Law - new material (51)
01 January 2005
The Freedom of Information Act 2000 explained, Guy Vassall-Adams. Legal Action, January 2005, pp. 15-19. The FIA 2000 received the royal assent in November 2000 and came fully into force in January 2005. This article explains the new Act's main provisions and gives examples of how it is likely to work in practice.
State of Exception, Giorgio Agamben. University of Chicago Press (ISBN 0-226-00925-4) US$ 12. Agamben draws on the writings of Carl Schmitt and Walter Benjamin to examine the extent to which the rule of law has been replaced by a permanent "state of exception...at the limit between politics and the law." The book contains a useful overview of the development of "emergency powers" within the legal systems of Western democracies, and examines the use of the "fictitious" emergency as a basis for the suspension of the rule of law. Agamben contends that the US Patriot Act and similar legislation in the UK and Europe attempt to "produce a situation in which the emergency becomes the rule", the dominant paradigm of government in contemporary politics.
The Nightmare and the Noble Dream - A Life of HLA Hart, Nicola Lacey. Oxford University Press 2004, pp392 (ISBN 0-19-927497-5). Useful and well-researched biography of Herbert Hart, Professor of Jurisprudence at Oxford, and probably the most influential legal theorist in the UK in the post-war period. Hart, in his The Concept of Law and subsequently, drew on the works of JL Austin and Ludwig Wittgenstein to propound a theory of law as human artefact, deriving its authority not from God or some metaphysical conception of "natural law", but from its accordance with an agreed criteria for recognition, such as parliamentary enactment or judicial precedent. Hart's originality was in arguing that legal rules and moral standards were distinct - that, for instance, the legal prohibition against killing is not the same as, and derives its validity in a different way from, the moral injunction against killing. Lacey's biography recalls Hart's debates with Devlin, wherein he contended that democratic states are not entitled to enforce moral standards for their own sake, and his interventions in support of the decriminalisation of homosexuality and the legalisation of abortion. At a time when we are best by a government which insists on law as a means of moulding individual behaviour in all aspects of everyday life, it is useful to be reminded of Hart's resistance to political paternalism and his clearminded utilitarianism.
Using FoI, Maurice Frankel. Free Press no.144 (January-February) 2005. Frankel provides a guide to using the UK Freedom of Information Act that has recently come into force. He details the correct method of applying for information under the act and offers advice as to how to best yield results. He also explains which information is exempt from disclosure, and suggests a course of action should you feel that the body you have applied to has improperly withheld information from you.