The existing rights paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canadas territorial integrity and contribute to Canadas economic development.<p> In the past, courts allowed the act of state doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canadas territorial integrity, but does not shield the Crowns actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy.<p> The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhns description of a paradigm shift in the natural sciences. The rights paradigm is in a crisis with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm.<p> An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crowns claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a burden of only limited and subordinate rights. The fiduciary relationship rooted in the honour of the Crown will grow into a non-hierarchical relationship with reciprocal obligations.<p> Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.

This paper is mainly anchored in assemblies and parades handled by police agency¡¨. First of all, assemblies and parades are the basic human rights protected by our constitution. The purpose of the police¡¦s involvement in the handling of those activities is to safeguard citizens¡¦ exercise of their rights. Secondly, from analysis of practical cases and through verification of experimental activities and modification of theories, reasonable and proper principles of handling such activities can be submitted as a reference for policemen¡¦s law enforcement and education and training. Finally, the study discusses the contents and regulations of the Law of Parade and Demonstration. It also provides directions of modification of the law through theories and experiments in order to make the law more perfect, protect human rights granted by the constitution, and further inspire people¡¦s law-abiding spirit. From my practical experiences in handling assemblies and parades over the years in police organizations of basic level and this study, the author found that the cases of assemblies and parades in Kaohsiung City during the period from 2001 to 2005 were different in their types. Case-by-case analysis, examination of evidence and deductive method were adopted to examine if the police adhere to the principles of ¡§protecting lawful assemblies¡¨, ¡§banning unlawful assemblies, and ¡§imposing sanction against violence¡§, and if they take the positions of ¡§To rule by law¡¨, ¡§administrative neutrality¡¨ and ¡§strict enforcement of law¡¨ at the same time. If not, the results will turn out to be different. In recent years, people¡¦s political consciousness has been rising and the assertion of individual rights and interests has aroused more and more attention. Besides, the two-party system has almost taken shape in Taiwan. Consequently, assemblies and parades become normal in today¡¦s plural and diversified society. The police should know how to play the role of law enforcement and protector correctly. To achieve the goal, the policemen should accumulate their practical experiences and carry out case analysis continuously. By combining ¡§theories¡¨ with ¡§practices¡¨ together, this study reflects the advantages and disadvantages of the police in handling assemblies and parades at current stage, and point out the direction of amendment to the present Law of Parade and Demonstration. Finally, this study submits one set of concrete and feasible plan for the police agency to follow, and I hope that the plan will be helpful in handling assemblies and parades in the future.

Univ., Diss.--Heidelberg, 2006. / Literaturverz. S. [161] - 169.

This study deals with the quality of democracy, and its purpose is to examine which factors affect the varying levels of the quality of democracy in the stable democracies in the world. The research question posited in the study is: what explains the varying levels of the quality of democracy in the democratic countries in the world, and do political institutions matter? Theoretically, the quality of democracy is distinguished from other similar concepts employed in comparative politics, and what the quality of democracy stands for is clarified. The quality of democracy is defined in this study as: the level of legitimacy in a democratic system with respect to democratic norms such as political participation, political competition, political equality, and rule of law. In total, four dimensions of the quality of democracy are included that are considered to be very important dimensions of the quality of democracy. These dimensions are political participation, political competition, political equality, and the rule of law. To explain the variation in the quality of democracy, an explanatory model has been developed. The explanatory model consists of five different groups of independent variables: political institutional variables, socioeconomic variables, cultural variables, historical variables, and physical variables. Methodologically, a large-n, outcome-centric research design is employed and statistical analysis is used to examine what effect the five groups of independent variables have on the four dimensions of the quality of democracy. Empirically, the results show that cultural variables and political institutional variables outperform socioeconomic, historical, and physical variables in relation to their effect on the quality of democracy. Consequently, cultural and political institutional variables are the two most important groups of variables when explaining the variation in the quality of democracy in the democratic countries in the world. In relation to the other groups of variables, historical variables are slightly more important than socioeconomic variables when explaining the variation in the quality of democracy. The physical variables constitute the group of variables that has the least importance out of the five groups of variables when explaining the variation in the quality of democracy. In summary, the findings from the study show that the best way of increasing the level of the quality of democracy may be to choose political institutions such as parliamentarism as the executive power system and a proportional system as the electoral system. To put this clearly, to increase the possibility of democratic countries achieving a high level of the quality of democracy they should avoid majority electoral systems and presidential or semipresidential executive systems.

