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ZIMMERMANN A. / UNDERSTANDING THE RULE OF LAW: CONCEPTIONS AND PERSPECTIVES

30.01.14 18:51


Augusto Zimmermann, LLB, LLM, PhD (Mon.)

Senior Lecturer in Law

President, WALTA

Editor, The Western Australian Jurist

Commissioner, Law Reform Commission of Western Australia

First Considerations

 

Many legal scholars appear reluctant to acknowledge or at least to address extra-legal aspects that, in a particular social context, appear to determine the success or failure of the realisation of the rule of law. The reason for this may be that these legal scholars would then be compelled to adopt a less legal, more sociological approach in their investigation of the phenomenon. This article provides a broad, interdisciplinary account of legal and extra-legal circumstances that may lead to the successful (or unsuccessful) realisation of the rule of law.

 

Although the meaning of the concept known as the rule of law is always open to debate, there is a general agreement that this is essentially concerned with protecting the citizens from unpredictable and arbitrary interference with their vital interests. Such interference may come from two basic sources: other individuals, or government. Hence, a community is said to be under ‘the rule of law’ if people are clearly protected from arbitrary violence, and if laws exist that are established to maintain peace and avoid that which may be called a Hobbesian state of ‘war of every man against every man’.[1]

 

There is a broad understanding that the rule of law means something more than the sanction by law of every governmental action. In contrast to the ‘rule of men’, which implies ‘arbitrary rule’, the rule of law is designed to minimise public and private arbitrariness, so that the rights and freedoms of the individual may be properly achieved as well as adequately preserved. As such, the rule of law involves a delimitation of governmental functions, so that the power of the state is exercised in accordance with clear, stable and general rules of law. Such rules must be promulgated in advance and enforced by an independent and impartial judiciary. By forcing the state to follow forms and procedures, law operates to reduce the possibility of any government being able to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty and property of the individual citizen.

 

 

Defining the Rule of Law

 

An underlying theme in Western legal history is that the rule of law provides at least part of the solution to the problem of ‘despotism’, here understood as the existence of abusive, external control over the life, liberty and property of the citizen.[2] In his classic text, The Spirit of Laws, Montesquieu crystallises the main aspects of despotism as follows: ‘In despotic government, one alone, without law and without rule, draws everything along by his will and his caprices.’[3] And later: ‘[T]he principle of despotic government [is] … fear.’[4]

 

Forestalling a situation in which directives issued from the government are absolute, and basic (constitutional) laws as such become worthless, the rule of law denies the state any ‘right to destroy, enslave, or designedly to impoverish the subjects’.[5] Instead, the rule of law implies that ‘government can act only through law and law checks the power of government’.[6] As such, the rule of law is historically linked to ‘an ideal undoubtedly connected with individual freedom understood as freedom from [unduly arbitrary] interference on the part of everybody, including the authorities’.[7]

 

According to the late Emeritus Professor of Jurisprudence at Birmingham University, O Hood Phillips, ‘historically, the phrase was used with reference to a belief in the existence of law possessing higher authority — whether divine or natural — than that of the law promulgated by human rulers which imposed limits on their power’.[8] Indeed, the traditional function of the rule of law, as ‘an umbrella concept for a number of legal and institutional instruments to protect citizens against the power of the state … was first coined by Plato and Aristotle … and then rediscovered and elaborated by religious scholars — notably Thomas Aquinas — during the Middle Ages’.[9]

 

On the other hand, it is also true that contemporary discussions of the rule of law often start with the views of the 19th-century English constitutional lawyer Albert Venn Dicey (1835–1922). Dicey contended that the rule of law encompasses three basic elements: (1) supremacy of the ordinary law as opposed to the exercise of arbitrary power; (2) equality of all before the ordinary law that must be administered by ordinary courts; and (3) judicial protection of individual rights that must be guaranteed in practice rather than on paper.[10]

 

Among the nations of continental Europe the rule of law is traditionally connected with classical liberalism and its perspective of a constitutional government that is ‘bound by the law in its dealings with citizens: its power is in other words limited by the individual rights of the people’.[11] The German concept of Rechtsstaat, for example, can be best translated as ‘government under the rule of law’. The term was originally conceived by leading Hanoverian jurists of the 19th century, particularly Robert von Mohl, E Brandes, A W Rehberg and F C Dahlmann, who wished topromote individual rights and freedoms as well as the doctrines of separation of government powers and limited government.

 

In those days the sovereign of Hanover was also the monarch of England. There was an obvious connection between those countries. Inspired by the English Whig tradition, Mohl coined the phraseRechtsstaatto support a set of principles that ‘irrevocably determines and secures the directions and the limits of state activity’.[12]Rechtsstaat, saysErnst-Wolfgang Böckenförde, still remains in Germany ‘primarily the recognition of fundamental civil rights … such as civil liberty (protection of personal freedom, freedom of belief and conscience, freedom of the press, freedom of movement, freedom of contract, and freedom of occupation), equality before the law, and the guarantee of (acquired) property’.[13]

 

Similarly, legal theorists in France approach the rule of law in light of classical liberal principles. BlandineKriegel, for example, defines the rule of law (État de Droit) primarily as ‘a matter of personal liberty that ‘cannot be secured absent of a certain type of state, namely … the state under the rule of law’.[14] In another book on the subject, Laurent Cohen-Tanugiargues that État de Droitexpresses an ideal of constitutional government that is opposed to Jacobinism, thus effectively provideing legal protection against any legislative encroachment upon our individual rights to life, liberty and property.[15]

 

Formal and Substantive Conceptions of the Rule of Law

 

In English-speaking countries the ongoing debate over the meaning of the rule of law has been carried out between advocates of its formal conception and those of its substantive conception. Those holding to formal conceptions contend that the rule of law encompasses attributes concerning the form of laws, such as, as a general rule, that law must be stable, publicised, clear and general. By contrast, proponents of substantive conceptions go beyond such formal descriptions to include a broader discussion concerning the legal protection of moral rights.[16] Both conceptions, however, agree that the rule of law acts as a mechanism to minimise arbitrariness in general, and political arbitrariness in particular.

