Partial proceedings of the 17th World Congress, International Association for Philosophy of Law and Social Philosophy, Bologna, 1995.

This chapter contains section titled: I II III.

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality (...) lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that (...) have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, (...) how they have sustained it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society. (shrink)

The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law (...) is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society. (shrink)

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 2004 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. (shrink)

One of the remarkable features of the turmoil surrounding the counting and recounting of votes in the State of Florida in the 2000 US Presidential Election was the frequency with which "the Rule of Law" was invoked. Whether the antagonists in Florida knew it or not, they are in fact aspects of a venerable heritage of contestation that comes down to us as part and parcel of the Rule-of-Law tradition. The fact that "the Rule of Law" has (...) always evoked this contestation has led some to surmise that an old article by a linguistic philosopher, W.B. Gallie, entitled, "Essentially Contested Concepts" might afford the most fruitful basis for approaching the analysis of the term. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." (...) "[T]he essense of the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

We can evaluate laws as better or worse relative to different normative standards. One might lament the fact that a law violates human rights or, in a different register, marvel at its ease of application. A question in legal philosophy is whether some standards for evaluating laws are fixed by—or grounded in—the very nature of law. I take Raz’s discussion of the distinctively legal virtues, those that fall under the rubric of the “Rule of Law” such as clarity, generality, (...) and non-retroactivity, as my starting point for exploring a very general puzzle about the relationship between law’s essence and its virtue. -/- The claim that there are some virtues that laws have qua laws invites a comparison between law and other “goodness-fixing kinds.” A kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. For example, if an object belongs to the kind CLOCK, whether it keeps time accurately provides a basis for evaluating it as better or worse as a clock. Furthermore, the relevant normative fact—if a clock does not keep time accurately, it is a bad clock—is at least partly explainable in terms of the nature of clocks (clocks are things that are supposed to be keep time accurately). Hence, for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its constitutive standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other goodness-fixing kinds involves revising the general picture. (shrink)

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social (...) order. (shrink)

This chapter examines the nature of legislative deliberation and the political sources of legislative majorities as dominant themes of American constitutional thinking. Drawing on James Madison's insights based on his memorandum ‘Vices of the Political System of the U. States’, it considers how the American conception of the rule of law developed amid the republican innovations of the late eighteenth century. It looks at the constitutional crisis of the late 1780s and the underlying aspects of governance in the colonies-becoming-commonwealths (...) of Anglophone North America, with reference to Madison's arguments regarding the ‘impotence of the laws of the states’ and ‘perspicuity’ in the realms of law and politics. It also discusses Madison's innovative approach to republican constitutionalism as well as his conception of the effect of popular opinion and interest on the pursuit of public good and private rights. (shrink)

When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the (...) 'World Bank model' of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives. (shrink)

This chapter contains sections titled: Feudalism Magna Carta28 The Basic Idea: No One Is Above the Law The Modern West Takes Shape From Law to Commerce Equality Before the Law Conclusion Discussion Acknowledgments.

Political theorist Jeremy Waldron makes a bracing case against identifying rule of law with predictability. Seeing the rule of law as just one value to which democracies aspire, he embraces thoughtfulness rather than rote rule-following, flexibility even at the cost of vagueness, and emphasizing procedure and argument over predictable outcomes.

The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide (...) the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page). (shrink)

This book is a grand review of the centurial development of rule of law in China. It covers the most important issues in this area and presents "political constitution," a new interpretative framework that allows the Chinese experience of rule of law to be more fully and correctly expressed. It is especially useful to scholars involved in the study of modern China. The main chapters of this book include: The Constituent Movement in the Late Qing Dynasty; The Xinhai (...) (1911) Revolution; Constitution-making at the Beginning of the Republic of China; The Great Revolution in the 1920s; The Rise of the Party State and its Transition; The Founding of 1949 New China and its Early Constitutional Development; and The Dualist System of Rule of Law in the Reforming Times. (shrink)

In this paper it is argued that different understandings of the requirements of the Rule of Law can to a large extent be explained by the position taken with regard to two interrelated distinctions. On the one hand, the Rule of Law can be regarded as either a principle of law or as a principle of governance. On the other hand, the requirements of the Rule of Law can be regarded as defining either a minimum standard which (...) something has to meet in order to be law or as an aspirational standard identifying what it means to be good law. In combination these two distinctions define a range of perspectives on the nature of the Rule of Law that are complementary rather than mutually exclusive. (shrink)

