Results for 'Rule of Law'

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  1. The Rule of Law and Equality.Paul Gowder - 2013 - Law and Philosophy 32 (5):565-618.
    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.
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  2. Autonomous Weapons and the Nature of Law and Morality: How Rule-of-Law-Values Require Automation of the Rule of Law.Duncan MacIntosh - 2016 - Temple International and Comparative Law Journal 30 (1):99-117.
    While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...)
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  3. Introduction: Symposium on Paul Gowder, the Rule of Law in the Real World.Matthew J. Lister - 2018 - St. Louis University Law Journal 62 (2):287-91.
    This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.
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  4.  76
    Objectivity and the Rule of Law.Matthew Kramer - 2007 - Cambridge University Press.
    What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising (...)
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  5. Reconciling the Principled Approach to Hearsay with the Rule of Law.Andrew Botterell - 2014 - Supreme Court Law Review 65 (2d):145-168.
    My goal in this paper is to argue that the principled approach to hearsay is consistent with the rule of law. I begin by contrasting an instrumental conception of the rule of law with a conception that views the rule of law in primarily normative terms. I then turn my attention to a recent criticism of the Supreme Court of Canada’s principled approach to hearsay and suggest that if Michael Oakeshott’s normative interpretation of the rule of (...)
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  6. Republican Freedom and the Rule of Law.Christian List - 2006 - Politics, Philosophy and Economics 5 (2):201-220.
    At the core of republican thought, on Philip Pettit’s account, lies the conception of freedom as non-domination, as opposed to freedom as noninterference in the liberal sense. I revisit the distinction between liberal and republican freedom and argue that republican freedom incorporates a particular rule-of-law requirement, whereas liberal freedom does not. Liberals may also endorse such a requirement, but not as part of their conception of freedom itself. I offer a formal analysis of this rule-of-law requirement and compare (...)
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  7.  11
    Can the Rule of Law Apply at the Border?: A Commentary on Paul Gowder’s the Rule of Law in the Real World.Matthew J. Lister - 2018 - Saint Louis University Law Journal 62 (2):332-32.
    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 (...)
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  8.  90
    The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence.Hock Lai Ho - 2016 - Criminal Law and Philosophy 10 (1):109-131.
    If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the (...) of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)
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  9.  24
    The Impossibility of the Rule of Law.Timothy A. O. Endicott - 1999 - Oxford Journal of Legal Studies 19 (1):1-18.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But (...)
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  10.  13
    Political Reconciliation, the Rule of Law, and Truces.Colleen Murphy - 2017 - Journal of Global Ethics 13 (1):28-39.
    Nir Eisikovits argues in A Theory of Truces that most contemporary conflicts wind down in a much more piecemeal fashion than our theorizing about the morality of ending wars suggests. Pauses in violence are achieved by securing agreement on narrow questions. Moreover, rather than hoping to do away with violence, theorizing would do best, he writes, to take as its starting point the fact of warfare as part of the human condition. Eisikovits aims to articulate the features of truce thinking, (...)
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  11. [Book Review] the Structure of Liberty, Justice and the Rule of Law. [REVIEW]Randy E. Barnett - 2000 - Criminal Justice Ethics 19 (2):131-135.
    This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
     
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  12. The Structure of Liberty: Justice and the Rule of Law.Randy E. Barnett - 1998 - Oxford University Press.
    This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
     
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  13. The Politics of the Rule of Law.Joseph Raz - 1990 - Ratio Juris 3 (3):331-339.
    The article reviews several books on the rule of law, including "International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation," by Victor A. Peskin, "Civil War and the Rule of Law: Security, Development, Human Rights," edited by Agnes Hurwitz and Reyko Huang, and "Plunder: When the Rule of Law Is Illegal," by Ugo Mattei and Laura Nader.
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  14. The Structure of Liberty: Justice and the Rule of Law.Randy E. Barnett - 2000 - Oxford University Press UK.
    In this provocative and engaging new book, Randy Barnett outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
     
