The ongoing process of globalization calls out for novel forms of transnational liberal–democratic decision–making. In this spirit, David Held and a group of interlocutors (especially Daniele Archibugi) propose an ambitious model of “cosmopolitan democracy.” Although the proponents of cosmopolitan democracy are right to insist that transnational liberal democracy must avoid the dangers of an excessively centralized world–state, their own efforts to do so ultimately fail. The weaknesses of their ideas about the notion of the “rule of law“ (...) generate unforeseen theoretical difficulties for their account. Any transnational network of liberal–democratic governance worth defending will need to do a better job preserving a substantial quotient of traditional rule of law virtues. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, (...) democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

The article examines how the rules on formation of contract and on mistake, contained in the various transnational model rules that have been published over the past two decades, have taken shape. The approach adopted here is based on an analysis of the ‘textual stratification’ of European private law. The relevant instruments (Convention on Contracts for the International Sale of Goods, Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts, Draft Common Frame of Reference, Principes contractuels communs) (...) are analysed and compared in their historical sequence. To what extent and why have the texts been transformed in the process? The article demonstrates that there is a very considerable common ground reflecting the state of the art of comparative research in these fields over the past hundred years. It also highlights issues on which consensus must still be reached and it suggests patterns towards reaching such consensus. It is argued that the Principles of European Contract Law, rather than the Draft Common Frame of Reference, should provide the point of departure for future discussions. The scene for the article is set by a critical examination of the concepts of contract and legal act, as used in the Draft Common Frame of Reference. (shrink)

The implementation of transnational standards — in codes of conduct, certification, and monitoring initiatives — necessarily intertwines with domestic law and other types of rules. Yet much of the existing literature overlooks or obscures this fundamental point. Indeed, scholars often err either by treating private regulatory standards as transcendent or by viewing implementation as fundamentally a technical problem. This Article argues that understanding the operation of transnational private regulation requires attention to the layering of multiple rules in a (...) given location. It develops a framework for examining this layering and illustrates it by briefly looking at two major issues—community rights in sustainable forestry standards and freedom of association in fair labor standards — and their implementation in Indonesia. In various ways, these domains illustrate how conflict and complementarity between public and private standards structure the practice of private regulation. (shrink)

The paper examines the realignment of the legal sources in an information society, by considering first of all the differences with the previous system of sources, dubbed as the “Westphalian model”. The current system is tripartite, rather than bipartite, for the sources of transnational law should be added to the traditional dichotomy between national and international law. In addition, the system is dualistic, rather than monistic, because the tools of legal constructivism, such as codes or statutes, have to be (...) complemented with the rules of customary law and contracts. In light of the canonical version of the law as a set of commands enforced through the threat of physical sanctions, however, two further novelties must be stressed, namely the soft law-tools of governance as a source of the system and the aim to embed normative constraints into technology, in order to enforce the law through the use of filtering systems, self-enforcing technologies, etc. This latter approach impacts on functions and requirements of the system, by transferring the normative side of the law from the traditional “ought to” of legal commands to what actually is on the basis of automatic techniques, thus affecting the very notion of source. The overall aim of the paper is to show that rearrangements of the legal sources are intertwined with redistributions of power and hence, a normative standpoint is needed, so as to determine whether scholars can obtain the solution that best justifies the integrity of the law before its hard cases, or the answer is a reasonable compromise between many conflicting interests. (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.

Making a first sketch of philosophical issues arising from European Community law I want to present a series of more or less obvious, and more or less interrelated dilemmas, or even 'double binds'. Deepening the community becomes incompatible with widening membership. National states seem both necessary for and obstructive in articulating transnational problems. The more democracy is needed as a warrant for the public exercise of political power in Europe, the more the very concept of democracy on a European (...) scale evades understanding. European unity presupposes a unifying rule of law, while member states have radically different conceptions of this principle. Even the very core of European integration, the common market, is subject to two conflicting and, indeed, incompatible doctrines of competition. In explaining the nature of each dilemma I will try to take my cue from the Maastricht Treaty wherever this seems suitable. Then I will elaborate on the jurisprudential problems involved in it. Finally, each section will be closed by an attempt to state the nature of these problems in philosophical terms. (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)

Making a first sketch of philosophical issues arising from European Community law I want to present a series of more or less obvious, and more or less interrelated dilemmas, or even ‘double binds’. (i) Deepening the community becomes incompatible with widening membership. (ii) National states seem both necessary for and obstructive in articulating transnational problems. (iii) The more democracy is needed as a warrant for the public exercise of political power in Europe, the more the very concept of democracy (...) on a European scale evades understanding. (iv) European unity presupposes a unifying rule of law, while member states have radically different conceptions of this principle. (v) Even the very core of European integration, the common market, is subject to two conflicting and, indeed, incompatible doctrines of competition. In explaining the nature of each dilemma I will try to take my cue from the Maastricht Treaty wherever this seems suitable. Then I will elaborate on the jurisprudential problems involved in it. Finally, each section will be closed by an attempt to state the nature of these problems in philosophical terms. (shrink)

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the (...) internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (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)

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.

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)

(2001). The rule of law and the rule of persons. Critical Review of International Social and Political Philosophy: Vol. 4, Trusting in Reason: Martin Hollis and the Philosophy of Social Action, pp. 221-251.

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)

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 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)

. 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)

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)

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.

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

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)

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)

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

"[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)

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.

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 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)

This essay examines the terms of the Judicial Oath sworn by the judges in the Athenian courts during the classical period. There is general agreement that the oath contained four basic clauses: to vote in accordance to the laws and decrees of the Athenian people, to vote about matters pertaining to the charge, to listen to both the accuser and defendant equally, and to vote or judge with one’s most fair judgment . Some scholars believe that the fourth clause gave (...) judges the right to vote according to their conscience and to ignore the law if they found it unjust. The first part of the essay shows that this clause gave judges the right to make decisions solely on the basis of their most just judgment only where the laws gave no clear guidance. It was a default clause invoked only twice in the extant orations; it was never used as justification to ignore the written laws. The second part addresses the view that the courts took political factors into account during trials. Although some trials involved leading politicians, the courts were bound by their oath to decide whether the defendant was guilty of the charge brought by the accuser. The only part of a trial where a defendant might mention his political achievements or his public largesse was at during the assessment of the penalty in a trial on a public charge. (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)

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)

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)

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)

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)

This chapter contains section titled: I II III.

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)

Understanding the rule of law in the Antipodes, that is in the Commonwealth of Australia and New Zealand, as a legal value is clear to both of these societies. The rule of law, oftentimes called the state of law, is the basis of the system of values, as well as legal culture, which determines which social values are legally protected and how high their position de facto and de iure is. The hierarchy of the rule of law (...) in the Antipodes shows undoubtedly how various legal norms, unwritten and those codified ones, protect the democratic system with all its principles, along with the rights and freedoms of citizens and persons residing in these two countries. (shrink)

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)