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)

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)

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)

This chapter contains section titled: What is the Difference between Moral Rules and Laws? Judicial Activism The Role of Judges Dissent and Democracy Conscientious Objectors.

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.

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)

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)

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 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.

This book explores aspects of indigenous Yoruba philosophy of law and relates this philosophy to the Yoruba indigenous traditions of governance. It is written with an appreciation of the relevance of the Yoruba traditions of law and governance to contemporary African experiments with imported Western democracy in the twenty-first century.

The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide (...) the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page). (shrink)

This chapter contains section titled: I II III.

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)

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)

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.

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)

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)

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)

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)

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)

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)

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)

. 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)

The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law (...) is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society. (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate (...) with human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

Jury nullification occurs when a jury votes to acquit a defendant in a criminal trial despite its belief that the defendant is, in fact, guilty. One of the main objections to this practice is that it subverts the rule of law. In this paper, I examine this objection by expanding on what is entailed by the rule of law objection and demonstrating that the very principles that the rule of law are built upon – liberty and autonomy (...) – are, in fact, preserved and promoted, and not subverted by, jury nullification. (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)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is (...) no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

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)

The presidential pardon as it currently exists is a violation of the separation of powers, checks and balances, and rule of law. With the exception of impeachment, the pardon power of the president is not subject to judicial review. The court has no rights to deny a pardon even though it may violate many explicit laws and implicit values of the constitution. It seems clear that the current form of the presidential power is a usurpation of the role of (...) the judiciary making the president judge and jury combining as it does the legislative and judicial function in the presidency. This unilateral and essentially unchecked power of the presidency threatens the consistency and unity of the government for it is independent and beyond the scope of legal restraint of the other branches of government. (shrink)

Fair-play theories of political obligation hold that persons have a duty to obey the law based on the fact that they benefit from the law and have a duty of reciprocity to comply in return. These accounts are vulnerable to the open-ended reciprocity challenge, according to which persons have discretion over how they discharge debts of reciprocity, such that they may discharge the debts they incur from being members of society in ways other than compliance with the law. I defend (...) fair-play theories against this challenge by arguing that the principle of reciprocity shares a ground with the principle of public equality, and that the latter ultimately requires that legal institutions be arranged in such a way that persons may not exercise discretion over how they discharge the debts of reciprocity that they incur from others’ compliance with the law. (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)

This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test - states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive - in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with (...) the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers. (shrink)

Although the concept of Rule of Law has been revived and developed vigorously by mid‐twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.

Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist ‐ or at least some of his followers on the contemporary British and American political scene ‐ have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule (...) of law to social justice. (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)

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)

“FITNESS FOR THE RULE OF LAW” lends itself to a variety of treatments. I should make clear at the outset one treatment that I do not intend to provide under this heading, even if it is implicitly represented here and there in this essay. I will not examine psychological or psychiatric conceptions of “fitness” as these are featured in, for example, the “insanity defense” or in tests of testamentary capacity. A recent book of mine explores these issues in some (...) historical and analytical detail, but this is a vast and complex subject falling beyond the scope of what I hope to clarify here. I shall assume throughout that the minimal conditions by which one becomes fit for the rule of law are satisfied, and will focus then on how one’s potentialities for life within such a context are realized. (shrink)

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality (...) lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law. (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)