 

Formal Conceptions

 

Those who subscribe to formal conceptions of the rule of law associate it with procedural and institutional requirements which are thought necessary for the implementation of ‘government under law’. They postulate a more literal interpretation of the phrase and so they focus on addressing the manner in which positive laws ought to be promulgated, as well as any other formal aspects such as their clarity and temporal dimension.[17] Paul Craig comments:

Formal conceptions of the rule of law do not … seek to pass judgement upon the actual content of the law itself. They are not concerned with whether the law is in that sense a good or a bad law, provided that formal precepts of the rule of law are themselves met.[18]

 

Joseph Raz

Joseph Raz is a legal positivist and strong proponent of the formal conception of the rule of law. According to him, the rule of law entails public authorities conducting their affairs in accordance with specific procedural requirements. This requires legislation, for example, to be mostly general, prospective, open, clear and relatively stable. Raz also contends that in every rule of law regime, independent courts should uphold certain principles of natural justice, such as fair hearings and the absence of bias. Finally, he thinks that in such regime the courts are without long delays and excessive costs, and are accessible to every citizen.[19]

 

However, as mentioned above, formal conceptions of the rule of law do not really concern themselves with substantive outcomes. Raz sees no promise of substantive justice in an ideal such as the rule of law. While his formal conception maintains that principles of procedural fairness may increase the prospects for individual autonomy, no promise of substantive justice is made. Indeed, ‘formalists’ like Raz interpret the rule of law only in terms of restraint of private violence and undue government coercion, to ensure that citizens are protected against lawlessness and anarchy.[20] Even so, the rule of law is still seen by them as encompassing nothing more than a negative value, which is therefore ‘merely designed to minimize the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be’.[21] But since Raz also believes that the rule of law is not to be confused with such values as democracy, justice and equality, he concludes, rather controversially, that:

… [a] non-democratic legal system, based on the denial of human rights, or extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.[22]

 

Substantive Conceptions

In contrast to those holding to formal conceptions, proponents of substantive conceptions of the rule of law contend that, under a rule of law system, laws must be structured around certain moral rights and duties that citizens ought to possess towards one another and the society as a whole, including state authorities. In other words, upholders of substantive conceptions make a very clear distinction between ‘good’ laws, which comply with protection of these moral rights, and ‘bad’ laws, which do not.[23]

 

Friedrich Hayek

The Austrian libertarian philosopher Friedrich Hayek was one of the leading advocates of the substantive concept of the rule of law. Hayek contended that the rule of law is a meta-legal doctrine or a political ideal concerning what the law ought to be.[24] For him, the phrase is traditionally related to ‘essential conditions of liberty under the law’.[25] In The Road to Serfdom (1944) Hayek comments:

The Rule of Law was consciously evolved only during the liberal age and is one of its greatest achievements, not only as a safeguard but as the legal embodiment of freedom. As Immanuel Kant put it …, ‘Man is free if he needs to obey no person but solely the laws’. As a vague ideal it has, however, existed at least since Roman times, and during the last few centuries it has never been as seriously threatened as it is today. The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. Thishas little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law. The fact that somebody has full legal authority to act in the way he does gives no answer to the question whether the law gives him power to act arbitrarily or whether the law prescribes unequivocally how he has to act. It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in [Nazi] Germany?[26]

 

Hayek recognised the relevance of ‘public opinion’ for the realisation of the rule of law. Since the rule of law is a doctrine about what the law ought to be, he concluded that the rule of law cannot be realised unless it forms a part of ‘the moral tradition of the community’. Its realisation depends, therefore, on how widely recognised the rule of law becomes in society, in terms of a common ideal to be shared and unquestionably accepted by most members of the community. Hence, Hayek comments in The Constitution of Liberty (1960):

From the fact that the rule of law is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator … The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestionably accepted by the majority. It is this fact that makes so very ominous the persistent attacks on the principle of the rule of law. The danger is all the greater because many of the applications of the rule of law are also ideals which we can hope to approach very closely but can never fully realize. If the ideal of the rule of law is a firm element of public opinion, legislation and jurisdiction tend to approach it more and more closely. But if it is represented as an impracticable and even undesirable ideal and people cease to strive for its realization, it will rapidly disappear. Such a society will quickly relapse into a state of arbitrary tyranny. This is what has been threatening during the last two or three generations throughout the Western world.[27]

 

In a rule of law system, says Hayek, equality before the law is prioritised and legal discrimination minimised. Legal discrimination can only acceptable, he continues, if the majority both inside and outside the discriminated group support it.[28] Although the law does not have to be the same for everybody, ‘positive discrimination’, Hayek observes, can only be acceptedif such discrimination advances the common good. As a rule, however, and for the sake of preserving formal equality, Hayek argues that legal rules must treat everybody the same, regardless of class, race, gender and so forth.

 

Ronald Dworkin

Alongside Hayek’s contribution, the jurisprudential work of the American liberal legal philosopher Ronald Dworkin is quite important in such discussions concerning the nature of the rule of law. Dworkin’s work, in a nutshell, amounts to an attack on the positivist assumption of law and morality as clearly separate concepts. His legal philosophy is self-described as ‘law as integrity’. Central to this is the question about moral principles that, if followed, would account for most of the political decisions society has taken. Such a philosophy seeks therefore to reconnect the law with morality on the basis that the nature of a legal argument lies in the moral interpretation of the existing social practices.

 

In this sense, the rule of law is defined by Dworkin as an ideal of the ‘good law’ that is inextricably linked to the idea of ‘moral rights and duties’, as well as the protection by law of ‘political rights against the state as a whole’.[29] These moral rights, according to Dworkin, comprise those social values that ‘should be recognized in positive law’, and so enforced through the courts upon the invocation of individual citizens. For Dworkin, even if these moral rights are not explicitly manifested in any particular legal rule, such rights still form the intrinsic part of every constitutional order that is based on the rule of law, because the rule of law, according to him, involves the community’s effort to capture rights and duties that are deemed by its citizens as desirable for everyone on the various grounds connected with matters of individual autonomy and justice.[30]

 

Dworkin, however, is broadly seen as a strong advocate of judicial activism. After defining the rule of law in terms of ‘the ideal of rule by an accurate public conception of individual rights’,[31] he goes on to say that, in controversial cases, court decisions ought to be based on arguments of political principle which confirm ‘that justice is in the end a matter of individual right, and not independently a matter of the public good’.[32] For Dworkin, if one were to limit the interpretative tools of the judiciary, the rights of citizens would be restricted ‘to those recognized by a limited group of people at a fixed date of history’.[33] As such, judicial activism is seen by him as a form of legal pragmatism. Were it not for this, then the rights of citizens would stagnate at their existing level, and be unable to evolve as new and unpredictable circumstances arise. In sum, Dworkin believes that judicial activism amounts to a strong type of unhindered common sense on behalf of the judiciary. Of course, by legitimising the activist behaviour of unelected judges who wish to dictate substantive policies without the proper consent of the people, Dworkin can be easily accused of ultimately promoting judicial actions that can quite easily undermine both democracy and the rule of law.

 

T R S Allan

 

English constitutional lawyerTrevor R.S. Allan believes that the rule of law refers to standards, expectations and aspirations that ‘encompass traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed’.[34] For him, compliance with procedural legal principles, such as generality, clarity, non-retroactivity, as well as (formal) equality before the law, comprise inherent moral values associated with the realisation of the rule of law. Such values, Allan continues, enhance autonomy by allowing the individual citizen the ability to organise his or her own affairs and to evaluate (and criticise) government actions in accordance with those principles.

