The Rule of Law
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This paper will discuss the rule of law, including the various theories presented on the subject and the criticisms of these theories. Much of the paper will focus upon the liberal democratic theories on the rule of law, since it has largely been examined in this context. Although some argue that a liberal democratic society is not necessary for the development of the rule of law, this paper will argue that only in a liberal democratic society can the rule of law be developed to the fullest extent possible. Thus, this paper will tend to favor a values interpretation of the rule of law, over an institutional approach. According to most commentators, the rule of law is a doctrine which reconciles the conflicting forces of power and law. Power stands for the possession and application of arbitrary might, while law is represents the limitation of power through institutions and/or individual rights in such a way that conforms with established patterns of expectations and the values of a people. On their own, neither power nor law can form the foundation of a stable government, since power is capricious, coercive, and unpredictable, while law can become inflexible and difficult to adapt to changing conditions. (Walker, 1988, p. 1). The rule of law is both a description of the existing legal order and an ideal towards which the legal order must move. As an ideal, the rule of law sets a standard for securing certainty in human rel
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es, especially, should not be imposed unless the rules violated were announced in advance. Fourth, statutes and other legal rules should be general in statement, rather than aimed at particular individuals. Fifth, legal decisions should reflect the idea that similar cases should be treated similarly; any distinctions must be justified by referring to relevant legal rules and principles. Sixth, fair and orderly procedures must be used when determining cases. Seventh, the legal system must recognize the defense of impossibility of performance or mitigating circumstances. (Solum, 1994, p. 122).
The definition advanced by Professor Solum closely parallels that of John Rawls. Rawls, however, has been criticized for ignoring some crucial elements, such as the independence of the judiciary and the need for laws to be generally congruent with public attitudes. Rawls instead focused upon the laws promulgated by authority, rather than the protections for the procedures used in implementing those laws. This criticism may stem from Rawls avoidance of tying the rule of law with certain political values. (Walker, 1988, p. 19).
Other theories look more to the philosophical aspects of government and law. Thomas Hobbes saw the rule o
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Some common words found in the essay are:
Approaches According, Focusing Formalism, Iran Islamic, Varying Definitions, John Locke, Law Feminist, Thomas Hobbes, rule law, Rule Law, Hobbes Locke, Criticism Marxists, liberal democratic, walker 1988, 1994 pp, zuckert 1994, natural inequality, values approach, zuckert 1994 pp, walker 1988 pp, institutional approach, democratic society, hart 1961, definition rule law, liberal democratic values, hart 1961 pp,
Approximate Word count = 3293
Approximate Pages = 13 (250 words per page)
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