Nature of Logic Essay -- Philosophy Philosophical Logic Thinking Essay

Nature of Logic   Ã‚  Ã‚  Ã‚  Ã‚  The nature of logic and critical thinking go hand in hand. A person must use logic during the critical thinking process. However, each person’s logic may depend on his/her perceptual process or their perceptual barriers. No person can ever fully understand their own perceptual process in its entirety. The reason being is that no person knows all of their perceptual barriers. Without knowing all of the barriers, how is a person able to determine the process in which they perceive things? While a person may know or assume some of their perceptual barriers, some of their perceptual barriers will never be uncovered because they may not know they even exist. They may not even know that they exist because the perceptual barrier is so strong that it will never be known to them, that it, in fact, is a barrier at all. This alone could be a potential barrier.   Ã‚  Ã‚  Ã‚  Ã‚  Aside from not being able to identify all of a person’s perceptual barriers, each situation that comes about where a critical thinking process may be utilized can call for a different process. For example, a person may use an entirely different perceptual process while at their place of employment than they would in their home. Even then a person may utilize a different process depending on the situations that occur on any given day. However, the way we think can be determined by the way we were raised and the way we currently are living. Many factors come into play that can cause percept...

Preliminary Ruling under Article Essay

Question 1. EC legislation and the national legislation of the Member States were integrated by the European Community Treaties. As such the national courts act in accordance with Community law and refer cases to the European Court of Justice. National judges play a key role in implementing Community law in their Member States. The preliminary reference system thus enables the national courts to comply with Community law and maintain cooperation with the European Court of Justice. Under this system the national courts refer cases for a preliminary ruling to the ECJ, in accordance with the provisions of Article 234 EC . Article 234 EC contains the jurisdictional requirements for a preliminary reference. First, the referring institution has to be a court or tribunal of a Member State. Second, the referral should be in respect of Community law’s validity or interpretation and finally, the referring court or tribunal should determine whether at all there is a need to deliver a judgment, by the ECJ. In Bosman it was opined by the Advocate General Lenz that the ECJ can refuse to consider a preliminary ruling request, if such a request apparently bears no relation to the main action . The European Court of Justice is an autonomous body that is independent of any Member State or institution of the European Union. The major function of the ECJ is to interpret the Community Treaties and Community law in accordance with the spirit of the EU, and to implement the EC law, throughout the EU. Therefore, the ECJ shoulders the responsibility of uniformly applying the EC law in all Member States. It constitutes the judicial pillar of the EU . While hearing cases, if a conflict arises between the national legislation and the EC law, with regard to the application of the Community law; the national courts should not declare the EC law to be inapplicable. It is the duty of the ECJ to resolve such situations through its case law. Article 234 EC contains the procedure to be adopted when national courts refer cases to the ECJ for a preliminary ruling. A wide range of jurisdictional requirements have to be met by the ECJ in order to give a preliminary ruling. However, the ECJ can refuse to entertain a preliminary reference if it is satisfied that Community law is not invoked in these referred cases . In the Meilicke case, the issue was the right of shareholders to obtain information from the company management, as per the provisions of Directive 77/91/EEC. The Directive requires certain safeguards to be implemented by the Member States, so as to protect the interests of shareholders and others. The Member States have to act in accordance with the second paragraph of Article 58 of the EC Treaty. The national court referred the case to the ECJ on the compatibility of the German Aktiengesetz with the Directive with regard to the process of forming public limited liability companies, their maintenance and changes in their share capital . The national court was required to interpret these safeguards in accordance with the Second Directive. The ECJ keenly looked into the facts of the case. Its objective was to determine whether the German legislation, in the context of treating certain cash contribution preceded or followed by the company’s transactions of payment of amounts to shareholders, so as to offset the debts of the company to the shareholders or subscribers, violated Community law. The national court had held that Community law had been violated, because these amounts had been in the form of disguised contributions in kind . However, the ECJ refused to respond to the referral, as it felt that it would be exceeding the scope of its jurisdiction . The underlying principle involved is that the national courts have to refer novel and subtle questions, regarding the application and interpretation of EC law, while making a reference for a preliminary ruling. Subsequently, the ECJ would develop new case law, which would serve as a guideline to national judges and other legal professionals in the EU. National courts are expected to develop a pan European