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The Rule of Law: Nomos XXXVI

Edited by Ian Shapiro
Copyright Date: 1994
Published by: NYU Press
Pages: 396
https://www.jstor.org/stable/j.ctt9qg7f6
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  • Book Info
    The Rule of Law
    Book Description:

    From the sprawling remnants of the Soviet empire to the southern tip of Africa, attempts are underway to replace arbitrary political regimes with governments constrained by the rule of law. This ideal which subordinates the wills of individuals, social movements--and even, sometimes, democratically elected majorities--to the requirements of law, is here explored by leading legal and political thinkers. Part I of The Rule of Law examines the interplay of democracy and the rule of law, while Part II focusses on the centuries-old debate about the meaning of the rule of law itself. Part III takes up the constraints that rationality exercises on the rule of law. If the rule of law is desirable partly because it is rational, then departures from that rule might also be desirable in the event that they can be shown to be rational. Part IV concentrates on the limits of the rule of law, considering the tensions between liberalism and the rule of law which exist despite the fact that reasoned commitment to the rule of the law is preeminently a liberal commitment. Contributing to the volume are: Robert A. Burt (Yale University), Steven J. Burton (University of Iowa), William N. Eskridge, Jr. (Georgetown University), John Ferejohn (Stanford University), Richard Flathman (Johns Hopkins University), Gerald F. Gaus (University of Minnesota, Duluth), Jean Hampton (University of Arizona), Russell Hardin (University of Chicago), James Johnson (University of Rochester), Jack Knight (Washington University), Stephen Macedo (Harvard University), David Schmidtz (Yale University), Lawrence B. Solum (Loyola Marymount University), Michael Walzer (Princeton University), Catherine Valcke (University of Toronto), and Michael P. Zuckert (Carleton College).

    eISBN: 978-0-8147-8882-0
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. PREFACE
    (pp. xi-xii)
    I.S.
  4. CONTRIBUTORS
    (pp. xiii-xiv)
  5. INTRODUCTION
    (pp. 1-10)
    IAN SHAPIRO

    From the sprawling remnants of the Soviet empire to the southern tip of Africa, attempts are underway to replace arbitrary political regimes with governments constrained by the rule of law. This ideal, which subordinates the wills of individuals, social movements, and even, sometimes, democratically elected majorities, to the requirements of law, has always had its critics. Yet in parts of the world where the rule of law is lacking, its benefits are manifested by their absence; small wonder that the ideal persists in the modern intellectual consciousness.

    The rule of law promises predictability in social life by placing constitutional limits...

  6. PART I: DEMOCRACY AND THE RULE OF LAW

    • 1 DEMOCRACY AND THE RULE OF LAW
      (pp. 13-44)
      JEAN HAMPTON

      Prominent Soviet supporters of Boris Yeltsin who defeated the coup of August 1991, when questioned by Western reporters, argued that its defeat vindicated the Soviet people’s commitment to two important ideals: first, the ideal of democracy, and second, the ideal of the “rule of law.” The thesis of this paper is that these two ideals are connected, and that we should understand contemporary democracy as a style of government quite unlike the ancient Greek democracies heavily criticized by early modern political theorists, insofar as it is based on the idea of the rule of law and not, as ancient Greek...

    • 2 CIVIL DISOBEDIENCE AND THE RULE OF LAW—A LOCKEAN INSIGHT
      (pp. 45-62)
      CATHERINE VALCKE

      Professor Hampton’s response to the infinite regress objection voiced by Hobbes against the intelligibility of the rule of law is coherent and persuasive. Her argument is unlikely fully to satisfy participants in the social contract, however, for it fails to account for an important fact in the life of this contract, that is, civil disobedience.

      Hampton does not address the issue of civil disobedience directly, but her remarks allow for some speculations. She explains that the terms of the social contract confine the citizens’ control over the rulers to themetalevel of political action (to borrow Tarski’s typology, as...

    • 3 HOBBES, LOCKE, AND THE PROBLEM OF THE RULE OF LAW
      (pp. 63-79)
      MICHAEL P. ZUCKERT

      A lasting legacy of the Warren and Burger eras of the U.S. Supreme Court has been renewed debate about the nature of rule of law. This debate has not merely claimed space in learned journals but has also contributed to the particularly acrimonious confirmation hearings on recent Supreme Court nominees like Robert Bork and Clarence Thomas. Although the debate is not without its complexities, two polar positions recur in one form or another within it, positions sometimes identified as Hobbesean and Lockean in character.

      The so-called Hobbesean position, identified with the likes of Bork and Chief Justice Rehnquist, takes a...

    • 4 DEMOCRACY, EQUALITY, AND THE DEATH PENALTY
      (pp. 80-98)
      ROBERT A. BURT

      Imagine three of us in a common enterprise. You and I decide that he—let’s call him Boy—should give his life in order to advance our goals. Boy objects. What can we say to justify this decision?

      Democratic theory might suggest that we can invoke the principle of majority rule. Applying the standard of “one person, one vote,” each of us three had an equal opportunity to cast the deciding vote. But it is not clear that thisex antecalculation is the only or the best criterion for vindicating the equality principle in democratic decision making. Boy can...

  7. PART II: JUSTICE AND THE RULE OF LAW

    • 5 THE LEGAL CODES OF ANCIENT ISRAEL
      (pp. 101-119)
      MICHAEL WALZER

      Notice the plural form: it is not only that the Bible contains many laws but also, and more importantly, that it contains three different legal codes. The many laws are easy to understand, and it is equally easy to understand the popular wish that the yoke of the covenant be less onerous. An old folktale claims that on the day after the Sinai revelation, the Israelites rose early and marched at double speed away from the mountain so that they would not be given any more laws.¹ This did them no good. Through history the laws kept piling up—not,...

