowledged tradition that is related to yet distinct from the mainstream traditions of Catholic natural law. Although related to Catholic natural law writ large, black natural law, in its engagement with race, goes beyond the Catholic theological mainstream. As Lloyd argues, "black natural law offers the best way to approach politics, not just for blacks but for everyone. It is the approach that ought to be taken. The black natural law tradition addresses the same problems addressed by other natural law traditions, but it offers more coherent and compelling responses" (ix). For Lloyd, this tradition warrants serious consideration in the resuscitation of black politics in the United States. Black Natural Law offers an incisive critique of the current political mood of the United States and more significantly, that of the black political class. Its invocation of higher law (God's law) and the primacy of reason, emotion, and imagination in political discernment, is a direct challenge to a political class that is fragmented in terms of identity and ideology. It is a rebuke of political relativism in light of the persistence of antiblackness and racism in the United States, mass incarceration being one of its most visible outcomes. Overall, Lloyd attributes the weakness of black...

Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'

The theory of natural law grounds human laws in the universal truths of God s creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.

A Realistic Theory of Law (Book Review)

Indigenizing AgambenRethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples Mark Rifkin (bio) But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. …. Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy …; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. —Cherokee Nation v. Georgia (1831) The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character. …. They were, and always have been, regarded … not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. —U.S. v. Kagama (1886) Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty…. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. —Oliphant v. Suquamish Indian Tribe et al. (1978) [End Page 88] What does "sovereignty" mean in the context of U.S. Indian policy? Looking at the statements above, all from U.S. Supreme Court decisions focused on the status of Native peoples, sovereignty at least touches on questions of jurisdiction, the drawing of national boundaries, and control over the legal status of persons and entities within those boundaries.1 While one could characterize the concept of sovereignty as a shorthand for the set of legal practices and principles that allow one to determine the rightful scope of U.S. authority, it seems to function in the decisions less as a way of designating a specific set of powers than as a negative presence, as what Native peoples categorically lack, or at the least only have in some radically diminished fashion managed by the United States. Further, the decisions cited seem less to extend existing legal categories and precedents than to indicate the absence of an appropriate legal framework in which to consider the political issues and dynamics at hand. Native peoples appear as a gap within U.S. legal discourse. These passages suggest that the available logics of U.S. jurisdiction are unable to incorporate Native peoples comfortably, and that continued Native presence pushes against the presumed coherence of the U.S. territorial and jurisdictional imaginary. While the decisions seem to be grasping to find language adequate to the disturbing legal limbo in which Native nations appear to sit, they also insist unequivocally that such peoples fall within the bounds of U.S. sovereignty, and the oddity attributed to U.S. Indian policy is offered as confirmation of that fact. Typifying "the relations of the Indians to the United States" as "peculiar" and "anomalous," while also consistently presenting Native peoples as unlike all other political entities in U.S. law and policy, indexes the failure of U.S. discourses to encompass them while speaking as if they were incorporated via their incommensurability. In Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben has described this kind of dialectic as the "state of exception," suggesting that it is at the core of what it means for a state to exert "sovereignty."2 He argues, "the sovereign decision on the exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what...

Natural Law's Return: Uncovering the Roots of Intractability on Guns as Prelude to New Growth

Eric A. Posner and Adrian Vermeule. Oxford: Oxford University Press, 2007. £17.99/$29.95. 319 pp. Since the 11 September 2001 attacks on New York and Washington, the United States and its allies ha...

