Since 1945, there have been two waves of Anglo-American writing on Hegel's political thought. The first defended it against works portraying Hegel as an apologist of Prussian reaction and a theorist ...of totalitarian nationalism. The second presented Hegel as a civic humanist critic of liberalism in the tradition of Rousseau. The first suppressed elements of Hegel's thought that challenge liberalism's individualistic premises; the second downplayed Hegel's theism. This book recovers what was lost in each wave. It restores aspects of Hegel's political thought unsettling to liberal beliefs, yet that lead to a state more liberal than Locke's and Kant's, which retain authoritarian elements. It also scrutinizes Hegel's claim to have justified theism to rational insight, hence to have made it conformable to Enlightenment standards of admissible public discourse. And it seeks to show how, for Hegel, the wholeness unique to divinity is realizable among humans without concession or compromise and what role philosophy must play in its final achievement. Lastly, we are shown what form Hegel's philosophy can take in a world not yet prepared for his science. Here is Hegel's political thought undistorted.
Constitutionalizing self-defence Brudner, Alan
The University of Toronto law journal,
11/2011, Volume:
61, Issue:
4
Journal Article
Peer reviewed
Open access
Taking its cue from the Supreme Court of Canada's constitutionalization of the criminal law's unwritten general part, this article illustrates the interaction between criminal law theory and ...constitutional law that process implies. It does so by applying a criminal law theory of why and when force in self-defence is justified in order to assess the constitutionality of the self-defence provisions of Canada's 'Criminal Code'. The assessment concludes that, though frequently criticized for excessive complexity, the Code's provisions on self-defence accurately track the nuances demanded by the theory of self-defence best qualified to interpret the provisions. That theory, I argue, puts dignity rather than self-preservation at its centre.
Taking religious freedom as illustrative, this essay proposes a theory of the basic freedoms that pacifies the conflict among libertarian, egalitarian, and communitarian sects of liberalism. This ...theory follows John Rawls’s suggestion that constitutional courts are exemplars of public reason but rejects his partisan construal of public reason in terms that only an egalitarian liberal would recognize. If, as Rawls argues, liberal pluralism is reasonable and if constitutional courts are guardians of public reason, then an ideal constitutional court will guide itself by the theory of the basic freedoms that reconciles liberal pluralism with the rule of public reason. Such a theory will integrate the plurality of liberal sects into an inclusive liberalism that preserves a distinctive role for each in defining and limiting constitutional rights, while refining them of the errors resulting from their hegemonic ambitions. Liberal pluralism is thus preserved, but liberal fragmentation is overcome. Public reason is sought not through an escape from pluralism but in a logical concord among the denominations of liberalism. The way for courts to execute this concord in constitutional cases is to follow the method of reasoning they have already largely adopted. That method is proportionality review.
¿Qué es lo que tienen de especial ciertas libertades para merecer protección constitucional frente a la regulación legal? ¿En qué se diferencian las llamadas libertades básicas de la libertad general ...cuya regulación por el Estado da lugar a un escrutinio de los tribunales para un propósito público válido ejercido con cierta indiferencia? ¿Qué nos enseña la especial naturaleza de las libertades básicas sobre el tipo de fines que están cualificados para limitarlas y sobre la grado de respeto que todavía les debemos cuando su limitación está justificada?
This book investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is ...a private law for interacting parties, and functionalists, who say that it is a public law serving the collective ends of society. Against both camps, this book proposes a synthesis of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the book exhibits this synthesis in each of transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, a single narrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactional law's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, and transactional law as a whole what is underdeveloped in public insurance. The end-point is the limit of what a transactional law can contribute to a life sufficient for dignity.
In this article, the author replies to critiques of his book, Constitutional Goods(Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo ...Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.
This short article responds to the five critiques of the revised edition of The Unity of the Common Law that appear in this issue of Critical Analysis of Law. Three themes emerge from this response. ...One is that private law’s autonomy is justified by the need for a sphere of atomism within the total public life sufficient for the dignity of the human individual. Another counters critiques of the possessive individualism upon which private law rests by arguing that its excesses are removed as the dignity in owning becomes integrated into the larger life sufficient for dignity. A third disputes the claim that transactional law’s unity is rendered utopian or defunct by the present disorder in civil society.
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