    • 6 EQUITY AND THE RULE OF LAW
      (pp. 120-147)
      LAWRENCE B. SOLUM

      One important ideal of Western legal systems is captured by the phrase “the rule of law.” A common interpretation of this ideal is expressed in the proposition that the rule of law requires a law of rules.¹ Another legal ideal is called “equity.” This second ideal is frequently interpreted as the injunction that legal decision makers sometimes ought to depart from the rules in order to do justice in particular cases. If these interpretations are correct, the two ideals are in tension. The resolution of that tension at the level of theory is the project pursued in this essay. My...

    • 7 THE RULE OF LAW, JUSTICE, AND THE POLITICS OF MODERATION
      (pp. 148-177)
      STEPHEN MACEDO

      The rule of law is central to our notion of good government: it is one of our basic political commitments and ideals. Because it is so familiar, we are apt to forget that it is not simply an ideal: it is a practical ideal, a compromise between purer moral ideals such as justice and the practical limitations of human self-government. This is to say that the rule of law is neither a simple ideal nor simply an ideal. The tension between the rule of law and more exalted ideals like justice reminds us of the “inbetweenness” of our condition.¹ Good...

    • 8 PARTICULARISM, DISCRETION, AND THE RULE OF LAW
      (pp. 178-202)
      STEVEN J. BURTON

      In “Equity and the Rule of Law,”¹ Professor Solum begins to develop an Aristotelian, “virtue-centered” theory of adjudication that responds to modern and liberal concerns about constraining judges from abuses of power while allowing them to do justice under the law. The addition to the literature of an Aristotelian theory of adjudication is a valuable contribution. I find myself in agreement with the direction of his effort in two general ways. First, the project is one within law as practical reason.² Too much American legal theory is confined to the theoretical questions introduced by Oliver Wendell Holmes, Jr., and continued...

  8. PART III: RATIONALITY AND THE RULE OF LAW

    • 9 MY UNIVERSITY’S YACHT: MORALITY AND THE RULE OF LAW
      (pp. 205-227)
      RUSSELL HARDIN

      The long-running debate over the putative moral obligation to obey the law seems, in recent decades, to be sparked by the generally accepted fact that much of the content of actual law is conventional and is not deducible from moral first principles. Yet, this conventional content seemingly becomes right, so that one should abide by theruleof law. Varied arguments have been proposed to back this claim. In recent decades it is commonly supposed that no argument will do the trick.¹

      The question whether there is a moral obligation to obey the law is typically posed as though one...

    • 10 THE INSTITUTION OF MORALITY
      (pp. 228-243)
      DAVID SCHMIDTZ

      Most of my own research lately has been on what philosophers sometimes call the “why be moral” question. What, if anything, gives people reason to be moral? This chapter considers how institutions might play a role in answering the question, and whether there is a sense in which institutions, like persons, can be moral or immoral. What would make an institution moral? Maybe this: an institution could be moral by virtue of givingpeoplea reason to be moral. That line of thought led me to conclusions that in many respects are like Russell Hardin’s. This chapter outlines the broader...

    • 11 PUBLIC CHOICE AND THE RULE OF LAW: RATIONAL CHOICE THEORIES OF STATUTORY INTERPRETATION
      (pp. 244-264)
      JACK KNIGHT and JAMES JOHNSON

      In this chapter we consider a number of recent efforts to employ rational choice models to support normative theories of statutory interpretation.¹ These efforts are grounded in the public choice tradition, which has developed a conception of politics in a democratic society that calls into question many of the bases of the legitimacy of the rule of law. This tradition has been interpreted to argue that statutes, as the product of political competition that aggregates individual preferences into collective outcomes, are incoherent as a statement of the general will of the people in a democratic society.² What makes these new...

    • 12 POLITICS, INTERPRETATION, AND THE RULE OF LAW
      (pp. 265-294)
      WILLIAM N. ESKRIDGE JR. and JOHN FEREJOHN

      We may say that a legal system satisfies the requirements of the rule of law if its commands are general, knowable, and performable.¹ Generality is the requirement that the content of law not depend on particulars such as the identities of the subjects; it is sometimes said to require that that law be rulelike (even if it is not explicitly expressed as a system of rules).² Knowability requires that law be publicly promulgated and that changes in it be prospective in their effect.³ Performability is the requirement that individuals could act in ways that satisfy its commands—particularly, that it...

  9. PART IV: LIMITS TO THE RULE OF LAW

    • 13 LIBERALISM AND THE SUSPECT ENTERPRISE OF POLITICAL INSTITUTIONALIZATION: THE CASE OF THE RULE OF LAW
      (pp. 297-327)
      RICHARD FLATHMAN

      Liberals who promote the ideals of individuality, plurality and freedom have sometimes been and ought always to be skeptical concerning institutionalism and wary of established political institutions.¹ As with “institutionalizing” a person, to institute an organization, arrangement, or procedure is to attempt to fix and to settle, to structure and to secure, to order and to control larger or smaller aspects of the thinking and acting of some number of human beings. It is to attempt to render uniform, constant, and predictable that which would otherwise be diverse, fluctuating, and uncertain. By adopting and enforcing the norms, rules, offices, and...

    • 14 PUBLIC REASON AND THE RULE OF LAW
      (pp. 328-364)
      GERALD F. GAUS

      Political and legal philosophers have identified at least four ways in which citizens and governments can be ruled by law. (1) The rule oflawis often contrasted to the rule ofmen,that is, rule by mere will or caprice of political authorities. “In this sense,” said A. V. Dicey, “the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”¹ Clearly, then, a dictator who rules through fiat based on passing whims does not rule through law. However, on many interpretations this...

  10. INDEX
    (pp. 365-382)
  11. Back Matter
    (pp. 383-383)