The Rule of Law and Human Virtue (original) (raw)
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The Social History of Law as a Factor of the Rule of Law
Osteuropa-Recht, 2021
The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types-the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a "triangle" of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law.
The rule of law and the rule of persons
Critical Review of International Social and Political Philosophy http://dx.doi.org/10.1080/13698230108403373, 2001
After outlining the basic concept and purpose of the Rule of Law, this paper surveys five different conceptions. The first two represent the modern, predominantly legal positivist, conception of the doctrine, as a mixture of formal rules and executive command. Their concern is with the stability and coherence of the legal system. The third involves a notion of law as a set of community rules deriving from social practice. The fourth, Hayek’s account, and the fifth, a republican view, are presented as attempts to synthesise these two broad approaches and thereby avoid their respective problems. While there are some surprising similarities between these two syntheses, the latter is ultimately preferred. In this republican conception, the Rule of Law emerges from the rule of persons – the key lies not in the form of law but the nature of the political system and its ability to curb arbitrary power.
The Relationship Among the Rule of Law, Morality, and the Modern State
DergiPark (Istanbul University), 2021
At the heart of modern society and states is the concept of the rule of law as a fundamental principle. In the context of Stoicism, it is considered as a moral principle and Roman legal philosophy for removing arbitrariness from political judgments, practices, and processes. Accordingly, this article's main goal is to examine the phenomenon of modern states, which began in Europe but has since spread to many other regions of the world, in terms of the rule of law as this notion is the basis for all modern states (i.e., positive law). A comparative study is conducted in this regard in order to compare and contrast Western legal precedents such as Stoicism, Rechtsstaat [rule of law], also known as État de droit in French and Stato di diritto in Italian, with respect to its philosophical and historical development over time. The relevant literature was analyzed in order to determine the best method. In this framework, the study explores the notions of Rechtsstaat as the German, État de droit as the French, and Stato di diritto as the Italian philosophy of law.
1st International e-Conference on Studies in Humanities and Social Sciences: Conference Proceedings, 2018
The relationship of society, law and politics is extremely complex. The position of the individual in a necessary system of legal-political relations, we have subsumed under the original syntagm totalized individuality, by which we denote the subordination of the individual to the regime of domination, which is in its turn, the expression of the interests of the ruling structures. Technological progress is the basis of this domination, whose base is the power to impose political and legal order, as a form of sociability that erases individuality. Technological development is far ahead of the organization of society, which is supposed to be following. We seek to structure the society in accordance with this fact in the idea of culture, which, by means of law and politics, is favoring the spirituality of the individual, as a dam for current superficial human existence. By means of culture, as the formula for structuring the society, human individuality should be preserved.
Law and Human Nature: The Social-Adaptive Function of the Normative Behavior
The objective of this article is to offer a critical (re)interpretation of genesis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the intention of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more-no less-than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively-in fact, not always with justicethrough the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to organize and ethically improve political and social life in such a way as to permit that no free citizen-rich or poor-should fear the arbitrary interference of other social actors in his life plan.
Law, Moral and Democracy within Between Facts and Norms
Importance and the influence of the Habermas’ theory presented in Between facts and norms will not be put under question however this article will try to profoundly analyze it and present some of the critics as a way of giving more objective perspective of Habermas’ approach. In first part this article will specially deal with authors view on Moral through reflection on his previous works on this subject, especially development of Discourse ethics. Further through the work tensions between morality and law will be presented and their relation in modern societies so we can define the main subject of this paper, modern legal system better. In the second part we will deal with issues of relation of democracy and law. It will be presented through focus on legitimacy it’s relation with democracy as well as model of Deliberative democracy. This paper contains also, view of Derrida as alternative to Habermas’ notion on co-originality. Also, we will deliberate about interesting relation within norms and values and their application in praxis and critic on Habermas’ view which came from Alexy. In conclusion we will try to give summery review of the most important points of the part of Habermas’ theory this article presented.
2017
Law is not a steady or an ageless system, working in an abstract logical way it exists in a world controlled by time. Over the years time has played a big effect on the changes to law it uses the present as a linking bridge to the past and future. It's also imminent to state that law is not just a system of rules, sanction, guidelines but also a structure of thought and expression upon which discrete set of dynamic and dialogue tensions are built. To juxtapose law and justice is to look at the works of author s and ask questions like does justice come from the law? If so is law the guiding path to justice? At which point can justice go beyond the scope of the law? The un-abating existence of law and justice is interrupted by the fact that they cannot be simultaneously prioritized. According to Jeremy Bentham in his utilitarian theory he wrote about the 'propensity to maximize goodness'. He saw a right action as one which has the conception of what is good. The Act of being good 'goodness' in action can it be taken to mean justice in action? The society needs the law while the layman craves for justice. Critical legal studies on law and justice emphasized the political strata of the society. This essay would support the 'Art' to justice taken from the humanistic view in procedural justice which can lead to social justice.
The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.
The paper focuses on the working and operation of the priniciple of Rule Of Law and its two levels of interface with society.