 

Allan also argues that ‘the ultimate meaning of the rule of law’ consists in the equal dignity between citizens.[35] He asserts that in every rule of law system, basic individual rights ought to be protected by ‘an independent judiciary with authority to invalidate legislation if necessary’.[36] As a result, the rule of law would serve to promote a robust order of ‘constitutional justice’ in which ‘the law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power’.[37] Above all, Allan reminds us:

In the mouth of a British constitutional lawyer, the term ‘rule of law’ seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order. It expresses his commitment to a scheme of ideas regarded as legally fundamental. They help to define the nature of the constitution, reflecting constitutional history and generating expectations about the conduct and character of modern government … Allegiance to the rule of law is not, therefore, a technical (or even ‘lawyerly’) commitment; it is necessarily allegiance to a political philosophy — albeit a practical philosophy grounded in existing constitutional tradition.[38]

 

Jeffrey Goldsworthy

Jeffrey Goldsworthy is an Australian legal philosopher and expert on the English constitutional concept of ‘Parliamentary Sovereignty’.[39] For him, the rule of law is ‘first and foremost a political principle’; an ideal or aspiration that is subject to limitations and qualifications due to other legal principles that vary from one jurisdiction to another.[40] As a political principle, Goldsworthy contends that ‘the rule of law is a ‘supra-national’ concept of potentially universal significance, rather than a legal principle of a particular jurisdiction’.[41] Since positive law ‘might not adequately protect the rule of law’, Goldsworthy concludes that, as an ideal of legality, the rule of law requires much more than a mere ‘legal rule’.[42]

 

Goldsworthy also suggests that ‘the rule of law is about limiting or controlling what would otherwise be arbitrary power, whether it be exercised by public officials or by private citizens’.[43] Although he criticises most ‘thick’ (substantive) conceptions for being too broad and incorporating almost every political virtue,[44]he sees ‘good reasons’ to go beyond purely formal conceptions of the rule of law. For instance, Goldsworthy thinks that a country plagued by ‘entrenched corruption, populism, authoritarianism, or bitter religious, ethnic and or class conflicts’ may in actual fact necessitate ‘judicially enforceable bills of rights’ so as to make the rule of law a reality in practice and not just in theory. However, he argues, ‘much depends on culture, social structure and political organisation’.[45]

 

Elements of the Rule of Law

 

The experience garnered from many countries across the world points to the relevance of certain standards of legality perceived as necessary for the achievement of the rule of law. These standards define the basic characteristics of every legal system that is truly based on the rule of law.[46] What follows is a compilation of principles and institutions that are considered necessary for the realisation of the rule of law.[47]

1. Laws against private coercion. One of the most accepted purposes of the rule of law is that laws must prohibit any form of coercion and violence so that citizens are protected against lawlessness and anarchy.[48] As such, the check on arbitrariness which the rule of law promises is deployed not only against the government but also ‘in the private domain where arbitrary social power … needs to be checked and regulated’.[49] Indeed, as Goldsworthy points out, ‘chronic lawless violence inflicted by some citizens on others would surely be as antithetical to the rule of law as the lawless tyranny of a king or emperors’.[50]

 

Although people who are inclined to break the law may be deterred by a real possibility of punishment, this control is more effective in societies that normally respect legality by approving of those who abide by legal rules and disapproving of those who violate them. For Ralf Dahrendorf, ‘if breaches of norms become sufficiently massive the application of sanctions becomes by the same token extremely difficult and sometimes impossible’.[51] Society needs, in H L A Hart’s words, to ‘accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution’.[52] When this occurs, citizens voluntarily comply with the law and the rule of law plays a fundamental role in society, becoming the main mechanism for the regulation of human behaviour and interactions.[53]

 

2. Laws should be clear, certain, adequately publicised and normally prospective. If laws are unclear, uncertain, or not adequately publicised, people will be unable to more properly obey them, not knowing what the law really requires of them. They will be left unable to conduct their private affairs with a satisfactory level of security, owing to a lack of knowledge concerning the content of the laws affecting them. With legal certainty and clarity, wrote Neil MacCormick, citizens can ‘have reasonable security in their expectations of the conduct of others, and in particular of those holding official positions under law’.[54]

 

The rule of law does not endorse excessively vague laws that delegate to public agencies the power to deal arbitrarily with citizens.[55] A regime holding to the rule of law forbids ex post facto legislation, unless such retroactivity can be reasonably applied for the benefit of legality itself, in terms of correcting irregularities of the legal form. As Lon Fuller pointed out, ‘it is when things go wrong that the retroactive statute often becomes indispensable as a curative measure; though the proper movement of law is forward in time, we sometimes have to stop and turn about to pick up the pieces’.[56]

 

3. The rule of law implies a certain generality of law.The idea of generality asserts that laws must not contain proper names but rather apply to general classes of individuals.[57] This particular understanding of generality holds that laws should act impersonally so as to reduce the scope for discrimination.[58] The objective is not to impose a condition of substantive equality amongst the citizens but to prevent laws from unnecessarily harming individuals and/or social groups.

 

The goal of the rule of law is not to promote the interests of some people at the expense of others, but to protect everyone without any distinction whatsoever. However, the principle of equality before the law is not absolute. Public officials will need special powers that ordinary citizens do not. Even so, what this underlying principle advances is that any such legal differences should be minimised. Such special powers must be attached not to the person but to the public office or position and they have to be interpreted narrowly as being exercised only for the common good.[59]

 

The rule of law rests on ‘a strong perception that it is wrong to use the law to place the interests of some people ahead of others’.[60] As such, the rule of law is better realised when the citizens are treated equally by the law, since law in such cases ‘only pursues objectives that are good for everyone and not those that only benefit a few’.[61] Of course, this does not imply a commitment to equality of material outcomes. As Montesquieu put it, ‘as distant as heaven is from the earth, so is the true spirit of equality [before the law] from that of extreme equality’.[62] So rather then seeking to bring about material equality, the rule of law is about achieving an equitable system in which everyone is treated as equal citizens before the law, without any prejudice derived from origin, race, sex, age and any other (unreasonable) form of legal discrimination or privilege.

 

Legal generality does not necessarily require that laws always possess universal application. However, it implies ‘a rational and non-arbitrary basis for differential treatment of individuals and groups’.[63] According to Jeremy Waldron, ‘the rule of law does not prohibit the making of particular legal orders … but it insists that the making of such orders should be guided by the application of universal rules … or at least justified in terms of universal principles’.[64] Hence, generality becomes a means by which laws should reflect the community’s best interests and reject the mere will or caprices of a few powerful individuals. This does not mean, however, that laws cannot draw some distinctions based on age, sex, and so on, if there are good reasons for doing so.

