The Rule of Law Flashcards
(10 cards)
What are the putative requirements of the rule of law?
Lon Fuller
Argues that to comply with the rule of law, law must be stable, open, general, clear, prospective, consistent, capable of being obeyed and upheld
Raz
Gives some further principles that could be used, this is incomplete and others could be mentioned
- Laws should be prospective, open and clear
- Laws should be relatively stable
- Making of laws should be guided by open, general and clear rules
- Independence of the judiciary must be guaranteed
- Principles of natural justice must be observed
- Courts should be easily accessible
How does Lord Bingham extend the rule of law?
- Extends to include human rights
- Thinks law must give adequate protection of fundamental human rights
- Raz thinks a non-democractic legal system could better comply to the rule of law
- Focuses on how the UDHR says human rights should be protected by the rule of law and the European Commission thinking the two are interlinked
How have theorists push backed on the idea of human rights being included in the rule of law?
Marmor
When a complicated idea becomes a popular political slogan, the ideas associated with it become confused, rule of law would lose analytical power and simply become a moral-political philosophy
Raz
The rule of law is simply one moral virtue law should possess, but not the only one
- List given by Bingham is an assembly of diverse principles, not a principle or doctrine
- Nothing is achieved by listing them all as though they share importance or rationale
What is the guidance view of the rule of law?
The rule of law consists of requirements that the law must possess to guide conduct
- Marmor, Raz and Kramer all argue that guidance view is what unites the requirements of the rule of law
- Raz says the rule of law has two aspects: people should be ruled by the law and obey it, and that the law should be such that people will be able to be guided by it
- If the law is to obeyed, it must be capable of guiding the behaviour of its subjects
Guidance corresponds to important values, treating people as agents who can choose to act as the ruler wishes
What is the alternative to the guidance view?
Law would simply prod us along through coercion etc., missing out on an important way for autonomy to be respected
- Hart, this is misleading, what a legal system does is to guide individuals choices bu presenting them with reasons for exercising choice in one way, but leaving them free to decide
- Raz, rule of law is another mode of protecting personal freedom, necessary if we are to respect human dignity
What does Raz argue about the value of the rule of law?
Negative value, it is desgined to minimize the danger created by the law itself
- Conformity to it does not cause good in itself except through avoiding evil, and this evil could only be caused by the law itself
- Rule of law is not a moral virtue, it is a necessary condition to have law in the first place
What arguments have been advanced to say that a legal system is better because it conforms to the rule of law?
Simmonds: Choice to govern by law serves the moral value of preserving those subjects independence, failures to comply with Fuller’s principles are a matter of moral regret
Waldron: Governing through law recognises the capacities that we have for self control and monitoring
How does Kramer respond to views that their is moral worth in following the rule of law?
Rule of law is not inherently moral. A wicked regime may adhere to the rule of law, not because they are committed to fairness, but because it increases their ability to maintain power
- A regime may conform to the rule of law but adopt slavery, which is an obvious affront to human dignity
- Simmonds contends that a wicked government will eventually end up using extra-legal force against its opponents
- However Kramer argues this isnt neccessarily true, they may have good reasons to not use extra violence as such could reduce the incentives to obey the law
What is the difference between a formal and substantive conception of the rule of law?
Craig
- Formal conceptions of the rule of law address the manner in which the law was made known, clarity of the ensuing norm and the dimension of the enacted norm. They do not seek to pass judgement on the content of the law itself; whether it is good or bad
- Substantive conceptions accept the formal attributes, certain substantive rights are derived from the rule of law, and thus distinguish between good and bad laws, based on whether they comply with these rights
What may be a better taxonomy for the rule of law?
Think in two dimensions, the rule of law can be wide or narrow and thick or thin
* Wide or Narrow: The former covers more grounds and encompasses more into the rule of law, the latter is more restrictive
* Thick or Thin: The former is morally loaded, sees it as a moral idea whilst the latter remains neutral, not that the rule of law adds anything
