OAKESHOTT AND THE IMPOSSIBILITY OF PHILOSOPHICAL POLITICS

Abstract. Oakeshott offers a radical version of the thesis that philosophy cannot evaluate or recommend political ideas. We criticize each stage of his argument that practical life excludes philosophy's desire for ultimate truth and demands a distinctive form of reasoning. Believing that practice is not susceptible to philosophical guidance because it is composed of actions, subject to change and necessarily inconsistent and uncritical of assumptions, he exaggerates its contrast with theory. Moreover, he wrongly supposes that philosophy has no practical aspect, arguing that while all practical thought must be in terms of certain concepts, philosophy transcends those which it analyses. We contend that the distinctiveness of philosophy and practice does not imply they are separate; rather philosophy is a necessary part of any reasoned evaluation of political concepts.     

TRIAL COURTS' RESPONSES TO SUPREME COURT POLICY CHANGES

This is an exploratory study focusing on the response of federal district courts to Supreme Court changes in three policy areas: economic regulation, civil liberties, and criminal justice. An analysis of federal district court opinions published in the Federal Supplement before and after the Supreme Court decisions announcing the policy changes indicated that opinion-writing patterns of federal district judges changed in a manner consistent with the Supreme Court's new direction. Further study of the federal district courts' role in the policy process is recommended and suggestions for such research are made.     

IMPRISONMENT LENGTH AND POST‐PRISON EMPLOYMENT PROSPECTS

This study considers the relationship between imprisonment length and employment outcomes. The data are a unique prospective, longitudinal study of Dutch pretrial detainees (N = 702). All subjects thus experience prison confinement of varying lengths, although the durations are relatively short (mean = 3.8 months; median = 3.1 months). This contrasts with prior research that was limited to the study of American prison sentences spanning an average of 2 years. These data thus fill a gap in the empirical base concerning short‐term confinement, which is the norm in the United States (e.g., jail incarceration) and other Western countries. Using a comprehensive array of pre‐prison covariates, a propensity score methodology is used to examine the dose–response relationship between imprisonment length and a variety of employment outcomes. The results indicate that, among prison lengths less than 6 months in duration, longer confinement is largely uncorrelated with employment. In contrast, among spells in excess of 6 months, longer imprisonment length seems to worsen employment prospects.     

The Dual Nature of Law

The argument of this article is that the dual‐nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision‐making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non‐authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.     

Really Responsive Risk‐Based Regulation

Regulators in a number of countries are increasingly developing “risk‐based” strategies to manage their resources, and their reputations as “risk‐based regulators” have become much lauded by regulatory reformers. This widespread endorsement of risk‐based regulation, together with the experience of regulatory failure, prompts us to consider how risk‐based regulators can attune the logics of risk analyses to the complex problems and the dynamics of regulation in practice. We argue, first, that regulators have to regulate in a way that is responsive to five elements: (1) regulated firms' behavior, attitude, and culture; (2) regulation's institutional environments; (3) interactions of regulatory controls; (4) regulatory performance; and (5) change. Secondly, we argue that the challenges of regulation to which regulators have to respond vary across the different regulatory tasks of detection, response development, enforcement, assessment, and modification. Using the “really responsive” framework, we highlight some of the strengths and limitations of using risk‐based regulation to manage risk and uncertainty within the constraints that flow from practical circumstances and, indeed, from the framework of risk‐based regulation itself. The need for a revised, more nuanced conception of risk‐based regulation is stressed.     

Basic Rights and Democracy in Jurgen Habermas's Procedural Paradigm of the Law*

Abstract . A central element of Habermas's discourse theory of law is his procedural paradigm. This includes a procedural understanding of basic rights, which is supposed to resolve both the classical tension between basic rights and democracy and the problem of collision between basic rights. I try to show that the procedural paradigm can do the first only at the cost of inadmissible idealization. Under realistic conditions one can only attempt to institutionalize the tension between basic rights and democracy as rationally as possible. Also, the problem of collision of basic rights cannot really be solved by the procedural paradigm. What can be substantiated is merely a prima facie priority of participation in the process of public opinion- and will-formation over merely private activities. Whether this prima facie priority becomes a definite priority in a concrete case or group of cases depends on the weight of counterarguments, as to which the procedural paradigm is silent.