Contents of Volume 4

Conversations

Roger Cotterrell, Is Law Just a Means to an End

This paper examines the claim that law, in complex modern societies, is merely a tool or instrument of private, sectional or governmental purposes. To put matters in perspective, it considers ways in which shared traditions, common values, emotional allegiances and convergent individual interests have been thought, by legal and social theorists, to be foundations for law - the basis of a 'common good' which law serves. The paper argues that these theoretical views remain instructive. In contemporary multicultural societies there are diverse social foundations on which law's authority and effectiveness depend. The conception of law as 'a means to an end' is not adequate to characterise these foundations.

Ofer Raban, Law and the Common Good

In this piece, Ofer Raban takes issue with the claim advanced in a recent book by Brian Tamanaha that the Rule of Law requires that all our laws advance the common good (rather than the interests of any narrow faction). That claim, says Raban, is out of date with modern pluralistic sensibilities, and with our modern understanding of law and the legislative process. But the fact that the law need not always advance the interests of society as a whole, and may therefore be used as a tool for the advancement of some at the expense of others, does not mean that the law itself is not always a common good- for the Rule of Law means, first and foremost, the rule of reason and rationality; and passing our social regulations through the prism of reason and rationality is an indisputable common good.

Articles

Ron Harris, State Identity, Territorial Integrity and Party Banning: The Case of a Pan-Arab Political Party in Israel

The banning of political parties in democracies, something which seemed to be a matter of the past, has reemerged in recent years in many countries, from Germany to Turkey, from Britain to Israel, and from Spain to Latvia. The present article tells the story of an encounter in the years between 1959 and 1965, between the pan-Arab national movement El Ard ad the Israeli executive and judicial branches. According to the author's interpretation of its history, El Ard was what he calls a "third-generation party" based on his categorisation of party objectives and means. It sought to alter the identity of Israel in a radical manner. Yet it was not associated explicitly with organisations or states that aimed at destructing Israel or altering its identity as a Jewish state. The article elaborates on the question of how to interpret the objectives of a party; it grapples with the question of what constitutes support for terror and for the use of violence; it raises issues related to the nature of separatism, irredenta, and pan-nationalism; it problematises the test for adherence to democratic principles, and it deals with the effects of emergency and post-war situations. The case study places in thick context, with ample nuances, the dilemmas and doubts involved in the ban of political parties, which have recently came to preoccupy many governments and courts.

Abhayraj Naik, Sarendib's Sorrow: Sri Lanka's Continuing Conflict

In this article, the author studies the conflict in Sri Lanka and identifies and describes two sources of its intractability: fractured fronts and maximalist goals. The article seeks to reveal that while the Sri Lankan government's recent military onslaught against the LTTE has been surprisingly successful, history is clear that a meaningful solution to the conflict in Sri Lanka will be found not on the battlefield but in the hearts and minds of the Sri Lankan people. The causes of the conflict are several - an analysis of these sources of intractability involves both a backwards-looking appreciation of the events, perspectives and trends that fractured a nation as well as a forward-looking transformative outlook towards a shared deliberative reality. The author believes that while the current military success against the LTTE coincides with a wave of collective Sri Lankan anguish at the country' grim predicament. For several reasons, the present represents a potential moment of critical realignment in Sri Lanka. An analysis of the institutional, historical and ideological bases of the conflict indicates different channels that the public sphere will have to simultaneously destroy and create if such a critical realignment is to be serendipitously realized.

Short Articles

Ali M. Abrar, Into the Breach: The Legislative Function of  Taboo

Taboos are often viewed with suspicion by modern eyes. The very word "taboo" evokes a sense of unfreedom, of limitation. Indeed, when one thinks of now-extinct taboos, the repressive and reactionary nature of taboos is clearly displayed. This, however, is not an argument for the dismantling of all taboos. There are many aspects of social life that a community may wish to govern but cannot through the regular legislative channels. In many cases, such governance might be viewed as an unjustifiable infringement on liberty. There are, however, some cases in which a taboo may be justified because of the protection it offers against a real harm. This article will explore the idea of informal social legislation through taboo, and will attempt to rescue (some) taboos from the position of disfavour they currently find themselves in. In the process, this article will establish criteria by which justifiable taboos may be separated from the unjustifiable.

Law's Translations

Priyadarshini Kedlaya, Strengthening Civil Society: Lessons from the Consumer Forum at Basrur in Karnataka

Necessitated by the inherent limitations of the market and failures in governance by the State, the search for alternative solutions has witnessed the emergence of the sphere of civil society. Organisations of ordinary people have taken up the task of ensuring better governance through their interactions with both the state and the market. The Consumer Forum at Basrur is a civil society organisation that seeks to build capacities amongst citizens and empower them to demand greater accountability from both the government and private players. Its key tool is effective communication, particularly through letter-writing, wherein the Forum guides the consumers in establishing contact with suppliers and officials and finding solutions to their problems in a cost-effective and transparent manner. In this paper, the author studies the methodology and work of this Forum in order to assess the possibility of replicating the model.

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