The rule of law and the rule of persons (original) (raw)
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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.
Two Concepts of the Rule of Law
Zbornik Znanstvenih Razprav, 2019
The rule of law is today one of the leading notions in international relations and an ob-ject of intense public debate in many countries. As a legal and political ideal, it is invoked to argue for greater recognition of law and legal institutions in modern society. This is happening even if there is no generally accepted understanding of what it actually is in either political or legal terms, and its meaning can differ considerably depending on the social and geographical environment. To facilitate the contemporary rule of law debate, this article proposes a primary distinction between what might be termed classical and institutional interpretations of this concept. It is suggested that under the classical view, the rule of law is understood as a constitutional principle, broadly expressing liberal doctrines on the proper relationship between law, the individual and the modern consti-tutional state. In the last few decades, however, we have also witnessed, especially in the internat...
An Elementary Approach to the Rule of Law
Hague Journal on the Rule of Law, 2010
The past ten years have seen an avalanche of literature on the rule of law, but little agreement on a definition of the concept -if it is defined at all. The present article offers a conceptual framework to deal with this situation. Departing from the two main functions the rule of law intends to serve -protecting citizens against the state and against one another -it dissects the various definitions in use into elements. These elements are discussed one by one and arranged in three categories: procedural elements, substantive elements and control mechanisms.
The Rule of Law at Home and Abroad
The article addresses the meaning of the Rule of Law and its import between domestic and supra-State legalities, starting from problems raised by real cases, and the insufficiency of some received ideas or more common notions-from those requisites-based to formal, material, or procedural ones-to cope with them. Accordingly it focuses upon a ''dual'' structure of legality as an institutional condition for the Rule of Law to pursue its normative ideal. The ''duality condition'' for the Rule of law is historically and theoretically reconstructed in its origin and development, and the notion is carefully distinguished from rule compliance, procedural fairness, substantive justice, the principle of legality, and other different achievements of the present legal civilization. Its essential content shapes a separate, distinct identity vis a ` vis democracy and human rights, while it appears conducive to the appraisal of several problems related to the Rule of law oversight in diverse current circumstances.
On the Fundamentals of Law and Public Policy
We subsist under the law where we claim our rights and obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension of public power and private interests could be one reason as well as offer a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary one in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law may shape a legal plane of bureaucracies or public administration, and guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore the justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status.
The doctrine of the rule of law in the twentieth century
1985
The concept of rule of law has been recognized repeatedly in twentieth century political and philosophical discussion, but with a constantly shifting meaning. In this paper we document most of the serious contributions to thought about rule of law before 1985 as a background to further work on the topic.