 

4. Laws should be as stable as possible. The rule of law can be developed if legislation is constantly repealed or substantially modified. The aim of legal stability is to facilitate individual planning and to enable a ‘fruitful interaction’ between citizens.[65] Legal stability is therefore an important condition for citizens to know the laws with which they must comply. And yet, constant changes to the law make it extremely hard, if not impossible, for citizens to plan their lives according to law.[66] Finally, judges may also undermine the rule of law by bringing uncertainty and unpredictability to the legal system. If trials are often seen as completely uncertain and not objectively just, argues Justice Heydon of the High Court of Australia, then ‘the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases’.[67]

 

5. Laws limiting, controlling and guiding the exercise of official discretion.The rule of law regulates the sphere of action by public officials. Such officials must consider laws as ‘common standards of official behaviour and appraise critically their own and each other’s deviations as lapses’.[68] A government under the rule of law is a government whose legitimacy resides in the exercise of power in accordance with legal norms. In such a context, citizens do not owe obedience to the person who holds power but rather to the impersonal order which confers such power on him or her.[69] The idea of impersonal order as a legally circumscribed structure of power is a fundamental element of Weberian interpretation of the rule of law. According to Max Weber, the ‘rational-legal’ context of the rule of law implies ‘that the person who obeys authority does so, as it is usually stated, only in his capacity as a member of the corporate group and what he obeys is only the law’.[70]

 

In order to protect the citizen from undue political arbitrariness, there must be no detention without charge, or convictions without sufficient evidence.[71] Such circumscription stems from the principle that the citizen must be protected by due process of law. The expression ‘due process’ involves the existence of legal proceedings designed to allow anyone accused of criminal offence or civil wrong to be heard in a regular court and be informed of the nature of the accusation.[72] There is, moreover, a general agreement that ‘due process’ encompasses the presumption of innocence in criminal cases and the right to be judged impartially.[73]

 

6. The courts must be independent, impartial and accessible to everyone. In a system that adheres to the rule of law, citizens must be endowed with the basic right to submit their complaints before the impartial adjudication of an independent court system. Furthermore, access to the courts must be provided without long delays, corruption or excessive legal costs, as such issues can turn even an ‘enlightened’ legislation into a dead letter.[74]

 

Central to the rule of law tradition is a conviction that the division of governmental functions comprises ‘a critical aspect of every system of government which hopes to combine efficiency and the greatest possible exercise of personal freedom’.[75] The idea rests upon the idea that whenever the power of the state becomes too highly concentrated in the hands of a person or political agency, the risk of arbitrariness increases as a result. A truly independent judiciary may compel public authorities to respect the proper limits of the law. Brian Z Tamanaha explains the rationale for such a division of government powers:

Freedom is enhanced when the powers of the government are divided into separate compartments — typically legislative, executive, and judicial (horizontal division), and sometimes municipal, state or regional, and national (vertical division) … This division of powers promotes liberty by preventing the accumulation of total power in any single institution, setting up a form of competitive interdependence within the government.[76]

 

Some may hold that a full separation of powers (as is the case in the United States) is essential to the realisation of the rule of law. However, it is important to consider that the British constitutional system does not separate the executive branch (Cabinet) from the legislative branch (Parliament). The executive, however, does not interfere in the day-to-day workings of the English courts, and the tenure of judges has been protected from undue political pressure.[77] In 1701, the Act of Settlement conferred on English judges the right to stay in office quam diu se benegesserint (as long as behaving properly). It also required that the salaries of judges be determined by means of statutory provision. As Mortimer Sellers points out, ‘[t]he Act of Settlement was a turning point in the progress of the rule of law, which made Britain the envy of other European nations’.[78] Ever since, the law in Britain regulates both tenure and removal of judges and it requires the assent of both Houses of Parliament for their impeachment.

 

The subjection of judges to the government offers the potential to undermine all prospects of impartial administration of justice according to law. Only the members of a truly independent judiciary are enabled, in due conscience and freedom, to ‘reprimand the government and even force it to obey the law and redress injustice’.[79] On the other hand, as John R Morss says, ‘law is a constraint on the judiciary as well as on the executive’.[80] Even if an independent judiciary might serve as the ultimate guarantor of the rule of law, ensuring that nobody can violate laws with impunity, independence by itself does not guarantee impartiality, which is also one of the goals of the rule of law.[81] Independence without strict impartiality, indeed, can make judges a law unto themselves. The legal system needs therefore to ensure that the arbitrators (that is, judges) will not themselves become too arbitrary. Judges must be guided by legal norms and principles every time they pass their rulings.[82] In conclusion, even if constitutionally secured, judicial independence ‘does not necessarily deliver impartial law enforcement, which is one of the things we hope to gain from the rule of law’.[83]

 

7. The rule of law stands in opposition to extemporary decisions expressing the mere personal will of individual judges.It is generally observed that the rule of law necessitates the existence of clear, stable, general norms, which must then apply equally to everyone regardless of a person’s social status or position. Characterised in this way, the rule of law cannot be developed if judges pass rulings without being respectful of the existence and content of legal rules. This being the case, Pasquale Pasquino comments:

… the person who judges exercises, in a sense, the most worrying power of all. In daily life it is not the legislator who renders judgement or passes sentence, but the judge … The judge protects the citizen from the caprices and arbitrary will of the legislator, just as the existence of the law protects the accused from the caprices and arbitrary will of the judge.[84]

‘Unless corruption or ineptitude pervades the judiciary’, says Brian Tamanaha, ‘the rogue judge will be checked by … other judges, either sitting on the same panel or at high levels of appellate review’.[85] Hence, judges need to understand that no one, not even judges themselves, has the right to ignore the law. In fact, judges who abuse their position to satisfy their own personal interests cannot possibly be described as equitable upholders of the law. According to Murray Gleeson, a former Chief Justice of the High Court of Australia:

Judges are appointed to interpret and apply the values inherent in the law. Within the limits of the legal method, they may disagree about those values. But they have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions about the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy.[86]

In this sense, the power of judges to ‘create’ law is not to be exercised in absolute dissonance with the existing legal system. ‘Since [every judge] is bound to administer justice according to law, including legislation of which he may disapprove’, explains T R S Allan, ‘he must faithfully accord every Act of Parliament its full and proper application’.[87] Of course, one must accept that a judge may sometimes need, where there is ambiguity, vagueness, inconsistency, or a ‘gap’, to complement the existing law with innovative rulings. But it does not follow from this that he or she is authorised to ignore the law enacted by the elected parliament merely because he or she may not personally appreciate its provisions. The case against such an anti-legal judicial attitude was placed in more classical terms by the late US constitutionalist Thomas M Cooley:

The property or justice or policy of legislation, within the limits of the Constitution, is exclusively for the legislative department to determine; and the moment a court ventures to substitute its own judgement for that of the legislature, it passes beyond its legitimate authority, and enters a field where it would be impossible to set limits to its interference, except as should be prescribed in its own discretion.[88]

 

Rule of Law as a Culture of Legality

 

Regardless of which conception of the rule of law is embraced, its practical achievement appears to require a proper culture of legality.[89] Such a culture must incorporate a positive attitude towards legal norms, as would be demonstrated by a socio-political context in which ordinary citizens and public officials manifest a serious commitment to principles and institutions of the rule of law. Commitment is demonstrated by generally complying with legal rules, insisting on their compliance, criticising those who fail to comply with them, and, finally, taking whatever action is necessary to correct any lack of compliance.

