Conceptualizing the Rule of Law (original) (raw)
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Despite its long history of discourse in the Western world, " rule of law " (RL) is one of the most indeterminate normative concepts of political governance. " Thin " and " thick " definitions garner varying levels of support from different camps and remain controversial. The indeterminacy, nevertheless, does not cripple the enthusiastic promotion of RL around the world. The indeterminacy of RL presents more than merely an intellectually interesting question; it is also a pragmatic issue with real world consequences. A clear and pragmatic definition of the rule of law is needed for such a universally applied concept. Because time has shown that the traditional, conceptual-deductive approach alone cannot successfully solve the problem of indeterminacy and the risk of impracticability, this essay proposes a bottom-up, comparative-inductive approach responsive to both challenges. After discussing a new approach for thinking about rule of law pragmatically, this paper demonstrates the approach and analyzes relevant important findings I will then redefine RL accordingly and compare with the European Union's understanding of RL from some of its promotion projects. I hope that the new definition will not only prove analytically strong for thinking about normative concepts on the methodological level, but will also establish the European Union's promotion of RL upon the common ground among the wisdom and experience of the realistic scholars and research.
Triangulation of Theoretical and Empirical Conceptualizations Related to the Rule of Law
2021
Triangulation of the various methodological approaches towards the rule of law is highly desirable since it allows the combination of benefits and elimination of problematic aspects in each. The present article triangulates the conceptualizations of three approaches relating to the rule of law, namely Bedner’s review of the rule of law theories, the World Justice Project’s Rule of Law Index, and the review by Horák et al. of empirical measurement of legal consciousness, and identifies the most significant problem as a lack of communication between them. More precisely, the theoretical conceptualizations are not fully prepared for empirical measurement, and the empirical tools do not reflect the theoretical debate and its outcomes. Therefore, a new conceptualization of the rule of law is proposed to overcome these issues and consequently make the empirical measurement more valid.
A STRUCTURALIST CONCEPT OF THE RULE OF LAW
British Journal of American Legal Studies, 2021
The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society’s social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups. Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes. Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
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...
Measuring and Conceptualizing Rule of Law
This paper examines different measurements of the concept “rule of law”. Analysis shows that most of the organizations that measures the rule of law differ in terms of their approach and conceptualization of the concept. As a result, different measurements measure different dimensions of the concept. In addition, some organizations take too broad definition of the concept which leads concept becoming too stretched, while some take too specific definition which then makes their concept of “the rule of law” to be synonymous with other concepts such as democracy. Moreover, the organizations that undertake measurement of the rule of law worldwide fail to consider the problem of contextual specificity and do not take considerable actions to establish equivalence among different regions which then restricts measurement validity.
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.
Basic Level Categorisation and the Law
International Journal for the Semiotics of Law, 2022
This article probes the usefulness of the notion of basic level categorisation for legal theory. Basic level categorisation is the central part of the vertical dimension of Eleanor Rosch's prototype theory. It addresses the question about the various levels of abstraction at which humans can categorise the world. Extensive anthropological, psychological and linguistic research has proven that there is a preferable level of abstraction, namely the basic level, at which primary categorical cuts of the perceived world are made. Three areas of legal theory are identified when applying these findings. The first is the area of visualisation of legal rules. The notion of basic level categories addresses some of the known problems of discrepancies between the visualisation of a rule and its verbal description. The second is the area of statutory interpretation. Many famous cases of interpretive doubts are resolved around superordinate categories in statutory language. Categories of this level of abstraction are less contrastive than basic level categories, thus resulting in more potential for borderline cases and more reliance on functional methods in their classification. The third is the area of legislative drafting. The way in which the law categorises the world often invalidates two principles of categorisation identified by Rosch, namely cognitive economy and perceived world structure. In order to successfully enhance the comprehensibility of legal texts, it is necessary to go beyond the purely linguistic level and address the problem of legal categorisation.
Where do we start when thinking about law and social transformation and how do we articulate and address resistance to the reproduction of the concentration of power, wealth, authority, and prestige in the world? Contemporary legal argument still too often relies on theories and on conceptual thinking. Alternatives are presented as anti-neoliberal, anti-capitalist, anti-efficiency, anti-free-movement, anti-imperialism, anti-autonomy, anti-economics, and anti-law. I critique the Third World legal scholarship for its lack of an adequate picture of subordination and for misrepresenting power and the center-periphery relationship. Economic theories or capitalism are mere signifiers for the (hierarchical) reality that needs to be constantly constructed and reconstructed. I further argue that democratic theory is unable to adequately address social change and that both constitutional theory and critical legal thought often misrepresent power relationships. Reliance on false distinctions is too often a part of scholarly endeavour. David Kennedy, for example, relies on Karl Polanyi's distinction between politics and economics, a typical example of conceptualism of contemporary legal thought that distinguishes between protectionist and autonomy claims or theories. Rather than pursuing one or the other type of claim, the question should rather be whose protectionist and whose autonomy claim we are pursuing. Law is often understood as the problem, and political capacity and contestation as the solution to social problems. David Kennedy’s project of expertise, mistakenly perceives political incapacity as the central problem of global governance. I argue that his work does not adequately address structural subordination, and misrepresents power, ideology, center-periphery relationship and governance. It also frequently restates the public-private distinction. The problem of today’s globalized society is not “economic interests,” nor is the central problem the lack of the political. Nor can critique be the goal of our work, as David Kennedy suggests. Instead of a pursuit of “the political” or challenging “the economic,” instead of resisting particular claims or theories, we need to resist unjust—hierarchical—reality. How do we construct and reconstruct reality? I argue that law and governance should be understood as a plethora of hierarchies, as a constant hierarchical struggle. There are three elements of the legal structure: hierarchies (constituted by injury and recognition), ideology, and tools. Injury and recognition are the lowest common denominator of the legal structure and of global governance. Social change should be understood as a reversal of the existing global hierarchical structure. Center-periphery relationship is a macro relationship of micro hierarchies. Tools need to be constructed that reflect and resist the injuries we have not yet unearthed or those we simply disregard, such as a doctrine of goods dumping on the internal market that I am proposing.
Rule of Law definition from the perspective of multidimensional approach
It has been argued, due to the fact the rule of law is a universal legal phenomenon, its domestic (that is Ukrainian) version has remained isolated from the qualitatively new international legal and scientific approaches. In this scientific thesis discussion will point to the "great rule of law debate", currently unfolding in the contemporary academic community. Specifically, the essence of the multidimensional approach, under which rule of law is understood not only as general-theoretical notion, but primarily as a complex philosophical construction. On these grounds, we can argue that there are two different but interrelated "co-approaches" in the rule of law investigation - 1) structurally systematic and 2) functional equivalent. In its turn, they encapsulated into multidimensional approach to the rule of law idea.