Lecture 2 - Rule of Law Theories

What is the central theme of Craig's article?

The distinction between formal and substantive meanings of the rule of law

What do formal conceptions of the rule of law address?

The manner in which the law was promulgated, the clarity of the norm, and the temporal dimension of the norm

What is the focus of formal conceptions of the rule of law?

They do not seek to pass judgment upon the actual content of the law itself

What do those who espouse substantive conceptions of the rule of law seek to do?

They seek to go beyond the formal attributes and argue that certain substantive rights are based on, or derived from, the rule of law

According to Raz, what happens if the rule of law is the rule of the good law?

To explain its nature is to propound a complete social philosophy, and the term lacks any useful function

What does Raz say the rule of law should not be confused with?

Democracy, justice, equality, human rights, or respect for persons

Why does Raz insist that the rule of law should be seen in formal terms?

Because if the rule of law is taken to encompass the necessity for “good laws” then the concept ceases to have any useful independent function

According to Raz, what is an important aspect of the rule of law, other than laws being passed in the correct legal manner?

The laws thus promulgated should be capable of guiding one's conduct in order that one can plan one's life

List some of the specific attributes that laws should have, according to Raz, to comply with the rule of law.

Laws should be prospective, relatively stable, guided by open, general, and clear rules; there should be an independent judiciary and access to the courts; and the discretion of law enforcement agencies should be limited

According to Raz, is the rule of law the only virtue of a legal system?

No, it is only one virtue and may have to be sacrificed to attain other desired ends

What was Dicey's first limb of the rule of law?

No man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts

Was Dicey's first principle formalistic or substantive?

Formalistic

What is Dicey's formulation of equality concerned with?

Primarily with formal access to the courts, not with the nature of the rules which individuals will find when they get there

According to Dworkin, how should courts decide legal questions?

According to the best theory of justice

What does the substantive view of the rule of law require?

The articulation of not simply general concepts of liberty and equality, but that the particular conception of these broader concepts be revealed

What does Krygier suggest is the proper place to start when discussing the rule of law?

With the question of why one might want the rule of law, not what it is made up of

According to Krygier, what is the rule of law not?

A natural object or a human artifact you can point to. It occurs insofar as a valued state of affairs exists, one to which we gesture by saying the law rules

What does Krygier say about judicial independence as a standard Rule of Law indicator?

Unless independence is assumed a priori to be good for the rule of law, the relationship between indicator and indicatee is altogether more problematic than it may seem.

What is goal displacement, according to Krygier?

When means are substituted for ends, often unconsciously, and people busy themselves with checklists and recipes, often modeled on alien and distant originals, with scant reflection on the purpose(s) of the rule of law or the proper purposes of their own enterprise.

What is a first take on ends intrinsic to the rule of law, according to Krygier?

They involve legal reduction of the possibility of arbitrary exercise of power by those in a position to wield significant power

What does Waldron emphasise that the law must accommodate?

People's own inner lives and particular "perspectives on the world"

According to Palombella, what does the rule of law require?

Besides the laws that bend to the will of governments, "'another' positive law should be available, which is located somehow outside the purview of the (legitimate) government"

According to Krygier, where are some of the deepest conditions and most profound consequences of the rule of law found?

Not within legal institutions

What does Krygier mean by being a "contextual universalist" with regard to the rule of law?

Universalist about the value of it, deeply contextual about how to get there

Name three conceptions of the rule of law and who represents them.

Formal (Raz, Dicey, Fuller), Substantive (Dworkin, Laws, Allan), and Procedural (Waldron)

What is the teleological view of the rule of law, according to Krygier?

Focus on the telos (internal point or purpose) of the rule of law, which is the reduction of arbitrary exercise of power

What does Waldron say about the features that people call attention to regarding the Rule of Law around the world?

They are not necessarily the features that legal philosophers have emphasized in their academic conceptions