 

When a government does not acknowledge any subjection to the rule of law, power will rest not so much on basic (constitutional) provisions as on the ‘concrete’ supremacy of the political ruler.[90] Political rulers who are not willing to subject themselves to a system of constitutional checks and balances can easily place themselves above the law. They may exercise their power per leges(by law) but never sub leges (under the law). ‘Law’ is then transformed into an ‘instrument for repression or at least top-down direction of subjects, and nothing more’.[91] When this occurs citizens are subject to a form of arbitrariness in which ‘law’ becomes no more than a ‘vehicle (and at times equally useful camouflage) for the exercise of unrestrained and uncivilized power’.[92]

 

At this point, it is important to consider that law is not always the primary source of political power.[93] Indeed sociologists argue that there are other ways in which society can recognise this power other than through law. On the basis of charismatic leadership, for example, the late German sociologist Max Weber explained that political power is socially endorsed by means of ‘devotion to the exceptional sanctity, heroism, or exemplary character of an individual person, and of the normative patterns or order revealed or ordained by him’.[94] This development results in a reality where ‘charisma’ is more important than law, and the rule of law is then not seen by society as the most acceptable element of power recognition. Sir Ivor Jennings noted:

If it is believed that the individual finds his greatest happiness, or best develops his soul, in a strong and powerful State, and that government implies … the unity of the nation behind a wise and beneficent leader, the rule of law is a pernicious doctrine.[95]

There is indeed a danger in exaggerating claims about what the positive law can deliver in terms of achieving the rule of law. Martin Krygier has demonstrated the intrinsic correlation between the rule of law and its socio-politico-cultural milieu.[96] According to him, the realisation of the rule of law ‘depends as much on characteristics of society as of the law, and on their interactions’.[97] As Krygier points out:

Even if you conclude that legal institutions of certain kinds are necessary to achieve [the rule of law], they will never be sufficient. The institutions … have to count in social life, and what makes law count, still more what makes it count as a restraint on arbitrary power, is one of the deepest mysteries of the rule of law, and it does not just depend on the law. For what ultimately matters is how the law affects those to whom it is directed, not how, or the particular forms in which it is sent. We, lawyers especially, know a lot about the latter but much less than we imagine about the former … What we need, and what we don’t have is a political sociology of the rule of law, but only with that will we be able to say with any confidence, though still not in one-size-fits-all terms, how to instantiate it.[98]

In this sense, Krygier observes that the rule of law is not just a matter of ‘detailed institutional design’, but an ‘interconnected cluster of values’ that can be pursued in a variety of institutional ways.[99] For him, the empirical reality that the rule of law has ‘thrived best where it was least designed’[100] is good evidence that this ideal of legality is more about a ‘social outcome’ (that is, the restriction of government arbitrariness) than just a ‘legal mechanism’.[101] In sum, Krygier understands that the achievement of the rule of law rests primarily on extra-legal circumstances of ‘social predictability’ and not only formal institutional mechanisms.[102]

 

The constitutional history of Britain provides an example that the rule of law may indeed depend less on formal recipes for legal institutional design than on the particular efforts of the community to produce socio-politico-cultural conditions of government under law. Although the country lacks a written constitution, it is still recognised as possessing a more orderly polity than the majority of its former colonies, some of which have de jure democratic constitutions. However, these constitutions ‘may be missing the tacit social approval that is needed to keep those documents alive’.[103] The rule of law was developed in Britain despite the absence of legal institutional elements of the rule of law, such as separation of government functions between the legislative and the executive as well as judicial review of legislation, which have often been regarded as essential for its realisation.[104]Tamanaha comments:

The rule of law existed [in Britain] owing to a widespread and unquestioned belief in the rule of law, in the inviolability of certain fundamental legal restraints on government, not to any specific legal mechanism. This answer to the ancient puzzle of how the law can limit itself is that it does not — attitudes about law provide the limits.[105]

 

What appears to give ‘real life’ to the rule of law lies in the socio-political environment, which according to Lawrence M Friedman, ‘is constantly at work on the law — destroying here, renewing there; invigorating here, deadening there; choosing what parts of law will operate, which parts will not; what substitutes, detours, and bypasses will spring up; what changes will take place’.[106] Hence, if compliance with laws does not rest on a firm element of public morality, then the rule of law may become ‘an impracticable and even undesirable ideal, and … society will quickly relapse into a state of arbitrary tyranny’.[107] Indeed, the realisation of the rule of law rests upon ‘an attitude of restraint, an absence of arbitrary coercion by governments or by other individuals or groups’,[108] which can only be so if society embraces a culture of legality that requires ‘the virtue of a populace that will enjoy its benefits’.[109] According to Noel B Reynolds:

The rule of law does poorly in cultures where it is not the fundamental expectation that a people has of its government … If people do not expect the rule of law and insist on it when officials move to compromise its effect, it is soon corrupted and replaced by rule of will. Rule of law seems to require this virtue of any populace that will enjoy its benefits.[110]

In conclusion, cultural and social factors indeed play a much more important role in the realisation of the rule of law than the politically correct literature on the subject appears to indicate or acknowledge. In the long run, the rule of law can never be attained only by a constitutional framework or the institutional design of a well-written constitution. Above all, the practical realisation of the rule of law requires, as Philip Selznick pointed out:

… a culture of lawfulness, that is, of routine respect, self-restraint, and deference … Furthermore, the rule of law requires public confidence in its premises as well as in its virtues. The premises include a dim but powerful understanding that positive law is always subject to correlation by standards of truth and justice. In a rule-of-law culture, positive law does not have the last word.[111]

 

The Rule of Law and its Enemies

 

The rule of law has attracted critics who have contended that the formalism and neutrality engendered by the concept may be used by the ruling elites to disguise social hierarchy and exploitation. Critical legal theorists, for example, argue that its advocacy of equality before the law comprises an ‘ideological screen’ to hide the ‘hypocritical and egoistical character of the rule of law’.[112] Relying on postmodern principles, such critics ‘dissect’ the law so as to discover subjective meanings no matter what the law objectively states. Such a critical analysis begins with the assumption that legal objectivity and impartiality are myths constructed by the socially more powerful in order to perpetuate their hegemonic power over other less powerful members of the community.

 

Whereas critical theorists of the rule of law ‘share a left-leaning or progressive outlook’, some of them have a narrower focus that ‘concentrate[s] on race and gender issues, and particularly on how the law creates or contributes to unequal power relations’.[113] Of course, there are also very strong feminist critiques of the rule of law.[114]According to feminist jurist Kelly Weisberg, ‘the values that flow from women’s material potential for physical connection are not recognised as values by the rule of law’.[115] She believes that, as a concept, the rule of law is too ‘masculine’ and that the laws ‘we actually have are both masculine in terms of their intended beneficiary and authorship’.[116]

 

Radical feminist theory (but not all feminist theory) relies and overlaps with concepts first developed in Marxist theory. One of these is the assertion that traditionally women experience some kind of ‘false consciousness’ derived from gender ideology. Accordingly, a radical Marxist reading of gender relations regards rule-of-law principles such as equality before the law as too male-centric and not taking into account the specific requirements of women. In the same way that Marxism identifies capitalism as an all-encompassing system stamping its character on the entire society, radical feminism will regard any instance of oppression against women in society as a result of ‘patriarchal society’ and, by extension, an oppression of the rule of law. Hence such feminism seeks to draw parallels between ‘gender struggle’ and the classical Marxist concept of ‘class struggle’ so that just as Marxism attributes all evil to the division of labour, radical feminism then locates it in the sexual division of labour. Accordingly, both Marxism and radical feminism will result in justice becoming captive to an ideological agenda, which may result in further instances of social injustice, because of the obvious lack of impartially weighing the respective claims of diverse citizens.

