Separation of Powers in Australia

This article argues that the nature and character of separation of powers in Australia has been fundamentally shaped and defined by the High Court, which chose a Blackstonian, common law conception of separation of judicial powers in preference to the principles elaborated in The Federalist and articulated in the American Constitution. But the Court's recent jurisprudence, including its admission that it makes the law, has presented unprecedented theoretical and political challenges to the concept of separation of judicial power in Australia, including a transformation in the role of the attorneygeneral, the creation of new institutions and a move towards an American conception of checks and balances. Thus this article suggests that the Court continues to exercise a profound influence on the formulation of separation of powers in Australia.     

斯巴达“监察官”与政治分权

深刻认识古代斯巴达的"监察官"历史价值必须要有新的视角。古典时期斯巴达的监察官主要代表了平民的利益,它的职权以监督、司法权为主,行政、宗教、军事和立法等权力为辅。监察官的建立推进了斯巴达的政治分权,增加了斯巴达政治的民主成分。     

John Owen and John Locke: confessionalism,doctrinal minimalism,and toleration

ABSTRACT

The present article compares John Locke’s and John Owen’s approaches to toleration. Owen, a towering figure of the Puritan revolution and a Protestant scholastic whose work is still the object of significant appreciation in Reformed circles, was Locke’s dean during his time as a student in Oxford. There is a number of treatises on toleration by Owen, especially during the mid-1640s, and later again after the Restoration, in his role as a nonconforming divine. There has also been some speculation regarding the involvement of both Owen and Locke in the circle around Shaftesbury. Together with their writings against Parker and Stillingfleet, this would seem to draw Owen and Locke quite close to each other. Both authors are, however, divided in their approach to Christian doctrine: Owen represents classical confessionalism and Locke modern doctrinal minimalism. The article explores the ways in which these oppositional approaches to doctrine relate to their views of toleration.     

John Locke on Native Right,Colonial Possession,and the Concept of Vacuum domicilium

The early paragraphs of John Locke’s Second Treatise of Government (1690) describe a poetic idyll of property acquisition widely supposed by contemporary theorists and historians to have cast the template for imperial possessions in the New World. This reading ignores the surprises lurking in Locke’s later chapters on conquest, usurpation, and tyranny, where he affirms that native rights to lands and possessions survive to succeeding generations. Locke warned his readers that this “will seem a strange doctrine, it being quite contrary to the practice of the world.” His doctrine of native right is equally strange to recent scholars who see in Lockean theory the ideological prototype for England’s colonial expropriation in the “vacant lands” of North America. This interpretation, dignified by the elusive principle of vacuum domicilium, is considerably weakened when Locke’s arguments are placed in the historical context of the sixteenth and early seventeenth-century English colonial experience. Locke’s Second Treatise, with its literary flourish of a vast and idyllic state of nature, was written in the full appreciation of Amerindian agriculture, its established populations, the acknowledgement of native property rights, and the policy and practice of purchasing land from the native inhabitants.     

战后日本三权分立问题研究

战后,日本通过《日本国宪法》确立了资产阶级民主制度的三权分立之原则和形式,但由于世界范围内的趋势、日本政体的问题和自民党的"一党独大"等原因,遂造成三权失衡即行政权急剧膨胀和立法权与司法权遭到严重削弱诸问题。     

John Marshall,McCulloch v. Maryland,and the Concept of Constitutional Sovereignty

Scholars have long debated John Marshall's intent in his famous opinion in the case of McCulloch v. Maryland (1819). Despite long-standing disagreement concerning the character of Marshall's nationalism and federalism, interpretations of the opinion typically rely on an incomplete picture of the case. This analysis revisits McCulloch to illustrate his support for national and state sovereignty as defined in the Constitution. It then moves beyond the opinion itself to examine Marshall's defense of McCulloch in a series of newspaper essays he authored in the aftermath of the case. Situated alongside the McCulloch opinion, these essays show that Marshall was as much concerned with defending the sovereignty of the Constitution as he was with adjudicating political authority between national and state governments.     

Locke on representation in politics

This article contextualises Hegel's writings on international order, especially those concerning war and imperialism. The recurring theme is the tragic nature of the struggles for recognition which are instantiated by these phenomena. Section one examines Hegel's analysis of the Holy Roman Empire in the context of French incursions into German territories, as that analysis was developed in his early essay on ‘The German Constitution’ (1798–1802). The significance of his distinction between the political and civil spheres is explored, with particular attention being paid to its implications for Hegel's theory of nationalism. The second section examines Hegel's development of the latter theory in The Phenomenology of Spirit (1807), stressing the tragic interpenetration of ‘culture’ and intersubjective recognition. A recurring theme here is the influence of this theory on Hegel's interpretation of Napoleon's World-Historic mission, as that was revealed in his contemporaneous letters. Section three traces the tragic dynamic underlying the discussion of war between civilised states in The Philosophy of Right (1821). Section four examines three other types of imperial action in Hegel's mature writings, particularly The Philosophy of History (1832). These are relations between civilised states and culturally developed yet politically immature societies; colonial expansion motivated by capitalist under-consumption; and conflict between civilised states and barbarous peoples. It is concluded that it is misleading to claim that Hegel glorified conflict and war, and that he did not see domination by ‘civilised states’ as the ‘final stage’ of World History.