perspective and thereby contribute to the integrity of the Union. As such the ECJ does not compel the national courts to refer cases for a preliminary hearing. Though, the ECJ cannot force national courts to submit cases for preliminary reference, Article 234 EC imposes such a requirement in some cases. In some other cases it requires national courts to directly refer the cases to the ECJ by suspending the cases in the first instance itself . Article 234 EC differentiates between lower courts and national courts of last instance. The lower national courts have discretion, whether to make a reference or not. The national courts of last instance are obliged to refer cases for preliminary reference, if the interpretation of Community law was such that referral was warranted. Most of these cases originate in the lower national courts. Hence, they possess the discretion to refer the cases to the ECJ. The courts of last instance are under an obligation to make such a reference, however, they possess some discretion in this matter and this has been specified in Article 7 EC . If a national judge has to deal with cases in which the validity and applicability of the EC law is challenged, or if the application of EC law is argued to be illegal; then the national judge is under an obligation to make a referral to the ECJ for a preliminary reference. However, national judges are not competent to declare EC law invalid or unlawful. This is because, if a provision of EC law were to be declared as unlawful, then its application would have to be declared invalid in the entire EU. Therefore, it is unacceptable to declare a provision of the EC law invalid in a particular Member State; while it is valid in other Member States, without any dispute or conflict with national legislation . In the Foto – Frost case, the ECJ held that the national courts are under an obligation to refer questions regarding the applicability and validity of EC law to it. The ECJ held that national courts could only consider the applicability and legality of Community legislation. A national court cannot declare that a piece of Community legislation is invalid. Hence it only the ECJ that can invalidate Community legislation or an act of an EC institution . In Gaston Schul Douane-expediteur and International Air Transport Association the ECJ reiterated that the national courts were under an obligation to seek a preliminary reference from it. In Gaston, ECJ ignored the subject matter of the case and only considered the preliminary reference made by the national court. Afterwards, the ECJ held that the referral had been incorrect, because in an earlier decision on a similar subject, it had given the same decision, due to the fact that a specific piece of EU legislation would be declared invalid. Question 2 [a] The Employment Tribunals are competent to refer cases, under Article 234 EC, to the ECJ, whenever a clarification is needed regarding an EC Directive. This is exemplified by Coleman . In this case it was held that the ET was well within its powers to make a referral to the ECJ. This is provided for in Rule 58 of the ET Rules of Procedure 2004. Question 2[b] A disciplinary committee is neither a court nor a tribunal. Therefore, it is precluded from referring to the ECJ for a preliminary hearing. Moreover, a disciplinary committee, though a quasi – judicial body, is all the same dependent on the administrator; hence, the   ECJ will not accept a preliminary hearing referral from it. This is on the basis of the ruling in Corbiau . Question 2 [c] The Appellate Court had deemed the issue to be irrelevant and unarguable and consequently, unfit to be referred to even the House of Lords. Therefore, the issue is definitely not to be referred to the ECJ.   In the Max Mara Fashion Group case, no questions had been submitted for a reference. Further the case was so ambiguous that the ECJ refused to have anything to do with it. It was also unclear as to why the case had been sent for reference and there were no provisions of EC law that had been violated . Question 2 [d] The House of Lords need not refer to the ECJ, because it is fully convinced that it has comprehended the piece of legislation under consideration. Since, there is no breach of EC law by the national law, nor is there any difficulty in interpreting EC law, there is no necessity to approach the ECJ for a preliminary reference. Question 2 [e] In the Nolle case, the ECJ held that a referral would not be entertained, if its purpose was only restricted to fact finding . As such the ECJ requires a verification of all the facts before filing a reference with it. Moreover, the Home Office is not a judicial body. Therefore, the Home Office cannot refer to the ECJ, in order to ascertain whether the Iranian student is to be deported or not. Bibliography Case 314/85, Foto-Frost v Hauptzollamt Là ¼beck-Ost (1987) . Case C – 16/90 Nolle v. Hauptzollamp Bremen – Freihafen (1991) ECR I – 5163. Case C-83/91, Wienard Meilicke v ADV/ORGA FA Meyer AG, [1992] ECR I-4871. Case C – 24/92, Corbiau v. Administration des Contributions, (1993) ECR I – 1277. Case C-307/95 Max Mara Fashion Group (1995) ECR I-5083. C – 415/93 Bosman v UEFA (1995) ECR I – 4921. Case C-461/03, Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit, (2005). Case C-344/04, R (International Air Transport Association and European Low Fares Airline Association) v Department for Transport, (2006). C – 303/06, S. Coleman v. Attridge Law, Steve Law, (2006). The Relation Between National Courts and the European Court of Justice in the European Union Judicial System: Preliminary Ruling Regimes According to Articles 234 EC, 68 EC, and 35 EU. February 2007. 3 February 2008.

