Rule of Law

What did Kelsen say about the state and the law?

The state is the law; all state actions are legal

How did Schmitt view the relationship between the state and the law?

the state can act beyond the law, especially in crises

How does law apply differently to individuals vs the state?

individuals are free (usually) and the state must have legal authorization to act

What are the core elements of the rule of law?

constraint of power, universal application, clarity, and supremacy of law

What did Plato and Aristotle say about the law?

the best ruler follows the law vs the law should rule and not will

How did medieval thought influence the rule of law?

kings had limits and people could resist tyrants

What is the significance of early modernity for the rule of law?

it was an action against absolutism and unchecked royal power

What is modern rule of law about?

popular sovereignty, equality before law, human rights, and universal rights/duties

What did Locke contribute?

law protects liberty, rulers need consent of the governed

What are the main critiques of the rule of law?

marxists: law hides unfairness, far-right: law stops the nation

Who promotes rule of law after ww2?

UN, EU, Council of Europe, and post-socialist countries

Difference between formalist and substantive rule of law?

laws clarity and no retroactivity vs. adds democracy, human rights, and public participation

Can law fully control politics?

Kelsen says yes and Schmitt says no because crises require decisions beyond the law

What is the rule of law?

legal limits on power; must obey the law

What is the main purpose of the rule of law?

to counter arbitrariness, and ensure predictability, fairness, and clear standards

What are the core features of the rule of law?

applies to all, public, predictable, non-retroactive, enforced, understandable, and applied by independent institutions

What is the relationship between the rule of law and democracy?

they are interdependent, full democracy needs ROL

What is an example of ROL without democracy?

Enlightened Absolutism; clear rules but limited citizen power

What is an example of a democracy without ROL?

Ancient Athens: direct citizen rule without clear rules

How does modern political theory view democracy and rule of law?

They are interdependent but drift apart in practice

How are human rights connected?

ROL provides framework to defend human rights