Law as an Enabling Device

Research output: Contribution to journalArticle

Abstract

To many, law may be perceived as nothing more than a restrictive device. To the legal scholar, however, law may be perceived as an enabling device, even where it restricts. Nonetheless, it would not be appropriate to maintain that every restrictive norm enables. A paternalistic norm may enable; a tyrannical norm by definition restricts. This exposition advocates the position whereby law can effectively be a device of freedom. Correspondingly, there cannot be freedom without law, even though the opposite is not necessarily true. Furthermore, law, as an enabling device, points to liberal legal theory. The classical statist model of liberalism, as compared to the more communitarian model of liberalism, is promoted, even though partial inroads to communitarian liberalism are made (especially where the State is an absentee). The model promoted is also the one which comes with rights and duties: it is of relative nature and makes allowance for a hybrid state of affairs, wherein anthropos is the carrier of rights but also, importantly, the fulfiller of duties. Law serves man; equally, man serves the law. The paper proceeds with the elaboration, exemplification and critical analysis of the above, based on relevant literature from legal, political and economic theory. Thereafter, certain practical and theoretical connotations of the proposed analytical model are considered in detail. The analysis thus takes into account classic legal theoretical matter and tests such matter against the operation of law in the domestic and the international sphere. For instance, the analysis will revert to the theoretical differentiation between norms, laws, rules and commands by explaining how such variable legal issues can be manifested in practical matters. In this respect, the leading example of the legal harmonisation thesis will be utilised in the manifestation of certain of the points made, especially considering that such a thesis has wide-ranging implications for the domestic and the international sphere.
Original languageEnglish
Pages (from-to)25-33
JournalInternational Journal of Law and Interdisciplinary Legal Studies
Volume3
Issue number2
Publication statusPublished - 31 Oct 2017

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© 2017 The Author | IJLILS 2017 © 2017 FLE Learning

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