Democracy and Bureaucrary Are Incompatible - Free Essay Example

Sample details Pages: 6 Words: 1846 Downloads: 4 Date added: 2017/09/19 Category Politics Essay Type Argumentative essay Tags: Bureaucracy Essay Population Essay Did you like this example? DEMOCRACY AND BUREAUCRARY ARE INCOMPATIBLE, DISCUSS USING ILLUSTRATIVE EXAMPLES. The relationship between democracy and bureaucracy has generated much debate amongst scholars. Democracy is defined as a political system which supplies regular constitutional opportunities for changing the governing officials and the social mechanism which permits the largest possible part of the population to influence major decisions by choosing among political contenders for political office. Abraham Lincoln as cited in Haralambos and Holborn (1995) defines democracy as the government of the people by the people and for the people. Bureaucracy is defined by Schaefer (2003) as a component of formal organisation in which rules and hierarchal ranking are used to achieve efficiency. The focus of this discussion is to reflect to a greater extent the incompatibility that exist between democracy and bureaucracy Democracy emanated from western countries as a movement that clamoured for equality, f reedom of speech and expression. It came into being mainly after Second World War where many peoples rights were stripped off. Democracy came to restore individual dignity and popular participation. Decision making under the banner of democracy would mean that all involved parties should have informed consent on issues that directly affected them. Bureaucracy is a brain child of Weber who asserts that it’s an organised way of running an organisation. An organisation contains structures which should be followed in their order of importance. This means that, in decision making, relevant authorities should make decisions and in the event that they feel incapacitated to do that, they approach a higher office. There is chain of command and top down approach in communication which represents a hierarchy of authority. Haralambos and Holborn(1995), People in this hierarchy are paid and are full time officials who form a chain of command. A bureaucracy is concerned with business of administration with controlling, managing and coordinating a complex series of tasks. Bureaucracy represents oligarchy, rationality and separation of ownership from control. Democracy and bureaucracy coexist in society but their compatibility is questionable, they seem to be two conflicting views which exist in one society. The conflict perspective theorists are of the view that bureaucracy and democracy are much incompatible. Bureaucracy is inevitably a representative of the interest of the minority which is a direct opposition of democracy, which focus on majority rule and freedom of all. Bureaucracy state apparatus can be viewed as a specific creation of capitalist society with the roles of manipulating and turning the majority into proletariats. Lenin, as cited by Haralambos and Holborn (1995), clearly puts that western parliaments where â€Å"mere talking shops† while the real work of government was conducted behind closed doors by the state governing bureaucra cy therefore the state is an organ of class rule, an organ for the oppression of one class by another and hence cannot operate hand in glove with democracy. Hopes for truly democratic organisations in a communist society can be dismissed as mere illusions. According to Robert Michels 1876-1936 as cited in Haralambos and Holborn(1995), in his study of European socialist parties and trade unions, the organisations which had the aim to overthrow the capitalist state and create a socialist society based on democratic principles was not the resemblance of what actual happened. It was a mere duplication of the capitalist bureaucracy which is not very compatible with democracy. As supported by Jonson (1989) socialist states like the former Soviet Union, the state power was used to maintain wealth, power of government and military leaders at the expense of the wishes of the people, there was basic conflict between government and the people thereby compromising on democracy. Just like in the authoritarian capitalists government the state supports the interests of capitalists irregardless of having formal positions in government, all this suppress the will of the people. Therefore, bureaucracy is not compatible with democracy in such governments where the wishes of the people do not take paramount importance. It can be argued that organisation or bureaucracy is death knell of democracy and hence not compatible. Moreso, direct participation by large number of people in the running of an organisation is in practice impossible. Apart from the practical difficulties of assembling thousands of people, direct involvement in decision making will be more cumbersome and time consuming that nothing will get done. Since direct democracy is impractical, it can only be replaced by a form of some representative system, whereby delegates represent the mass and carry out its will. Hurd et al (1991) laments that these political elected leaders want to amass wealth at the exp ense of the people, just because of their positions. Leaders at the highest authority of the bureaucracy can appoint other leaders on basis of ethnic background, nepotism and favour hence the wishes of the people wont be respected because the leaders would be representing their own selfish needs. As a result, bureaucracy can not be compatible with democracy if the wishes of the majority are ignored. The only thing they will do is to come back with feedback and alerting the mass on their course of action in the future. For example the president went to represent Zimbabwe to the UN summit recently and told the Zimbabwe’s story without prior consultation with the people because of the hindrance caused by bureaucracy. The effective operation of the organisation requires a specialised division of labour that necessitates control and coordination from the top. The result is rigorously defined and hierarchical bureaucracy. Haralambos and Holborn (1995), postulate that the organis ation grows and administrative duties proliferate that it is no longer possible to