The South African education system has been undergoing a process of transformation and democratisation. An historical overview of democracy in the South Africa education system confirms that the system had developed to become a highly centralised and bureaucratic system during the twentieth century, but it was transformed in 1996 to afford a greater degree of parental participation through local school governing bodies. Democracy is founded on a belief in individual rights, equality, and self-government by the majority of the people. The moral authority of the majority is based on the notion that there is more enlightenment and wisdom between many than in a single man. However, the power of the majority is always limited by the prerequisite of the rule of law and the implicit requirements of legality and justice. This implies that bureaucratic or undemocratic exercise of power by the majority or any person, including the state, would be contrary to the requirements of legality and democracy. An overview of the theories of democracy explains the complexities of the different orientations and ideological approaches to democracy. Critiques of democracy have identified an elitist, inegalitarian, and antiparticipatory core in liberal democracy. The sensible approach to these weaknesses of liberal democracy is to integrate the best features of the various theories of democracy towards a workable solution to manage the systemic conflicts. This includes the formal application of checks and balances and the substantive adjustment of the executive, legislative and judicial practice to maintain a harmonious equilibrium between equality and liberty. The theory of deliberative democracy suggests an additional way to improve substantive democracy. There is an inextricable link between democracy, education and the law. The South African Constitution provides for representative (political) and participatory democracy, as well as for the enshrinement of fundamental rights such as the right to basic education. In addition, the education legislation and policies contain numerous provisions that prescribe and necessitate democratisation of the education system. However, the empirical results of the study show that a number of controversial bureaucratic practices and a tendency towards increased centralisation of the system, constrain democratic school governance. The most prominent undemocratic practices in the system inter alia include: the over-politicisation of schools by the dominant teachers’ union; the bureaucratic appointment of educators; the interference by teachers’ unions with the appointment of educators, the bureaucratic imposition of English medium language policies on Afrikaans schools; and • the ambivalent attitude towards inclusive education. An investigation into the knowledge levels of senior education administrators, school principals and school governing chairpersons, which participated in this study, revealed that their knowledge of participatory democracy and Education Law was superficial. This ignorance of these stakeholders in education compounds the problem of effectively administering, managing and governing schools in a democratic manner. Conclusions drawn from the evidence of this study suggests that certain of the encumbrances to democracy in schools and the system can be attributed to systemic weaknesses, as well as to misconceptions and the misapplication of democratic principles. Finally, the study proposes two models to improve democratic school governance. The first model suggests a theoretical framework for improving the power relations, knowledge, civic attitudes and democratic values. The final model, which is based on the first theoretical model, proposes that Area School Boards be statutorily established to govern defunctive schools and that deliberative forums should be established and implemented within the organisational hierarchy of the education system. / Thesis (Ph.D. (Education))--North-West University, Potchefstroom Campus, 2009

The South African education system has been undergoing a process of transformation and democratisation. An historical overview of democracy in the South Africa education system confirms that the system had developed to become a highly centralised and bureaucratic system during the twentieth century, but it was transformed in 1996 to afford a greater degree of parental participation through local school governing bodies. Democracy is founded on a belief in individual rights, equality, and self-government by the majority of the people. The moral authority of the majority is based on the notion that there is more enlightenment and wisdom between many than in a single man. However, the power of the majority is always limited by the prerequisite of the rule of law and the implicit requirements of legality and justice. This implies that bureaucratic or undemocratic exercise of power by the majority or any person, including the state, would be contrary to the requirements of legality and democracy. An overview of the theories of democracy explains the complexities of the different orientations and ideological approaches to democracy. Critiques of democracy have identified an elitist, inegalitarian, and antiparticipatory core in liberal democracy. The sensible approach to these weaknesses of liberal democracy is to integrate the best features of the various theories of democracy towards a workable solution to manage the systemic conflicts. This includes the formal application of checks and balances and the substantive adjustment of the executive, legislative and judicial practice to maintain a harmonious equilibrium between equality and liberty. The theory of deliberative democracy suggests an additional way to improve substantive democracy. There is an inextricable link between democracy, education and the law. The South African Constitution provides for representative (political) and participatory democracy, as well as for the enshrinement of fundamental rights such as the right to basic education. In addition, the education legislation and policies contain numerous provisions that prescribe and necessitate democratisation of the education system. However, the empirical results of the study show that a number of controversial bureaucratic practices and a tendency towards increased centralisation of the system, constrain democratic school governance. The most prominent undemocratic practices in the system inter alia include: the over-politicisation of schools by the dominant teachers’ union; the bureaucratic appointment of educators; the interference by teachers’ unions with the appointment of educators, the bureaucratic imposition of English medium language policies on Afrikaans schools; and • the ambivalent attitude towards inclusive education. An investigation into the knowledge levels of senior education administrators, school principals and school governing chairpersons, which participated in this study, revealed that their knowledge of participatory democracy and Education Law was superficial. This ignorance of these stakeholders in education compounds the problem of effectively administering, managing and governing schools in a democratic manner. Conclusions drawn from the evidence of this study suggests that certain of the encumbrances to democracy in schools and the system can be attributed to systemic weaknesses, as well as to misconceptions and the misapplication of democratic principles. Finally, the study proposes two models to improve democratic school governance. The first model suggests a theoretical framework for improving the power relations, knowledge, civic attitudes and democratic values. The final model, which is based on the first theoretical model, proposes that Area School Boards be statutorily established to govern defunctive schools and that deliberative forums should be established and implemented within the organisational hierarchy of the education system. / Thesis (Ph.D. (Education))--North-West University, Potchefstroom Campus, 2009