 

Critical race theorists are also strong opponents of the rule of law. They base such a criticism on parallel arguments as those of radical feminism, thus contending that the ‘autonomy, impartiality and rationality’ of the rule of law promotes the discrimination against people from cultural backgrounds who may not hold such values in high esteem. Moreover, these critical theorists claim that by focusing on these attributes the rule of law makes no allowance for different cultural backgrounds and values, so that there is a failure to take into consideration the more specific requirements of these ‘marginalised groups’.

 

Critical race theory, of course, is not about the diversity of individual choices, but only the ‘diversity of culture’. As such, individuals are often seen as organically integrated into their own respective groups, and invited to embrace their own ‘cultural values’ no matter whether these values are good or bad for themselves as mere individuals. In placing the rights of ‘groups’ above the rights of every individual, critical race theory, consciously or not, may legitimise the oppression of women and other less empowered individuals by the more powerful members of these minority groups. Indeed, multicultural policies presently advocated by critical race theorists,‘often ends up providing cover for the most reactionary beliefs and practices of other cultures, rather than encouraging the more liberal strands to develop. An attentive ear is given mostly to the community elders and traditionalists, who often are the least educated and most determined to preserve their power in the status quo.’[117] Thus some of the most oppressive beliefs and practices of a particular minority group are defended on ‘cultural grounds’, whereas the basic rights to its women or children are denied.

 

Critical race theory therefore appears to invoke a certain degree of genetic determinism by which the individual is primarily regarded as emotionally and psychologically attached to his or her particular ethnic or cultural group. Critical race theory thus flirts with the dangerous assumption that ethnic and/or cultural practices are race-specific and/or genetically oriented. In other words, the assumptions of critical race theorists may reinforce the myth that one’s moral choices and character are predetermined by one’s colour of skin or cultural background. The implications of this view are cogently explained by the Thernstroms: 

 

Racial classifications deliver the message that skin color matters–profoundly. They suggest that whites and blacks are not the same, that race and ethnicity are the qualities that really matter. They imply that individuals are defined by blood–not by character, social class, religious sentiments, age, or education. But categories appropriate to a caste system are a poor basis on which to build that community of equal citizens upon which democratic government depends.[118]

 

Postmodern jurisprudence bases its own criticism of the rule of law on parallel arguments. The rule of law, as mentioned above, requires law that is generally and objectively applied. And yet, postmodern theory argues that the rule of law is an impossible concept to realise, because neither of these two requirements can actually be fulfilled. From a postmodern perspective, reason and objective truth are simply the components of white male domination. As Farber and Sherry point out, it is an ‘article of faith’ among the postmodernists ‘that legal rules are indeterminate and serve only to disguise the law’s white male bias’.[119] Postmodernists therefore desire more fragmentation and subjectivity in the application of the law than the rule of law tradition demands. In the end, these theorists are intent on establishing ‘law’ as a tool of power for political purposes. Accordingly, law becomes not an objective standard by which to judge one’s behaviour, and preserve an orderly and more peaceful society, but rather an ideological weapon to beat political opponents into submitting to any particular point of view.[120]

 

 

Final Considerations

 

This article has critically reviewed the concept of the rule of law. The difference between formal and substantive conceptions of the rule of law was broadly discussed, as well as how the ideal of the rule of law aims to reduce the problem of governmental arbitrariness. Under a rule of law regime all public authorities, including judges and politicians, must be subject to legal rules and principles that are ‘thought to be desirable on various grounds connected with liberty and justice’.[121] While this article has revealed principles and institutions of the rule of law, it went further than this so as to explain how its practical realisation does not offer a comprehensive recipe for legal institutional design. Above all, the realisation of rule of law seems to depend upon a socio-politico-cultural milieu that requires a proper context of respect for legality and, as such, the legal rights and freedoms of the individual citizen. Of course, not everybody will agree with the ideal of the rule of law: radical critical legal theorists certainly do not. They think the rule of law is just an instrument used by the economic elites to deceive the masses and to justify socio-economic oppression that takes place in capitalist societies. Of course, this merely confirms the basic argument in this article that the realisation of the rule of law, indeed, is as much a socio-politico-cultural achievement as it is a legal institutional one.

 



[1]T Hobbes, Leviathan (1651), Ch XIII, para 62.

[2] S Ratnapala, Welfare State or Constitutional State?,Centre for Independent Studies, Sydney, 1990, p 19.

[3] Montesquieu, The Spirit of Laws (1748),Bk 2, Ch 1.

[4]ibid,Bk 3, Ch 9.

[5] J Locke, Second Treatise on Civil Government (1689), Section 135.

[6] M Schor, ‘The Rule of Law’ inD Clark (ed), Encyclopedia of Law and Society: American and Global Perspectives, Sage, London, 2005, p 231.

[7]B Leoni, Freedom and the Law, Nash,Los Angeles, 1972, p 76.

[8] O H Phillips and P Johnson, O Hood Phillips’ Constitutional and Administrative Law, Sweet & Maxwell, London, 1987, p 37.

[9]A Bedner, ‘An Elementary Approach to the Rule of Law’ (2010) 2 Hague Journal on the Rule of Law 48, p 50.

[10]A V Dicey, Introduction to the Study of the Law of the Constitution, Liberty Fund, Indianapolis/IN, 1982 (1885), pp 120–1.

[11]R C van Caenegem, An Historical Introduction to Western Constitutional Law, Cambridge University Press, Cambridge, 1995, p 15.

[12] R von Mohl, Die Philosophie des Rechts, Vol II, Pt II (1837) quoted in F A Hayek, Constitution of Liberty,Chicago University Press, Chicago, 1960, p 483.

[13] E Böckenförde, State, Society and Liberty: Studies in Political Theory and Constitutional Law, Berg, New York, 1991, p 50.

[14] B Kriegel, The State and the Rule of Law, Princeton University Press, Princeton, p 41.

[15]SeeL Cohen-Tanugi, La Métamorphose de la Démocratie Française: De l’État Jacobin à l’État de Droit, Gallimard,Paris, 1993.

[16] See J Goldsworthy, ‘Legislative Sovereignty and the Rule of Law’in T Campbell, K D Ewing and A Tomkins (eds), Sceptical Essays on Human Rights, Oxford University Press, Oxford, 2001, p 64. See also P Craig, ‘Formal and Substantive Conceptions of the Rule of Law’ (Autumn 1997) Public Law 467; ‘Constitutional Foundations, the Rule of Law and Supremacy’ (Spring 2003) Public Law 92; Richard H Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law Review 1.

