Title: Deconstructing Principles Foundational to the Paradox of Freedom - A Comparative Study of United States and German Subversive Party Decisions
Abstract: Over half a century ago, the realists exposed the subjective and indeterminate nature of traditional analysis. Further investigation by contemporary realists has not been a source of comfort to those interested in keeping alive the impression that we are governed by the rule of law rather than by subjective pronouncements. Deductive reasoning has been rejected because the syllogistic logic it requires is based on premises that are created rather than given. Inductive reasoning was found to be inappropriate since decisions are not solely the result of observation and are based on legal rules and personal judicial judgment rather than on empirical evidence alone. Analogical reasoning was questionable since the finding of similarity between any two fact patterns is more psychological than logical.In reaction to the realists' view that analysis is predicated on subconscious psychological processes, the community has attempted to construct fundamental reasons of principle on which to base men's actions- which should cut across men's uncontrolled instincts and interests. Thus, the same concern about arbitrary ethical choice in decision making that caused the early positivists to stress legislation as the primary source of law has prompted recent efforts in scholarship toward finding objectifying principles that will limit the arbitrariness of judicial decision makers when the result is not dictated by statute or clear precedent.The purpose of this paper is to review some of these recent developments of linguistic theory and to indicate and demonstrate their possible effects on analysis through the use of the comparative method. The comparative method, which shows different cultures coming to different solutions for a problem, will be used to illustrate the implications of recent linguistic theories on the issue of objectifiable law and, thus, on analysis. After recent developments in linguistic theory are summarized, three approaches to the regulation of subversive political parties in the United States and the Federal Republic of Germany will be presented. This subject has tested the nature of certain general principles underlying each system, and has been analyzed in terms of a paradox of freedom. Put simply, the paradox is whether democracy is justified in denying political rights and privileges to those who, once in power, would be undemocratic. A conventional analysis will be followed by a structuralist analysis. Finally, a deconstructionist approach to the same material will aid in arriving at a fuller understanding of the presuppositions and unspoken premises of decision makers in the American and West German systems.
Publication Year: 2011
Publication Date: 2011-10-04
Language: en
Type: article
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Cited By Count: 1
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