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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.
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: 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.
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.
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...