Universal Principles, Global Cooperation, and Moral Disagreement:A Natural Law Account Joseph Boyle (bio) I. Introduction Since ancient times a number of Western moral views have been described or self-described as "natural law" ethics. These views claim that there are universal moral principles and norms. Moral principles, according to natural law views, are somehow "natural," and, thus, are the common property of those who share human nature. That implies that the principles of the natural law are in principle accessible to all humans. Those who accept this ethical approach are not in full agreement about the precise sense and reference of the expression "natural law" or about the specific moral norms justified by the principles of the natural law. I do not here propose to address these differences among natural law theorists. Instead, I will sketch the approach to universal moral principles that I, as a philosopher working within the natural law tradition, think correct. My approach is within the broad tradition of natural law theorizing inspired by St. Thomas Aquinas; it is the version of Thomistic natural law called the "new natural law theory."1 Natural law theories include a conception of the nature and purpose of morality. Two closely related theses comprise the key elements of this conception. The first is that moral principles, and their implications in moral norms and judgments, are propositional realities having logical relationships and normative content that can be formulated, debated and judged either correct or incorrect. Thus, natural law theory is a form of ethical rationalism; moral judgments are a form of knowledge. The second thesis holds that moral principles are universal in two senses: they are applicable to all human actions, and they are accessible to all human beings capable of the reasoning needed for choice and action. Some immediate implications of these theses are obviously important for thinking about moral diversity, difference and consensus. First, the universal applicability of moral principles implies that there are no human actions, however complex their circumstances and obscure their significance, that are in principle immune from moral assessment. Second, the universal accessibility of the principles of the natural law implies that moral norms, customs, and practices are not finally a matter of local custom or particular circumstance. Criticism in the light of accessible moral principle is always possible. Third, the conjunction of the universal accessibility of natural law and its ethical rationalism makes the possibility of recognizing mistaken moral judgment and practice more than an abstract possibility, but, instead, an ordinary, intelligible aspect of moral life and thought. Any person capable of practical reasoning and choice can access enough of moral principle to criticize his or her own moral beliefs and those of his or her society. That capability is obviously ethically significant. Its availability in reflection to people generally implies that they are not simply stuck with the moral limitations and corruption of their culture, upbringing, and life experience; they have the resources for critical judgment and autonomous action based on that reflection. These claims about the nature of morality may now seem quaint given some defining features of post-modernity. The conjunction of two features of our post-modern world poses a special problem for natural law theory: (1) the rapidly emerging globalization of economic, social and political life; and (2) the pervasiveness of post-modern relativism, and "local-only" conceptions of morality. These conceptions reject the universalist theses I listed above. But they do so in a globalized context calling for moral guidance for the world-wide interactions that transcend the moralities of local communities and their members. Together these features challenge the core convictions of natural law theory. In this contribution, I will briefly articulate and defend these strong natural law claims about the nature of morality, and will bring natural law theory to bear on the challenge posed to them by the realities of our post-modern and globalized situation. I will develop this account as follows: In part II, I will summarize the account of the human good that underlies morality according to natural law theories that follow Aquinas's classic treatment. In Part III, I will sketch an account of how universal moral principles are justified...

Previous articleNext article No AccessDiscussionContraception and the Logical Structure of the Thomist Natural Law TheoryRichard H. BeisRichard H. Beis Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 75, Number 4Jul., 1965 Article DOIhttps://doi.org/10.1086/291551 Views: 4Total views on this site Copyright 1965 University of ChicagoPDF download Crossref reports no articles citing this article.

The concept of suspension of sovereignty is not new in the legal and political discourses in international relations. It has been employed mainly to describe dramatic and extreme situations in which a clear rupture is observed between the legal proposition of internal sovereignty and the social and political realities on the ground. A prominent example has been the case of foreign occupation. The recent UN Security Council Resolutions on Kosovo and East Timor rekindled interest in the concept of suspended sovereignty and raised new perspectives about its function and role in international politics because it is the product of legitimate international processes representing a further evolution of models of international political authority. Thus, the possible future crystallization of such a concept in international law should be seen and explored more as an opportunity to increase the transparency and accountability of international transitional administrations and less as a chance to reintroduce hierarchical relations in international politics.