[17] J Raz, The Authority of Law: Essays on Law and Morality, Oxford University Press, Oxford, 1979, p 218.

[18]Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, above note 16, p 467.

[19]Raz, above note 17, p 228.

[20] G de Q Walker, The Rule of Law: Foundations of Constitutional Democracy, Melbourne University Press, Melbourne, 1988, p 24.

[21]Raz, above note 17, p 228.

[22]ibid, p 211.

[23]Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, above note 16, p 467.

[24] F A Hayek, The Constitution of Liberty,Chicago University Press, Chicago, 1960, p 206.

[25]ibid, p 205.

[26] F A Hayek, The Road to Serfdom, Routledge, London, 2001 (1944), p 85.

[27]Hayek, above note 24, p 205.

[28]ibid, p 154.

[29]R Dworkin, Political Judges and the Rule of Law (1978) 64 Proceedings of the British Academy 259, p 262.

[30] ibid.

[31] ibid.

[32] ibid.

[33] T Sowell, ‘Judicial Activism Reconsidered’ (1989) at <http://www.amatecon.com/etext/jar/jar.html>. Originally published as ‘Essays in Public Policy No 13’, Hoover Institute, 1989.

[34] T R S Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, Clarendon Press, Oxford, 1993, p 21.

[35] T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law,Oxford University Press, Oxford, 2001, p 2.

[36] J Goldsworthy, ‘Homogenizing Constitutions’(2003) 23 Oxford Journal of Legal Studies 483, p 505.

[37]Allan, above note 34, p 44.

[38]Allan, above note 34, pp 21–2.

[39] See J Goldsworthy, The Sovereignty of Parliament, History and Philosophy, Clarendon Press, Oxford, 1999.

[40] J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge University Press,Cambridge, 2010, p 58.

[41]ibid, p 59.

[42]ibid, p 61.

[43]ibid, p 62.

[44]ibid, p 62.

[45]ibid, p 9.

[46] C L Ten, ‘Constitutionalism and the Rule of Law’ in R E Goodwin and P Pettit (eds), A Companion to Contemporary Political Philosophy, Blackwell, Cambridge/MA, 1993, p 394.

[47] These elements largely reflect the views expressed by jurists such as Lon Fuller and Joseph Raz, particularly regarding the standards the law itself must meet if it is to effectively guide action.

[48]Walker, above note 20, p 24.

[49] C Sypnowich, ‘Utopia and the Rule of Law’ inD Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order, Hart, Oxford, 1999, p 184.

[50]Goldsworthy, above note 16, p 65.

[51]R Dahrendorf, Law and Order, Stevens & Sons, London, 1985, p 33.

[52] H L A Hart, The Concept of Law, Oxford University Press, Oxford, 1961, p 113.

[53] J S Campbell, ‘The Rule of Law: The Evolution of Social Order’ in M S Eisenhower (ed), The Rule of Law: An Alternative to Violence — A Report to the National Commission on the Causes and Prevention of Violence, Aurora Publishers, Nashville/TN, 1970, p 8.

[54] N MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning, Oxford University Press, Oxford, 2005, p 16.

[55]Walker, above note 20, p 25.

[56] L Fuller, The Morality of Law,Yale University Press, New Haven/CT, 1964, p 53.

[57] T R S Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985)44 Cambridge Law Journal 111, p 114.

[58] See Fuller, above note 56, p 47.

[59]C Sampford, Retrospectivity and the Rule of Law, Oxford University Press, Oxford, 2006, p 43.

[60]J Crowe, Legal Theory, Lawbook,Sydney, 2009, p 4.

[61] ibid.

[62]Montesquieu, above note 3, Bk VIII, Ch 3.

[63] S Ratnapala, ‘Securing Constitutional Government: The Perpetual Challenge’ (2003) VIII(1) The Independent Review 9.

[64]J Waldron, ‘The Rule of Law in Contemporary Liberal Theory’ (1989) 2 Ratio Juris 79, p 81.

[65] M Krygier, ‘The Grammar of Colonial Legality: Subjects, Objects, and the Australian Rule of Law’ in G Brennan and F G Castles (eds), Australia Reshaped: 200 Years of Institutional Transformation, Cambridge University Press, Cambridge, 2002, p 234.

[66] Benjamin Constant wrote: ‘It is the imprudent multiplication of laws which in some periods has thrown discredit upon the most noble of things, on liberty itself, and made men seek refuge in the most miserable and lowest of them, servitude’ (B Constant, Political Writings, Cambridge University Press, Cambridge, 1988, p 195).

[67]D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (Jan–Feb 2003)Quadrant 10.

[68]Hart, above note 52, p 17.

[69] M Weber, Theory of Social and Economic Organization, MacMillan,New York, 1948, p 330.

[70]ibid.

[71] C Sypnowish, ‘Utopia and the Rule of Law’ in D Dyzenhaus(ed), Recrafting the Rule of Law: The Limits of Legal Order, Hart Publishing, Oxford, 1999, p 180.

[72] Some judges argue that due process protects only the guarantees of the US ‘Bill of Rights’. Others, however, contend that the courts can also protect ‘fundamental rights’ not included in that bill of rights.

[73] R Mott, Due Process of Law, Da Capo, New York, 1973, p 592. The first mention of ‘due process’ in history appeared about seven centuries ago, in 1344, when the English Parliament successfully compelled King Edward III to consent to a statutory law curbing his monarchical power. The section is worth reproducing: ‘No man of what estate or condition that he be, shall be put out of law or tenement, nor taken nor imprisoned, nor disinherited nor put to death without being brought in answer by due process of law.’ The same expression, ‘due process’, would be later on enshrined in the Fifth Amendment to the US Constitution, an amendment which says that no-one ‘shall be deprived of life, liberty, or property without a due process of law’. Finally, a similar provision is found in the famous 1868 Fourteenth Amendment to the US Constitution, which declares that it is forbidden for any state of the US Federation to ‘deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws’.

[74]Raz, above note 17, p 217.

[75] M J C Vile, Constitutionalism and the Separation of Power,2nd ed, Liberty Fund, Indianapolis/IN, 1998, p 261.

[76] B Z Tamanaha, On the Rule of Law: History, Politics, Theory,Cambridge University Press, Cambridge, 2004, p 35.

[77]S E Finer, Comparative Government, Penguin,London, 1970, p 148.

[78] M N S Sellers, ‘An Introduction to the Rule of Law in Comparative Perspective’ inM N S Sellers and T Tomaszewski, The Rule of Law in Comparative Perspective, Springer,Dordrecht, 2010, p 5.

[79]Caenegem, above note 11, p 15.

[80] J R Morss, ‘Facts, Threats and Reds: Common Law Constitutionalism and the Rule of Law’ (2009) 14(1) Deakin Law Review 79, p 98.

