The Rule of Law and its Limits (original) (raw)
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 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.
Rule of Law: a Fundamental Concept Without a Coherent Meaning
European Journal of Comparative Law and Governance
The concept “rule of law” is used worldwide. However, the meaning of the concept varies, depending on several factors such as geography and history. This article provides a brief overview of how the concept is understood in the Swedish and Chinese legal contexts, by defining its different characteristics. The research confirms that the concept, which originates from the West, is used and perceived quite differently in the two countries. In fact, the use of different terminology, law-state thinking and socialist rule of law with Chinese characteristics, confirm the differences in understanding.
What’s the Point of the Rule of Law?
2019
MARTIN KRYGIER † 'Domination is resilient because it is always captured by the most powerful forces in a society, be they forces of state or private power or the military-industrial complex. Power therefore must be tempered every which way'. -John Braithwaite, 'Hybrid politics for justice,' 25. 'Tempering power" is not a new or unusual phrase but it attracts little investment, carries little freight, and at least under that name is not (yet!) an academic subject. By contrast, "the rule of law" draws multi-billion dollar investments, 1 is overladen with ideological and theoretical baggage, and is now a subject in many fields, among them: law, philosophy, political science, and economics. Its surge to † This paper had its origins in my unpublished 2017 Dennis Leslie Mahoney Prize Lecture, 'Re-Imagining the Rule of Law' delivered to the Julius Stone Institute of Jurisprudence,
The Rule of Law: Pasts, Presents, and two possible Futures
The Rule of Law: Pasts, Presents, and two possible Futures. Martin Krygier Abstract The rule of law’s recent rise from parochial and controversial political and legal ideal to universal international slogan has, then, given it a great boost in brand recognition, but its now mandatory rhetorical presence has rendered increasingly murky what the concept might mean, what the phenomenon might be, and why anyone should care. This fluidity might even be part of its charm to those who deploy it, but it has a price. For the concept speaks to important and enduring issues of politics and law, not always apparent in current rule of law effusions. So this article begins in a deliberately unoriginal way, not with those effusions but with some intimations of old traditions of thought. It identifies two venerable themes, related to each other as vexed problem and putative solution, namely arbitrary exercise of power, and its institutionalized tempering. These date from well before the rule of law became an economist’s and aid worker’s cliché. They might usefully inform present conversations, which instead often proceed in ignorance of them. The article then moves to some past experiences with and without the rule of law understood this way. It then goes normative, to suggest the ideal of the rule of law is a THOROUGHLY GOOD THING, even if not every invocation or even application of it is. The penultimate section raises some normative and sociological criticisms of current discussions, to do with their inadequate treatment of ideals and of contexts. The article concludes with two suggestions about future directions: one a call for a social science that doesn’t exist, and the other a timid suggestion that it might be time to go beyond the rule of law, in order to pursue the ideals that led us to it.
Law's Rule: Reflexivity, Mutual Accountability, and the Rule of Law
Social Science Research Network, 2013
We are going to be a community of the rule of law', 1 announced C.H. Tung, the Chinese official appointed to govern Hong Kong, prior to China's assuming jurisdiction over the city. Tung's publicly uttered reassurance appealed to an ancient ideal. Already in the fifth century B.C.E., the core idea of the rule of law was captured on stone columns in the Cretan city of Gortyn. The first sentence of the Gortyn Law Code asserts the supremacy of the legal process, declaring 'if anyone wishes to contest the status of a free man or a slave, he is not to seize him before a trial'. 2 Law and the legal process were to rule the actions and interactions of citizens of Gortyn; but equally it was to govern the exercise of power by officials and those who acted under colour of law. Officials, even the city's highest official, the kosmos, were held accountable to the law. They could be fined if they failed to enforce the law properly. 3 Law was not to be merely an instrument of governance; law was meant to rule governors and citizens alike. This is the simple, central idea of the rule of law. 'If the law does not rule', Martin Krygier observed, 'we don't have the rule of law'. 4 The rule of law is first of all about rulingthe law's ruling. This ancient ideal of law's rule is our subject. More precisely, this essay will focus on the conditions for the realization of law's rule. Philosophical explorations of the rule of law ideal largely focus on principles of legalitythe formal, procedural, and institutional aspects of the idealbut I believe that these discussions are seriously incomplete. I shall argue that fidelity-1 'We are Going to be a Community of the Rule of Law',