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  15.  38
    How Is the Rule of Law a Limit on Power?David McIlroy - 2016 - Studies in Christian Ethics 29 (1):34-50.
    A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including (...)
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  16.  31
    The Rule of Law and Its Predicament.Yasuo Hasebe - 2004 - Ratio Juris 17 (4):489-500.
    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.
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  17.  17
    Catholic Social Thought in the Interwar Period in Lithuania: The Image of Social State under the Rule of Law in Socialism.Eglė Venckienė - 2013 - Jurisprudencija: Mokslo darbu žurnalas 20 (2):391-406.
    Social life is changing very fast. People are trying to find out reasons of living in a safe society and understand their role in it. The ‘wrong’ and ‘right‘ models of the social life, state and law systems are appearing. In the XXth century, one of them – socialism – made suggestion how to solve social problems, determinated of capitalism. This work deals with the situation of Lithuanian social thought in the Republic of Lithuania (1900-1940). In the article, the standpoint (...)
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  18.  14
    Democratic Theories and the Problem of Political Participation in Nigeria: Strengthening Consensus and the Rule of Law.Philip Ujomu & Felix Olatunji - 2014 - Human Affairs 24 (1):120-135.
    This paper addresses the problem of the strategies and theories of democratic participation in Nigeria that breed institutional marginality and bad governance due to shortfalls in pursuing the values of justice and empowerment as core democratic characteristics. The same democratic principles such as voting, parliament, constitution, judiciary, that are suggestive of gains such as responsible use, and peaceful transfer of power may not have translated fully into sociopolitical empowerment for responsibility and representation in evolving democratic practice in Nigeria due to (...)
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  19.  4
    Political Reconciliation, the Rule of Law and Post-Traumatic Stress Disorder.Colleen Murphy - 2006 - In Nancy Potter (ed.), Trauma, Truth and Reconciliation: Healing Damaged Relationships. New York: Oxford University Press.
    I discuss why one critical aspect of the process of political reconciliation involves the restoration of mutual respect for the rule of law and suggest that psychological research on post-traumatic stress disorder (PTSD) provides valuable resources for understanding how successfully to restore such mutual respect.
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  20.  26
    The Rule of Law in the Real World.Paul Gowder - 2016 - New York, USA: Cambridge University Press.
    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, (...)
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  21.  33
    Legal Sources, the Rule of Recognition, and Customary Law.Grant Lamond - 2014 - American Journal of Jurisprudence 59 (2):25-48.
    A perennial puzzle about source-based law such as precedent is what makes sources legally binding. One of the most influential answers to this puzzle is provided by Hart’s rule of recognition. According to Hart, the sources of law are accepted as binding by the officials of a legal system, and this collective social practice of officials provides the foundations for a legal system. According to Hart, the rule of recognition differs fundamentally from other legal rules in three ways: (...)
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  22.  79
    Toward an International Rule of Law: Distinguishing International Law-Breakers From Would-Be Law-Makers.Robert E. Goodin - 2005 - Journal of Ethics 9 (1-2):225-246.
    An interesting fact about customary international law is that the only way you can propose an amendment to it is by breaking it. How can that be differentiated from plain law-breaking? What moral standards might apply to that sort of international conduct? I propose we use ones analogous to the ordinary standards for distinguishing civil disobedients from ordinary law-breakers: would-be law-makers, like civil disobedients, must break the law openly; they must accept the legal consequences of doing so; and they must (...)
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  23.  27
    The Status of Precautionary Principle: Moving Towards the Rule of Customary Law.Agnė Širinskienė - 2009 - Jurisprudencija: Mokslo darbu žurnalas 118 (4):349-364.
    The main goal of this article is to analyse the current status of the precautionary principle in international law and outline the tendencies of its development into a rule of customary law. The methods of comparative and systematic analysis were used in this paper. The article concludes that there is sufficient state practice and opinio iuris to support the position of the European Communities that the precautionary principle has already crystallized into a general customary rule. Evidence may be (...)
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  24. Rhetoric and the Rule of Law: A Theory of Legal Reasoning.Neil MacCormick - 2005 - Oxford University Press.
    This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.
     
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  25.  20
    Profiling and the Rule of Law.Mireille Hildebrandt - 2008 - Identity in the Information Society 1 (1):55-70.
    Both corporate and global governance seem to demand increasingly sophisticated means for identification. Supposedly justified by an appeal to security threats, fraud and abuse, citizens are screened, located, detected and their data stored, aggregated and analysed. At the same time potential customers are profiled to detect their habits and preferences in order to provide for targeted services. Both industry and the European Commission are investing huge sums of money into what they call Ambient Intelligence and the creation of an ‘Internet (...)
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  26.  40
    Getting to the Rule of Law. [REVIEW]Michael Cholbi - 2012 - Law and Politics Book Review 22 (1):266-269.
  27. Lon Fuller and the Moral Value of the Rule of Law.Colleen Murphy - 2004 - Law and Philosophy 24 (3):239-262.
    It is often argued that the rule of law is only instrumentally morally valuable, valuable when and to the extent that a legal system is used to purse morally valuable ends. In this paper, I defend Lon Fuller’s view that the rule of law has conditional non-instrumental as well as instrumental moral value. I argue, along Fullerian lines, that the rule of law is conditionally non-instrumentally valuable in virtue of the way a legal system structures political relationships. (...)
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  28.  68
    Is the Rule of Law Really Indifferent to Human Rights?Evan Fox-Decent - 2008 - Law and Philosophy 27 (6):533 - 581.
    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 (...)
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  29.  81
    Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration. [REVIEW]Mark J. Bennett - 2011 - Law and Philosophy 30 (5):603-635.
    HLA Hart and Joseph Raz are usually interpreted as being fundamentally opposed to Lon Fuller’s argument in The Morality of Law that the principles of the rule of law are of moral value. Hart and Raz are thought to make the ‘instrumental objection’, which says that these principles are of no moral value because they are actually principles derived from reflection on how to best allow the law to guide behaviour. Recently, many theorists have come to Fuller’s defence against (...)
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  30. Recrafting the Rule of Law. The Limits of Legal Order (S. Guest).D. Dyzenhaus - 2002 - Philosophical Books 43 (1):68-70.
     