[81] For examples of independent but partial judiciaries, see J M Maravall, ‘Rule of Law as a Political Weapon’ inJ M Maravall and A Przeworski (eds), Democracy and the Rule of Law, Cambridge University Press, Cambridge, 2003, pp 261–315.

[82] J R Lucas, The Principle of Politics, Clarendon Press, Oxford, 1966, p 24.

[83] M Krygier, ‘The Rule of Law: An Abuser’s Guide’. Paper presented at the 13th Annual Conference on The Individual vs the State, Central European University, Budapest, 10–11 June 2005, p 19.

[84] P Pasquino, ‘One and Three: Separation of Powers and the Independence of the Judiciary in the Italian Constitution’ inJ Ferejohn, J N Rakove and J Riley (eds), Constitutional Culture and Democratic Rule, Cambridge University Press, Cambridge, 2001, p 211.

[85] B Z Tamanaha, On the Rule of Law: History, Politics, Theory,Cambridge University Press, Cambridge, 2004, p 88.

[86] M Gleeson, The Rule of Law and the Constitution — 2000 Boyer Lectures, ABC Books, Sydney, 2000, p 134.

[87]Allan, above note 57, p 130.

[88]T Cooley, Principles of Constitutional Law,Little, Brown & Co,Boston/MA, 1898, p 158.

[89]J Mazzone, ‘The Creation of a Constitutional Culture’ (2005) 40 Tulsa Law Review 671, p 686.

[90]Weber, above note 69, p 215.

[91]Krygier, above note 65, p 225.

[92] ibid.

[93] B Z Tamanaha, A General Jurisprudence of Law and Society, Oxford University Press, Oxford, 2001,p 140.

[94]Weber, above note 69, p 215.

[95] I Jennings, The Law and the Constitution, University of London Press, London, 1959, p 46.

[96] See M Krygier, ‘Ethical Positivism and the Liberalism of Fear’ in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy, and Legal Positivism, Aldershot, Ashgate, 2000, p 64. See also ‘Compared to What? Thoughts on Law and Justice’ (Dec 1993)Quadrant 49;‘Transitional Questions about the Rule of Law: Why, What, and How?’Paper delivered at the conference ‘East Central Europe: From Where to Where?’, East Central Institute for Advanced Study, Budapest, 15–17 February 2001; ‘Institutional Optimism, Cultural Pessimism and the Rule of Law’ inM Krygier and A Czarnota (eds), The Rule of Law After Communism: Problems and Prospects in East-Central Europe, Ashgate, Aldershot, 1999; ‘Rule of Law’ in N J Smelser and P B Baltes (eds), International Encyclopedia of the Social &Behavioral Sciences, 2001, p 13404.

[97]M Krygier, False Dichotomies, True Perplexities, and the Rule of Law. Paper presented at the Center for the Study of Law and Society, University of California, Berkeley, 2003, p 11.

[98]Krygier, above note 83, p 7.

[99]Krygier, ‘Rule of Law’, above note 96, p 13404.

[100] Krygier, ‘Compared to What? Thoughts on Law and Justice’, above note 96, p 52.

[101]Krygier, ‘Rule of Law’, above note 96, p 23.

[102] ibid.

[103] D W Brinkerhoff and AA Goldsmith, ‘Clientelism, Patrimonialism and Democratic Governance’.Paper prepared for US Agency for International Development — Office of Democracy and Governance, December 2002, p 4.

[104]Tamanaha, above note 85, p 56.

[105]ibid, p 58.

[106] L M Friedman, The Legal System: A Social Science Perspective, Russell Sage, New York, 1975, pp 193–4.

[107]Hayek, above note 24, p 206.

[108]Walker, above note 20, p 2.

[109]N B Reynolds, ‘Grounding the Rule of Law’ (1989) 2(1) Ratio Juris 1, p 7.

[110]ibid, p 7.

[111] P Selznick, ‘Legal Cultures and the Rule of Law’in M Krygier and A Czarnota (eds), The Rule of Law after Communism, Ashgate, Dartmouth, 1999, p 37.

[112] See R M Unger, ‘The Critical Legal Studies Movement’ (1983) 90 Harvard Law Review 561. See also J Shklar, ‘Political Theory and the Rule of Law’ in A Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology?,Carswell, Toronto, 1987. For an analysis of critical legal studies, see  A Zimmermann, Western Legal Theory: History, Concepts and Perspectives (Sydney/NSW: LexisnexisButterworths, 2013), pp.224-231.

[113] D A Farber and S Sherry, Beyond All Reason: The Radical Assault on Truth in American Law, Oxford University Press, Oxford, 1997, p 23.

[114] See N Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence, Allen and Unwin, Sydney, 1990, Chs 2–3. For a more comprehensive analysis of feminist jurisprudence, seeA Zimmermann, Western Legal Theory: History, Concepts and Perspectives, LexisnexisButterworths, Sydney/NSW,2013, pp.232-247.

[115]K Wisberg, Feminist Legal Theory Foundations, Temple University Press, Philadelphia/PA, 1993, pp 86–7.

[116] ibid.

[117]I Warraq, Why the West is Best : A Muslim Apostate’s Defense of Liberal Democracy, Encounter Books, New York/NY, 2011, p 207.

[118] S Therrnstrom and AThermstrom, America in Black and White(Simon & Schuster, 1999), p 492. In similar fashion, Pascal Bruckner comments: “There is a risk once again of transforming skin color into a barrier separating Good from Evil. Melanin vs. vitiligo: all the perjurers, all the traitors will be called Bounty Bars, Oreos, Uncle Toms – black on the outside, white on the inside. Disagreements are once again racialized: if a black person thinks differently from others, he thinks like a European, that is, he is necessarily “white”, a valet who is a ventriloquist, a traitor to his brothers … How then should we categorize mixed-race people , all those who feel neither black nor white and whose indetermination throws fanatical classifiers into a panic? … But must we for all that make negritude or Africanness a mode of thought and action, see a fundamental connection between an individual’s genetic background and his intellectual or moral qualities, or otherwise distribute the attributes of inferiority and superiority? Is there a black reason, a white reason, a war of epidermis? Since when does biology determine a person, unless we go back to twentieth-century postulates of colonial thought and “scientific” racism? Progressive thought is blind when it suggests that there can be no anti-white racism or an anti-Semitism among the formerly oppressed … But the reverse is true: racism is multiplying at exponential rates among groups and communities … and everything is explained in terms of physical characteristics, identity, purity, and difference”. – P Bruckner, The Tyranny of Guilt: An Essay on Western Masochism, Princeton University Press, Princeton, 2010, pp 85-86.

[119]Farber and Sherry, above note 113, p 39.

[120] For a more detailed analysis of postmodern theory, see A Zimmermann, Western Legal Theory: History, Concepts and Perspectives LexisnexisButterworths, Sydney/NSW, 2013, pp.254-261.

[121]J Waldron, ‘The Rule of Law in Contemporary Liberal Theory’ (1989) 2 Ratio Juris 79, p 81.





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