take them at a glance. They become increasingly incomprehensible to those without special knowledge and training. Faced with this complexity, members of trade unions and political parties leave matters to their political leaders. Decisions are taken by the executive committees within the bureaucracy rather than by assemblies of the rank and the file. Thus, the very organisation which was created to represent its members, end up by largely excluding them from participation and decision making. Organisations therefore inevitably produce oligarchy which rule by a small group or elite, popularly known as the iron law of oligarchy. To sum up on oligarchy, Michels postulates that the oligarchic structure of the building suffocates basic democratic principle. Hence democracy and bureaucracy is not compatible because of these misgivings between the two. Communication in bureaucracy is basically top down commanding orders and giving institutions to employees or people without prior consultation. There is over dependence on the orders and direction for superiors while crushing the initiative of the subordinates. Macionis (1995) argues that individuality is suppressed as bureaucratic slavishly follow official procedures and regulations with advancement dependent on the judgement of higher authority. Subordinates bore and scrap to their superiors while adopting an arrogance stance to those beneath them in the hierarchy. Bureaucracy therefore, is sworn enemy of individual liberty and all bold initiative in matter of internal policy. It is petty, narrow, rigid and illiberal hence reflects the direct opposite of democracy and thereby it’s not compatible. There is a tendency to displace organisational goals by the leadership in bureaucracy. The leadership is established at the top of the bureaucratic pyramid and its primary concern is the maintenance of its own power. Leaders wish to retain the privilege and status which their positions bring, a concern which take priority over the started goals of the organisations. Schaefer (1995) adds that the organisation will become increasingly conservative as leaders refrain from taking any action that might endanger their position thereby compromising democracy in the process. Leaders learn skills like the art of controlling meetings, of applying and interpreting rules, of proposing motions at opportune moments, their control over the publications of the party for instance enables them to put across their own view point. Moreso in bureaucracy, leaders have considerable say in the appointment of officials in the organisation and can therefore select those who support their policies thus leaders see their own interests and the maintenance of the organisation as indistinguishable. Organisation was essential to democracy, however as a matter of technical and practical necessity organisations adopt a bureaucrat ic structure and it produced oligarchy control which brings to an end or death of democracy. However to a very lesser extent compatibility between democracy and bureaucracy do exist. Haralambos and Holborn (1993) assert that democracy is inconceivable without organisations. In a modern complex society the only way individuals can effectively communicate their wishes and press their nterests is by joining together and forming an organisation. This is particularly true of the relatively powerless working class masses for whom combination and cooperation is necessary and in Zimbabwe we have the Movement for Democratic Change (MDC) which is rooted on democratic foundations is now a full blown democratic bureaucratic political party. The inevitability on the compatibility of democracy and bureaucracy can be explained on psychological perspective on the natural need of the masses to be led. Macionis (1989) argues that democracy is a system in which power is exercised by the people as w hole, of which it does not mean that every member of society participates directly in decisions that directly affect them. This would only be possible in a very small political entity, hence representative democratic systems places governance in the hands of elected leaders. This is accompanying of veneration of activities where the masses clamoured to have a leader. In the light of democracy this will be viewed as the wish of the majority to be lead and hence can be respected. At the end of the day the leader will put in place a structure that resembles bureaucracy but all is done in the name of democracy. Therefore it can be argued that there is no bureaucracy without democracy and no democracy and bureaucracy without democracy. In other instances like in modern democracies people show their wishes through casting their vote in a free and fair electoral environment and if everyone including the observers view it as free and fair it becomes democratic because the wishes of the p eople will have been respected. The people would have given legal authority to the person and the voted government to rule over them hence it will be democratic, in this case democracy and burecracy becomes very compatible. Conclusively democracy and bureaucracy seem to be enemies which coexist in one society or in one organisation. In most case the two different aspects are not compatible as discussed but in other instances their coexistence is accepted as democratic and the only way forward in modern governments which involve managing larger populations which cannot be brought together at once and who have very diverse social economic views. If the majority agree then it’s viewed as democracy. The various interpretations of democracy lead to this debate on this compatibility. BIBLIOGRAPHY 1. Haralambos, M and Holborn, M (1995), Sociology: Themes and Perspectives. 4th edition. Harper Collins Publishers. London. 2. Hurd g et al (1991) Human Societies. An introduction to Sociology, Routledge and Kegan Paul . New York. 3. Jonson A, G (1981) Human Arrangements. An introduction to Sociology, Harcourt Braces Jovanovich. New York. 4. Macionis, J. J (1989) Sociology, Prentice Hall, New Jersey. 5. Schaefer, R. T (2003) Sociology, McGraw Hill, New York. Don’t waste time! Our writers will create an original "Democracy and Bureaucrary Are Incompatible" essay for you Create order