This chapter contains sections titled: Feudalism Magna Carta28 The Basic Idea: No One Is Above the Law The Modern West Takes Shape From Law to Commerce Equality Before the Law Conclusion Discussion Acknowledgments.

For more than a decade now a profound rule-of-law crisis has gripped the European Union, and while the fight for the rule of law has topped not only the academic but also the judicial and political agenda, the results have been disappointingly meagre. This article argues that the main reason for that should be sought in a political strategic move of justifying the assaults on the rule of law by resorting to an “illiberal democracy.” This premeditated political (...) narrative shift has unleashed onto the political sphere and onto public discourse at large comprehensive doctrines which had hitherto been left dormant thanks to an overlapping consensus on the rule of law as a central building block of the political conception of justice à la Rawls. Once this overlapping consensus was broken, the rule of law itself lost its neutral character as a referee on the right among the many conceptions of the good, itself becoming part of the highly politicized power play for dominance among irreconcilable—liberal and illiberal—comprehensive doctrines. The overlapping consensus in the EU is thus broken, but there are no conceptual reasons inherent to the rule of law itself for which it could not be rebuilt in the future. (shrink)

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 (...) a state, beyond the rather trite beliefs that the law rather than individuals rule, and that no one is above the law, if a state is to be admitted to the European Union of states? I want to suggest that its principal purpose has been to guard against arbitrary rule, and if the rule of law is to be a substantive criterion for expansion of the European Union it must be cognizant of what the criterion entails, and face up to the implications for admitting states with cultures where the rule of law has not featured significantly in their political and social landscapes. The article looks at one of the most sophisticated attempts to delineate the ideal character of the rule of law in recent philosophy, namely that of Michael Oakeshott, to clarify the meaning that it has in its use in modern European history and in relation to the modern European state. (shrink)

When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the (...) 'World Bank model' of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives. (shrink)

This chapter contains section titled: I II III.

We propose hereafter an analysis of the way in which the post-communism has determined the significance of justice and, in doing so, pretended to reorganize the possibility for a legitimate political community. Given that the public perception points out to a gap between the rule of law and justice, one should understand for what reasons. Does the rule of law have the resources for doing justice? Are the legal procedures enough? Or should we take into consideration the possibility (...) that the rule of law is unable to do justice? Subsequently, we identify and discuss three radicalizations: the issue of normativity, the rogue state and the heterogeneity between law and justice. Ultimately, the possibility of justice depends on a different way of thinking democracy. (shrink)

This paper argues for a theory of the rule of law that is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron, and Allan, by showing that their theories presuppose that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals, as well as certain humans who do not have rational capacities. If we view the basic idea of the rule of law as (...) restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether endowed with rational capacities or not, can all be victims of arbitrary power. So, we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. This paper sets out such an inclusive theory. (shrink)

In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law (...) does not require citizens to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow. (shrink)

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the (...) class='Hi'>Rule of Law. By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)

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 (...) I ask what counts as a ‘deficit’ in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable. (shrink)

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, (...) how they have sustained it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society. (shrink)

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.

The rule of law is politico-legal realm of the modern society that it balances human gratifications, self-respect and prerequisites of legal order, after dissolution of the traditional society. Apart from our criticisms on the capitalist society there had been an expanding development of civic virtue of the human individual since early beginning of capitalism up to the 1980’ies when idea of self respect and the legal order relatively balanced. But, after neo-liberalism, the development is retrieving to the unbridled individualism, (...) detrimental to the human virtue of all humanity. (shrink)

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as (...) ominous evidence of the rule of law's fragility in modern liberal democracy. (shrink)

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 (...) something has to meet in order to be law or as an aspirational standard identifying what it means to be good law. In combination these two distinctions define a range of perspectives on the nature of the Rule of Law that are complementary rather than mutually exclusive. (shrink)

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 (...) lifelong commitment to carry out what, in the end, he regards as the most reasonable course of action. The author then considers two contemporary ethical issues: our way of coming to know the natural law and the proper understanding of laws that allow of exceptions. Regarding the first, he argues—consistently with what we find not only in the Crito but also in Aristotle and Thomas Aquinas—that we come to know the natural law through being immersed in the laws and customs of a particular society: the more just the society, the better access to the natural law it provides. Regarding the second, he argues that an article in Aquinas is sometimes interpreted as suggesting that the realm of concrete human experience is beyond the reach of law. He argues, in the spirit of the historical Socrates, that the rule of law is equivalent to the rule of reason and that this does reach into the realm of concrete human experience, where exceptions are sometimes recognized as contained in the law. (shrink)

