Rule of Law

Question 1

Rule of law is

Answer 1

widely contested but will fall into one of the 6 conceptions of rule of law

Question 2

substantive conceptions of rule of law concern with

Answer 2

includes requirements about the content of law

Question 3

formal theories of rule of law concern with

Answer 3

focus on procedure and source

Question 4

Q.What’s formal about formal theories of Rule of Law?

Answer 4

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

Question 5

Rule by law

examples

Answer 5

military regimes, authoritarian.

Question 6

II.Formal Legality:

Fuller’s theory of the “inner morality of law” 8 desired qualities that makes law inherently good

Answer 6

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

Question 7

II.Formal Legality:

On top of fuller’s 8 desired qualities, what else

Answer 7

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.

Question 8

II.Formal Legality:

On top of Raz’s criteria,

Answer 8

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.”

Question 9

Formal legality theory has

Answer 9

been wielded by international development agencies and donors in Global South

Question 10

Democratic legality

Answer 10

it gives legal rules and processes with legitimacy

Question 11

Thickest version of rule of law

Answer 11

nDemocratic legality plus socio-economic or social welfare rights.

Question 12

Dworkin terms the substantive versions of Rule of Law as the

Answer 12

rights conceptions

Question 13

The problem with rights is that they are

Answer 13

• different conceptions on content of rights
• rights are anti-democratic
• rights are unclear so interpretation will be from judges rather than elected representatives

Question 14

Formal legality is the

Answer 14

the dominant understanding of rule of law among legal theorists and lawyers

Question 15

Thinnest substantive version

Answer 15

conception of rule of law in most Western liberal democracies

Question 16

Thickest version of Rule of Law theory is

Answer 16

includes too much controversial ideas into the mix. Impractable and overburdened

Question 17

what lies outside socio-economic rights

Answer 17

politics

Question 18

rule by law

Answer 18

society is regulated by law, not morality. All gov action must be authorised by law

Question 19

According to some formal theorists

Answer 19

bring in controversial political ideals

Formal versions are neutral

Question 20

Liberal Foundations of the Rule of Law

Answer 20

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

Question 22

Morality of formal legality

what did Fuller argue

Answer 22

ROL is a moral good since it enhances individual autonomy and legal systems with formal characteristics have fair laws

Question 23

under formal legality, what limits are imposed on gov

Answer 23

gov can do anything it wishes as long its laws meets all the formal requirements

Question 24

democratic legality

where does law obtain its authority

Answer 24

from the people’s consent. judges, gov must apply the law created by the people through their representatives

Question 25

How can evil laws be produced under democratic legality

Answer 25

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

Question 26

none of the formal mechanisms ensure

Answer 26

laws enacted will be moral in content or effect

Question 27

problem with individual rights rule of law

Answer 27

liberty, property, privacy rights is contestable in meaning

Question 28

Problem with individual rights conception

judges

Answer 28

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

Question 29

Problem with individual rights conception

do judges interpret rights according to plain meaning and intention of drafters

Answer 29

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

Question 30

problem with individual rights

Dworkin on judge subjectivity

Answer 30

dworkin said judges should not consult his subjective views in interpretation of rights but the community principles making it democratic

Question 31

problem with individual rights

Dworkin on judge subjectivity

skeptics of this argument?

Answer 31

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

Question 32

when is judicialisation of politics less alarming

Answer 32

when there are authoritarian institutions

Question 33

when is judicialisation of politics alarming

Answer 33

occurs at the expense of democratic institutions

Question 34

judicial review of legislation by constitutional courts is detrimental to ROL b/c

Answer 34

intimidated by external pressure, corrupt, judiciary is highly politicised, motivated by self agendas