Rule of Law Flashcards
Rule of law is
widely contested but will fall into one of the 6 conceptions of rule of law
substantive conceptions of rule of law concern with
includes requirements about the content of law
formal theories of rule of law concern with
focus on procedure and source
Q.What’s formal about formal theories of Rule of Law?
According to fuller, Politically neutral. because it is politically neutral, it is likely to command respect and adherence on its own terms
substantive theory which … also incorporates much more controversial substantive content
Rule by law
examples
military regimes, authoritarian.
II.Formal Legality:
Fuller’s theory of the “inner morality of law” 8 desired qualities that makes law inherently good
q(1) general application;
q(2) clear
q(3) public promulgation;
q(4) stable over time;
q(5) substantive consistency;
q(6) no retroactive application;
q(7) a substantial degree of adherence by officials and subjects; and
q(8) the reasonable possibility of compliance by the subjects
II.Formal Legality:
On top of fuller’s 8 desired qualities, what else
Raz adds:
q(9) the requirement of an independent judiciary;
q(10) rules of natural justice;
q(11) judicial review;
q(12) access to justice; and
q(13) limits on executive discretion.
II.Formal Legality:
On top of Raz’s criteria,
Summers includes:
q(9+) tribunals and other redress mechanisms;
q(14) civic education of citizens;
q(15) an independent legal profession;
q(16) “academic lawyers ready to criticize …. anti-rule of law attitudes of officials and judges, in particular”; and
q(17) a “free and vigilant press and media duly protected by law.”
Formal legality theory has
been wielded by international development agencies and donors in Global South
Democratic legality
it gives legal rules and processes with legitimacy
Thickest version of rule of law
nDemocratic legality plus socio-economic or social welfare rights.
Dworkin terms the substantive versions of Rule of Law as the
rights conceptions
The problem with rights is that they are
- different conceptions on content of rights
- rights are anti-democratic
- rights are unclear so interpretation will be from judges rather than elected representatives
Formal legality is the
the dominant understanding of rule of law among legal theorists and lawyers
Thinnest substantive version
conception of rule of law in most Western liberal democracies
Thickest version of Rule of Law theory is
includes too much controversial ideas into the mix. Impractable and overburdened
what lies outside socio-economic rights
politics
rule by law
society is regulated by law, not morality. All gov action must be authorised by law
According to some formal theorists
bring in controversial political ideals
Formal versions are neutral
Liberal Foundations of the Rule of Law
q Choose good life and how to pursue it
qIndividualism and autonomy – individual freedom cannot be sacrificed on the altar of collective good
qProtection against state action
Morality of formal legality
what did Fuller argue
ROL is a moral good since it enhances individual autonomy and legal systems with formal characteristics have fair laws
under formal legality, what limits are imposed on gov
gov can do anything it wishes as long its laws meets all the formal requirements
democratic legality
where does law obtain its authority
from the people’s consent. judges, gov must apply the law created by the people through their representatives
How can evil laws be produced under democratic legality
when democratic mechanisms is implemented in society w/o democratic tradition, no effort to build one or coexists with antagonistic subcultures, subgroup in society can use democracy to gain gov power and use democracy to claim legitimacy
none of the formal mechanisms ensure
laws enacted will be moral in content or effect
problem with individual rights rule of law
liberty, property, privacy rights is contestable in meaning
Problem with individual rights conception
judges
interpretation of content of rights is left to judiciary, who are not elected. also they might bring in their own subjective views to the interpretation
Problem with individual rights conception
do judges interpret rights according to plain meaning and intention of drafters
This is one of the arguments to protect law from anti-democracy and subjectivity but sometimes intention can be hard to find when rights were drafted a century ago or there was no original intention
problem with individual rights
Dworkin on judge subjectivity
dworkin said judges should not consult his subjective views in interpretation of rights but the community principles making it democratic
problem with individual rights
Dworkin on judge subjectivity
skeptics of this argument?
it is still the judge’s view of the community’s principles, hard to keep apart from judge’s own principles/personal views
odd for judges to be democratic actors when ROL structured so that the judiciary is independent so they are free from political influence and decide purely on law
when is judicialisation of politics less alarming
when there are authoritarian institutions
when is judicialisation of politics alarming
occurs at the expense of democratic institutions
judicial review of legislation by constitutional courts is detrimental to ROL b/c
intimidated by external pressure, corrupt, judiciary is highly politicised, motivated by self agendas