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 (...) freedom. Such an understanding of the rule of law illuminates why the law-like character of God and the revelation of God’s law make human free will meaningful and a relationship of love between God and human beings possible. A commitment to the rule of law also means that those exercising power have to offer justifications to explain why the rules are binding, which opens up space for debate about whether the rules are just. (shrink)

. The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering (...) some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international legal systems, pointing out the challenge coming from the development of "super partes" international law and jus cogens. The question concerning the appeal to the rule of law will be made: Can our attitude to the rule of international law be exempted from consistency with the rule of law that we claim for our domestic system? In order to answer this question (in the negative), an appropriate theoretical perspective is eventually proposed and displayed. (shrink)

What moral claims do undocumented immigrants have to membership? Joseph Carens has argued that illegal migrants with long-term residence have a claim to national membership because they already are de facto members of local communities. This article builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from membership-based arguments to the rule of law. I argue that the rule of law, as expressed in the principle of legal (...) certainty, provides an alternative justification for the regularization of resident undocumented migrants. The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and nonarbitrary. Thus, as an expression of legal certainty, both civil and criminal codes have statutes of limitation that place a time limit beyond which most crimes and misdemeanors can no longer be prosecuted, and individuals can move on with their lives. Not only do these statutes recognize the individual’s right to be free from arbitrary state control, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. I contend that, in the absence of a statute of limitation on illegal entry, the deportation of settled migrants constitutes an arbitrary act of state power. The article explores a number of judicial rulings to illustrate the argument’s normative logic. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding (...) the role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that (...) have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

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.

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 (...) a number of distinct though overlapping dimensions. Although the connections between objectivity and the rule of law are intimate, they are also densely multi-faceted. (shrink)

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 (...) be prepared to have the same rules applied to them as everyone else. (shrink)

One of the remarkable features of the turmoil surrounding the counting and recounting of votes in the State of Florida in the 2000 US Presidential Election was the frequency with which "the Rule of Law" was invoked. Whether the antagonists in Florida knew it or not, they are in fact aspects of a venerable heritage of contestation that comes down to us as part and parcel of the Rule-of-Law tradition. The fact that "the Rule of Law" has (...) always evoked this contestation has led some to surmise that an old article by a linguistic philosopher, W.B. Gallie, entitled, "Essentially Contested Concepts" might afford the most fruitful basis for approaching the analysis of the term. (shrink)

The rule of law is widely perceived to be a public law doctrine, concerned with the way governmental authority conforms to dictates of law. This book explores the idea that the rule of law instead concerns the conditions under which any relationship - that among citizens as well as that between citizens and the state - becomes subject to law.

Le rule of law et l’ordre public sont deux composantes essentielles du vivre ensemble dans la société britannique. La présente étude a pour objet de revenir sur la conception de ces deux notions qui sont de plus en plus en tension dans un contexte où les impératifs d’ordre public semblent supplanter les présupposés libéraux qui fondent le rule of law.

In this essay I will attempt to explain the relation between the rule of law and the economic development. First I will describe the rule of law and its role through the years. Then, I will continue with the connection between economic development and the rule of law. I will try to clarify Macedonia’s legal framework and emphasize the constitution and its role regarding the rule of law and economic development. Latter, I will focus on the (...) EU’s report on our economy in our journey towards the union. And finally I will give something to think about for future researchers. (shrink)

Hegel’s definition of the state as a common public authority in The German Constitution marks his first thorough attempt to understand the authority of the modern state in terms of the rule of law. Such an understanding of the state constitutes an important advance in Hegel’s political philosophy since, in his early political-theological writings, the legal relation was in essence excluded from the political sphere. Positing a fundamental opposition between legality and authentic ethical life, Hegel interpreted societies in which (...) legal forms become particularly pronounced as societies founded on degenerate political institutions and caught up in an inexorable process of decline. Until Hegel grasped the positive ethical significance of legal authority, something accomplished in The German Constitution, his theory of the state remained largely determined by a Greek-inspired, virtue-based paradigm of political life. Only with the overcoming of this paradigm could he move to a comprehensive analysis of both modern institutional structures and the political theories that attempt to understand and justify them. Hegel’s evolving theory of modern legal form thus provides an important index and measure of his complex stance toward modern political society and of his critical assessment of the self-interpretations of modernity offered by the natural right tradition and the Enlightenment. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." (...) "[T]he essense of the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

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 (...) securing legal certainty. Defeasible certainty is the most that is desirable or achievable. (shrink)

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social (...) order. (shrink)