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  31. Re-Imagining Justice Progressive Interpretations of Formal Equality, Rights, and the Rule of Law.Robin West - 2003
     
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  32. The Rule of Law Political Theory and the Legal System in Modern Society.Franz Neumann - 1986
     
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  33.  50
    A Virtue-Centered Account of Equity and the Rule of Law.Lawrence B. Solum - 2007 - In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave-Macmillan.
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  34. Rule of Law Political and Legal Systems in Transition.Werner Krawietz, Enrico Pattaro & Alice Erh-Soon Tay - 1997
     
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  35. Zhe Xue Shi Ye: Fa Zhi Yu de Zhi Xin Lun = Philosophy Field of Vision: A New Theory on the Government by Law and Virtuous Rule.Qi Na - 2006 - She Hui Ke Xue Wen Xian Chu Ban She.
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  36.  21
    Fazhi Vs/and/or Rule of Law?: A Semiotic Venture Into Chinese Law.Deborah Cao - 2001 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 14 (3):223-247.
    The paper is an investigation offazhi (rule of law) in China. The studyproposes a tentative semiotic framework for theinterpretation of the rule of law as a legalconcept to be applied to China in the light ofits recent incorporation into the ChineseConstitution. The paper argues that legalconcepts such as the rule of law are triadic innature and their constituents are relative,relational and contextual in the semioticinterpretative process. The study examines howthe concept can be explicated with the thin orformal (...)
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  37. May, Should, or Do, Administrative Judges Participate in the Management of the Public Sphere in the Rule of Law?Adam Szot - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-11.
    The article concerns the actual impact of courts controlling the activity of public administration on the direction of its activities and the content of issued decisions. In particular, it concerns sovereign individual decisions that affect the sphere of civil rights and freedoms. The aim of the article is to seek an answer to the question of whether independent judges actually participate in the process of management in the public sphere, which is characterised by elements of politics and whether such participation (...)
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  38.  14
    Rule of Law and the Virtue of Justice.Kevin L. Flannery - unknown - Proceedings of the American Catholic Philosophical Association:1-19.
    The author considers, first of all, recent and fairly recent interpretations of Plato’s dialogue the Crito, arguing that the character Socrates, whose expressed ideas probably correspond in major detail to the convictions of the historical Socrates, is not saying that the laws of Athens demand unquestioning obedience. The dialogue is rather an account of the debate that goes on in Socrates’s mind itself. A strong consideration in this debate is clearly the rule of law; but equally strong is Socrates’s (...)
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  39. Aneu Orexeōs Nous: Virtue, Affectivity, and Aristotelian Rule of Law.Gregory B. Sadler - 2012 - Studia Neoaristotelica 9 (2):107-133.
    Passages in Aristotle’s Politics Book 3 are cited in discussions of the “rule of law”, most particularly sections in 1287a where the famous characterization of law as “mind without desire” occurs and in 1286a where Aristotle raises and explores the question whether it is better to be ruled by the best man or the best laws. My paper aims, by exegetically culling out Aristotle’s position in the Politics, Nicomachean Ethics and Rhetoric, to argue that his view on the (...) of law and its relations to human subjects is considerably more complex and considerably more interesting. Despite Aristotle’s dictum, laws are not expressions or institutions of a pure and passionless rationality, and in order to be framed, understood and administered well, one must both have the sort of solid understanding of virtues, vices, passions, and motives of human action that Aristotle’s moral philosophy provides and have developed, at least to some degree, certain virtues. My paper focuses particularly on three themes: the role of the passions and desires in judgment, action, virtues and vices; the inescapability of passions and desires in the functioning of law; the possibility for rule of law and a certain level of virtue to be mutually supporting. (shrink)
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  40.  54
    Rhetoric and the Rule of Law.Neil MacCormick - 2001 - The Proceedings of the Twentieth World Congress of Philosophy 11:51-67.
    The thesis that propositions of law are intrinsically arguable is opposed by the antithesis that the Rule of Law is valued for the sake of legal certainty. The synthesis considers the insights of theories of rhetoric and proceduralist theories of practical reason, then locates the problem of indeterminacy of law in the context of the challengeable character of governmental action under free governments. This is not incompatible with, but required by the Rule of Law, which is misstated as (...)
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  41.  59
    Corruption and Development: New Initiatives in Economic Openness and Strengthened Rule of Law.Augustine Nwabuzor - 2005 - Journal of Business Ethics 59 (1-2):121-138.