The aim of this thesis is to analyze mental health care in Australia from a social justice and human rights perspective, in order to demonstrate that social justice as a philosophical manifestation of justice and fairness, is an essential ingredient in the theory and practice of mental health care. It is contended that the needs of the mentally ill would be most appropriately answered by the utilization of a Natural Law model, based on Finnis's Natural Law theory. The Scope of the Thesis.The needs and care of the mentally ill are discussed, together with the treatment meted out to these vulnerable members of society since, approximately, the year 1800. Neither the criminally insane, nor the intellectually disabled are included in this discourse. Each group of people merits a thesis on its own: criminal insanity requires a debate to include the history, psychiatric and legal approaches to the subject, and current management of the insane. The intellectually disabled are not mentally ill; their ability to function as all round, naturally competent individuals is diminished by an inadequacy and/or impairment of their intellectual capacities. The needs of these two groups are far too broad and demanding to be included within the current thesis. Rationale for the Timeframe The timeframe, 1800 until 2004, has been established because it approximates to the transition from the end of the Classical through the Modern Age to the Post Modern Age, together with the predominance of Enlightenment philosophical theories, and the development of a scientific approach to medicine. Further, many politico-economic and social changes were taking place, associated with the Industrial Revolution. All are shown to have affected the introduction of asylumdom, and the institutionalization of those unable to participate actively in the industrial workforce.;Of significant importance to the development of institutionalization for such marginal groups is the philosophy of Jeremy Bentham. Bentham espoused Classical Utilitarianism which will be shown to believe that the ultimate standard of utility is not the individual's happiness but the greatest amount of happiness altogether. The thesis will demonstrate that this philosophical view prevailed from the beginning of the Industrial Revolution, with Benthamism influencing the sequestration of the unemployable into institutional life. Development of the Thesis.The thesis is developed against a background of prevailing philosophical, and other changes as stated above, including the medicalization of mental illness and the development of psychiatry as a branch of medicine. There is manifestation of many social injustices to those incarcerated in the asylum in all three countries under consideration: England, USA, and Australia. It is demonstrated that social justice and human rights of their work forces were disregarded by many employers at the time of the Industrial Revolution. Such values were, therefore, unlikely to prevail with regard to the mentally ill. Asylumdom continued with few changes in its practices until after World War II. It is shown that the predominance of post Enlightenment theories, together with further politico-economic, social and pharmaceutical revolutionary change followed the Second World War. Encouraged also by the founding of the United Nations and World Health Organizations as well as provision of the Declaration of Human Rights, circumstances led to the process of de-institutionalization of the mentally ill. The latter were decanted with apparently unseemly haste into a community ill prepared for such a change, and with little evidence of infra- structure to support the move. Need to conduct a National Inquiry. There was, then, a need to investigate what was now an overt issue of mental health care.;The two subsequent inquiries by the Australian Health Ministers Advisory Council, (AHMAC) and the Burdekin Report, both focused on social justice issues, and addressed epidemiological, economic, sociological and justice considerations. Within the thesis, both investigations are critiqued against a Natural Law model, using Finnis's Natural Law theory. It is demonstrated that contrary to Enlightenment principles of social justice as described by Miller, such a theory is eminently practical, and answers the needs of all members of the community, providing not merely 'the greatest happiness for the greatest number' but the common good of all Conclusion. Evidence shows that such a Natural Law theory is required to give a firm foundation to the needs of the mentally ill, especially at a time when relativism, economic rationalism and negative aspects of globalization prevail. Without such a basis the mentally ill are left insecure, uncertain and adrift in a world uncaring of their plight, while all the earnest exhortations espoused by Reports remain platitudes, subject to the whims of whatever government is in power. Our responsibilities to all our fellow human beings demand better from us than this.

Against the historical backdrop of the codification debate in nineteenth century Germany, this article traces the reassertion of “legal science” as an autonomous source of European legal integration in current legal and political discourse about the harmonization of European private law. The article argues that a grasp of widely shared ideas about the role and function of legal science and legal scientists is vital both toward an understanding of the extraordinary impact of the academic project of a European civil code on legal and political discourse in the Union in particular, and toward furthering the theory of legal fields in general.

This article argues the benefits of including a theological interpretation of natural law morality within the normative discourses of international politics. It challenges the assumption of a Grotian secular natural law arguing that practical reason, in a Thomist interpretation, is better suited to the demands of international political theory. It engages with themes of agency, practical reason, and community in order to enhance the content of the post-territorial community evidenced in ethical cosmopolitan debates. Likewise, it envisions simultaneously enhancing a rapprochement among cosmopolitan and communitarian discourses of international politics facilitated through an institutional design guided by the morality of natural law.