The Rule of Law and its Limits (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.
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.
The Rule of Good Law: Form, Substance and Fundamental Rights
The Cambridge Law Journal, 2019
This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.