Rule of law is a concept that is regularly debated by legal philosophers, often in connection to discussion of the concept of law. In this article, the focus is not on the substance of the conceptual claims, but on the methodologies employed by legal philosophers, investigating seminal articles on the rule of law by Joseph Raz and Jeremy Waldron. I argue that their philosophical argumentations often crucially depend on empirical or legal doctrinal arguments. However, these arguments remain underdeveloped. (...) I explore how these arguments could be linked to approaches related to rule of law in different fields of legal scholarship and investigate how the methodologies of these fields may complement each other. Thus, the article aims to provide an argument for a specific form of triangulation of three kinds of approaches to the rule of law: philosophical, social-scientific and legal doctrinal. This method of triangulation is illustrated by a discussion of the World Justice Project’s Rule of Law Index. (shrink)

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 (...) I ask what counts as a 'deficit' in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable. (shrink)

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.

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.

This article examines the regulation of religious policy and state-confessional relations in Kazakhstan. Religion is an integral part of the spiritual life in secular Kazakhstan, and religious values are embedded within the value paradigm of Kazakhstani identity. In this context, there is a need to model secularism based on the rule of law, human rights, and personal freedoms. The purpose of this article is to conceptualize "Kazakhstani secularism" and "Kazakhstani religiosity," identifying their differences and the universality of their value (...) meanings. this study employed a mixed methodology using both qualitative and quantitative strategies to examine the regulation of religion within Kazakhstan's secular framework, aiming to uncover underlying principles, assess current practices, and suggest improvements that align with international standards. The concept of secularism in Kazakhstan has evolved due to historical chronotopes, challenges of modernity, and ideological discourses, yet the legal provision of religious freedoms remains a constant principle. The authors argue that it is necessary to enhance the policy of interconfessional and state-confessional relations, transitioning to a policy of dialogue aimed at consolidating Kazakhstani society, alleviating social tensions, and fostering unity. (shrink)

Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the (...) rule of law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it. (shrink)

On 5th June 1989 an unknown man stopped the leading tank in a column entering Tiananmen Square, Beijing. His ultimate fate is unknown. His courage reflects the dilemma of brave people faced by the force of authority. The rule of law attempts to control excess of authority, but is often ineffective and illusory. Realist jurisprudence acknowledges that the law is often flawed and unfairly administered and that the rule of law is an illusion. This book discusses the question (...) what then should the individual do? It suggests that ethical realism is a wise approach: acknowledging that in reality the law is flawed, but attempting when possible to do what ethics suggest, applying the classical concept of internal or virtue ethics. This approach has practical applications-- It would be ethical to have a 2 state solution in the Middle East as was resolved by the UN General Assembly in 1947; it would be ethical for the UK to remain in the EEA established by the Treaty of Rome after 48.7% of UK voters wanted to remain and when the 2016 referendum and 2017 legislation referred only to the EU. In the early 1960s I attended the realist jurisprudence lectures at Oxford and came away with a belief that the rule of law is an ideal rather than a reality but a belief that ethics encourage the individual to do what can be done in practice to alleviate failures of the rule of law. (shrink)

The article discusses the relation between political office and the rule of law in Plato’s dialogue Statesman. Taking its starting-point from an observation about the Statesman’s peculiar approach to constitutional analysis, the article argues that what Plato is concerned to show is how the reconceptualisation of the role of law in government proposed in that dialogue has important implications for what we take the role of the institution of office-holding to be. While Greek political tradition held the main aim (...) of archē to be the formal circumscription and control of official power within a constitutional order, Plato insists that it should primarily be understood as ensuring that the exercise of political power approximates, by means of law, the ideal rule by a political expert. The article ends by pointing out how this reading complements another recent discussion of office-holding in the Statesman. (shrink)

Según una sofisticada versión del llamado rule of law, las reglas del derecho deben ser generales, en el sentido de que deben regular clases de casos, no situaciones particulares. La posibilidad de prever cuáles van a ser las decisiones jurídicas depende, entre otras cosas, de este carácter general de las normas. Pero junto a la previsibilidad y certeza que aporta, el carácter general de las reglas puede tener un reverso negativo: en algunas ocasiones, cuando se aplican a algunas circunstancias (...) particulares, lo que parecía funcionar de forma satisfactoria en la teoría o en abstracto, proporciona soluciones inadmisibles (inadmisibles con arreglo a alguna concepción de la justicia). Esos casos son conocidos como casos recalcitrantes. En este artículo propongo una manera de entender el razonamiento jurídico-práctico que mitiga ese reverso negativo de las reglas generales conservando buena parte de la certeza que aportan. (shrink)