    Corruption is a major problem in many of the world’s developing economies today. World Bank studies put bribery at over $1 trillion per year accounting for up to 12 of the GDP of nations like Nigeria, Kenya and Venezuela. Though largely ignored for many years, interest in world wide corruption has been rekindled by recent corporate scandals in the US and Europe. Corruption in the developing nations is said to result from a number of factors. Mass poverty has been cited (...)
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  42.  15
    On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe's Bailouts.C. Kilpatrick - 2015 - Oxford Journal of Legal Studies 35 (2):325-353.
    The norms governing EU sovereign debt conditionality in ‘debtor states’ significantly trouble the Rule of Law. My analysis addresses this central, yet to date ignored, Rule of Law challenge created by the EU economic crisis. I contrast my specific approach with two other Rule of Law strands in current EU scholarship and develop it by placing it within relevant broader literatures on rule of law and emergency. Drawing particularly on Fuller and Waldron, this produces a formal (...)
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  43.  24
    The Rule of Law in the Modern European State.David Boucher - 2005 - European Journal of Political Theory 4 (1):89-107.
    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 (...)
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  44.  52
    The Rule of Law Beyond Thick and Thin.Peter Rijpkema - 2013 - Law and Philosophy 32 (6):793-816.
    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 (...)
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  45.  17
    Positivism, Idealism and the Rule of Law.Sean Coyle - 2006 - Oxford Journal of Legal Studies 26 (2):257-288.
    The modern lawyer operates within a conception of law as a body of rules. To confront the law of contract, of torts, or of property, is to familiarize oneself with an intricate set of rules. Such familiarity is not yet legal scholarship, much less legal practice. For in order to use the rules as lawyers use them, the rules must be contemplated and considered, and the relationship between the different rules must be understood. Because the intellectual processes involved in handling (...)
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  46.  20
    Abstraction and the Rule of Law.William Lucy - 2009 - Oxford Journal of Legal Studies 29 (3):481-509.
    This article tackles two issues: the nature of law's judgment and what, if anything, might be said in its favour. As to the first issue, the article reminds lawyers of the obvious, namely, that law's judgment is abstract, elucidating both what this entails and why it may be thought problematic. The main burden of the article is to consider what might be said in favour of law's abstract judgment. Only one family of arguments, part of a wider but still not (...)
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  47.  46
    Hong Kong’s Migrant Workers and Their Impact on the Rule of Law Narrative.James Andrew Rice - 2015 - International Journal of Applied Philosophy 29 (2):221-239.
    Hong Kong’s adherence to the rule of law has been widely understood as one of its “core values.” As such, it has been understood as an institution necessary for good governance and a check against the abuse of governmental power as well as a feature that differentiates Hong Kong’s system of governance from other parts of China. At the same time, intervening issues of immigration and of constitutional interpretation have begun to challenge this perception. This paper argues that a (...)
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  48.  1
    The Law Commissions: Constitutional Arrangements and the Rule of Law†.Susan Kenny - 2019 - Oxford Journal of Legal Studies 39 (3):603-623.
    This review article considers two publications concerning the Law Commissions created under the Law Commissions Act 1965: Fifty Years of the Law Commissions: The Dynamics of Law Reform, a collection of essays edited by Dyson, Lee and Wilson Stark, and Wilson Stark’s monograph, The Work of the British Law Commissions: Law Reform … Now? The writers demonstrate how the Commissions’ law reform work has made a unique contribution to the improved operation of the legal system and how they must continue (...)
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  49.  27
    The Impossibility of the Rule of Law.Tao Endicott - 1999 - Oxford Journal of Legal Studies 19 (1):1-18.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But (...)
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  50.  10
    The Devlin Commission (1959): Colonialism, Emergencies, and the Rule of Law.Simpson Brian - 2002 - Oxford Journal of Legal Studies 22 (1):17-52.
    The Devlin Commission Report of 1959 on the handling of the emergency in Nyasaland (Malawi) was unique in British colonial history. On no other occasion was a commission, chaired by a British judge, established to consider generally the response of a colonial government to a problem of law and order. Though now remembered mainly as an incident in decolonization, the report has a special legal significance in that it addresses the perennial problem of the relationship between respect for the (...) of law and the supposed need to suppress an insurrectionary movement. Documents now available make it possible to give a full account of the work of the commission, and of the processes whereby the text was modified so as to downplay Devlin's desire to publish a report which squarely faced this problem. The suppressed passages in the draft report are here published for the first time. (shrink)
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