The terrorist attacks on September 11, 2001, resulted in dramatic legal changes in the U.S. As part of its investigation into the attacks, the U.S. Government detained approximately 5,000 "aliens" from predominantly Muslim countries. These detentions were characterized by minimal, and sometimes non-existent, habeas corpus and due-process protections. During times of crisis, care should be taken that panic not be allowed to prevail over long-cherished constitutional values. This thesis examines Government actions in light of constitutional principles to examine the larger question of whether the War on Terror detention practices have permanently undermined the rule of law in the U.S. / The factual and legal scenarios in this area have been changing at a rapid rate, and they will certainly continue to change. Those constant changes have presented a special challenge in writing this thesis. The facts and legal scenarios described herein, therefore, are current as of January 31, 2005.

As a mode of intervention in which the UN assumed direct authority over disrupted states, transitional administrations represent unique examples of ambitious state-building projects. This thesis investigates the apparent failure of transitional administrations to establish the rule of law in Cambodia, Kosovo and East Timor. It identifies nine explanatory factors which are tested against each case study. In addition, it seeks to enhance conceptual understandings of the UN???s state-building agenda and to add to empirical studies regarding attempts by external actors to establish the rule of law in disrupted states. Three findings emerge. First, in each case, UN transitional administrations failed in each of the following ways: to make the best use of their mandate; to establish effective state justice institutions; to build local commitment to the rule of law as a value system; to promote social relationships supportive of the rule of law; to ensure sufficient state capacity post-intervention; to maintain adequate levels of security; to address the existence of informal justice structures; to deal with the legacies of the past; and to ensure an adequate level of mission performance. Of these, establishing effective state justice institutions, building local commitment and addressing informal justice structures proved most crucial. Second, the state-based ???enforcement??? approach adopted by transitional administrations proved ineffective. Enacting laws and establishing coercive state structures such as judicial, police and prison services were critical to, but could not be equated with the rule of law. This approach did not account sufficiently for the importance of entrenched informal justice institutions, of the voluntary consent of local actors, or of appropriate institutional design choices. As a result, it did not offer real solutions to real problems faced by local actors. Finally, the UN failed to consider fully how to create an enabling ???space??? in which internal processes of change could occur, to engage appropriately with local actors, to overcome the tyrannies of truncated deployment, or to address these issues at the ???front-end??? of the mission. This ???entry without strategy??? approach to state-building seriously undermined the UN???s ability to establish the rule of law, as the self-declared touchstone of its state-building agenda.

O presente trabalho analisa como o economista austríaco Friedrich August von Hayek estrutura sua teoria da justiça, identificando a realização do ideal de justiça numa sociedade livre com a vigência do Estado de Direito, ou seja, do governo das normas gerais de conduta justa, que deverão ser aplicadas sempre visando a igualdade formal (isonomia). Ainda, discute os motivos pelos quais o autor considera que a liberdade individual só poderá efetivamente florescer em uma ordem espontânea, que funciona baseada na concorrência, a qual só poderá se manter onde vigore o Estado de Direito e, portanto, haja justiça formal. / The present paper analyzes how the economist Friedrich August von Hayek structures his theory of justice, identifying the accomplishment of the ideal of justice in a free society with the Rule of Law, that is to say, in the government of rules of just conduct, which must be applied always aiming at the equality before the law (isonomia). Besides, this paper discusses the reasons why the author considers that liberty can effectively flourish only in a spontaneous order that performs based on competition, which will be maintained where the Rule of Law stands and, therefore, the formal justice is present.

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