A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context (...) of legal relationships. I argue that the state and its legal subjects are in a particular kind of legal relationship with one another, a fiduciary relationship, and that the content of the state's ensuing fiduciary obligation is the rule of law. Because the rule of law is intelligible in terms of the right, and independently of the good, it follows that compliance with the rule of law necessarily makes a moral difference regardless of how poorly the state lives up to the demands of the good. This is a conceptual rather than an empirical claim, and it leads to the conclusion that respect for human agency in the context of the state-subject fiduciary relationship necessarily entails respect for human dignity, respect for human dignity entails respect for human rights, and therefore a commitment to the rule of law entails a commitment to human rights. (shrink)

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as (...) ominous evidence of the rule of law's fragility in modern liberal democracy. (shrink)

This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test - states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive - in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with (...) the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular (...) conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law (...) does not require citizens to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow. (shrink)

The rule of law is politico-legal realm of the modern society that it balances human gratifications, self-respect and prerequisites of legal order, after dissolution of the traditional society. Apart from our criticisms on the capitalist society there had been an expanding development of civic virtue of the human individual since early beginning of capitalism up to the 1980’ies when idea of self respect and the legal order relatively balanced. But, after neo-liberalism, the development is retrieving to the unbridled individualism, (...) detrimental to the human virtue of all humanity. (shrink)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is (...) no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

The idea of the rule of law is central in the European Union’s conception of itself, and stands as one of the most important political criteria of the enlargement process. Some clarification of this core concept is essential if it is to play a meaningful role in enlargement and, indeed, if we are able to make a judgement about whether the criterion is substantive or merely rhetorical. In other words, what purpose must the rule of law serve within (...) a state, beyond the rather trite beliefs that the law rather than individuals rule, and that no one is above the law, if a state is to be admitted to the European Union of states? I want to suggest that its principal purpose has been to guard against arbitrary rule, and if the rule of law is to be a substantive criterion for expansion of the European Union it must be cognizant of what the criterion entails, and face up to the implications for admitting states with cultures where the rule of law has not featured significantly in their political and social landscapes. The article looks at one of the most sophisticated attempts to delineate the ideal character of the rule of law in recent philosophy, namely that of Michael Oakeshott, to clarify the meaning that it has in its use in modern European history and in relation to the modern European state. (shrink)

This book explores aspects of indigenous Yoruba philosophy of law and relates this philosophy to the Yoruba indigenous traditions of governance. It is written with an appreciation of the relevance of the Yoruba traditions of law and governance to contemporary African experiments with imported Western democracy in the twenty-first century.

Although the concept of Rule of Law has been revived and developed vigorously by mid‐twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the (...) class='Hi'>Rule of Law. By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)

This chapter contains section titled: What is the Difference between Moral Rules and Laws? Judicial Activism The Role of Judges Dissent and Democracy Conscientious Objectors.

(2001). The rule of law and the rule of persons. Critical Review of International Social and Political Philosophy: Vol. 4, Trusting in Reason: Martin Hollis and the Philosophy of Social Action, pp. 221-251.

The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected (...) to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law. (shrink)

The objective of this article is to introduce a new concept for grouping all countermajoritarian instruments which became the true casualties of polity design during the New Latin American Constitutionalism (NLAC). This theoretical endeavor, which has not been undertaken until now, will be discussed on the basis of the constitutional upheavals that occurred between 1999 and 2009 in Venezuela, Ecuador, and Bolivia. By addressing a specific theme of this experience, namely its implications for the relationship between democracy and countermajoritarian devices, (...) this article shows why an aggregating concept such as state ataraxy is needed. This concept fills the gap that hinders understanding of what has been institutionally dismantled in the course of these reforms. The article then challenges the claim that with the collapse of countermajoritarian institutions, democracy necessarily collapses. It concludes with a new assessment of the novelty that the NLAC may have brought concerning the tension between democracy and countermajoritarian institutions. The findings contribute to understand one of the most enduring concerns of state theory in general, the tension between democracy and the rule of law. (shrink)

Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of co-operative community life, the book presents a vision of law that facilitates rather than frustrates politics, (...) an anlysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision based on the recognition of shared humanity. (shrink)

For more than a decade now a profound rule-of-law crisis has gripped the European Union, and while the fight for the rule of law has topped not only the academic but also the judicial and political agenda, the results have been disappointingly meagre. This article argues that the main reason for that should be sought in a political strategic move of justifying the assaults on the rule of law by resorting to an “illiberal democracy.” This premeditated political (...) narrative shift has unleashed onto the political sphere and onto public discourse at large comprehensive doctrines which had hitherto been left dormant thanks to an overlapping consensus on the rule of law as a central building block of the political conception of justice à la Rawls. Once this overlapping consensus was broken, the rule of law itself lost its neutral character as a referee on the right among the many conceptions of the good, itself becoming part of the highly politicized power play for dominance among irreconcilable—liberal and illiberal—comprehensive doctrines. The overlapping consensus in the EU is thus broken, but there are no conceptual reasons inherent to the rule of law itself for which it could not be rebuilt in the future. (shrink)