In Defense of “French Nonsense”

2019 ◽  
pp. 221-246
Author(s):  
Gerald J. Postema
Keyword(s):  
Rule Of Law ◽  
Political Rhetoric ◽  
Natural Rights ◽  
Alternative Conception ◽  
The Political ◽  
Constitutional Rights ◽  
Public Justification ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
Constitutional Adjudication

Buried beneath the intemperate rhetoric of Bentham’s attack on natural rights lies a serious challenge to the jurisprudence of rights in constitutional adjudication. The political rhetoric of rights, Bentham charged, is not the rhetoric of rational deliberation, but rather the rhetoric of mere assertion and counter-assertion. The language of rights supplies no determinate basis for deciding particular cases. However, Bentham saw clearly that indeterminacy threatens not objectivity—in the sense of a decision’s being ideally correct, or rationally preferred when seen “from nowhere”—but rather publicity. He argued that the indeterminacy of rights language weakens the rule of law, because it undermines conditions of genuine public justification. The language of rights provides no public standards for evaluating rights assertions. Bentham was correct to insist upon the importance of publicity in a democratic constitutional order. However, he mistakenly assumed that public justification is possible only if the demonstrability condition is met. In defense of constitutional rights jurisprudence, this chapter sketches an alternative conception of public justification and argues that public justification understood in this way is not threatened by indeterminacy.

The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication

2019 ◽  
Vol 67 (2) ◽  
pp. 435-475
Author(s):  
Richard Stacey
Keyword(s):  
Moral Reasoning ◽  
Rule Of Law ◽  
Political Community ◽  
Constitutional Rights ◽  
Public Officials ◽  
The Rule Of Law ◽  
Magnetic Attraction ◽  
Political Bargaining ◽  
Principle Of Proportionality ◽  
Constitutional Adjudication

Abstract A constitutional limitations clause manages the conflict between constitutional rights and the legislative pursuit of broader social objectives. In six paradigm postwar constitutional democracies—Canada, Germany, India, Israel, Poland, and South Africa—the principle of proportionality has emerged as the analytical fulcrum of the judicial inquiry into the constitutionality of rights limitations. Criticism of the principle of proportionality has crystallized into three main objections: proportionality analysis devalues rights by exposing them to the ordinary processes of political bargaining; it offends the rule of law because it depends on unpredictable moral reasoning; and it involves the unintelligible balancing of incommensurable goods. This Article considers, first, whether limitations jurisprudence in the paradigm countries contains responses to these objections. It argues that there are ways of meeting the devaluation and incommensurability objections, but suggests that models of analysis that purport to meet the unpredictability objection by minimizing the role of moral reasoning are undermined by the continued judicial reliance on moral reasoning in the paradigm countries. The Article argues, second, that moral reasoning maintains this magnetic attraction over judges because the conception of the rule of law at work in the paradigm countries, and which judges and other public officials are committed to upholding, compels judges and legislators to engage directly and fully with the normative commitments a political community makes and which inform its constitution. Because people reasonably disagree over the content and contours of these normative commitments, judges cannot rely on a de-moralized analysis but must make arguments intended to persuade rational, morally autonomous members of a political community how our most fundamental normative commitments should be understood by the legal system.

Cicero and Milo

1974 ◽  
Vol 64 ◽  
pp. 62-78 ◽  
Author(s):  
A. W. Lintott
Keyword(s):  
Civil War ◽  
Rule Of Law ◽  
The State ◽  
The Political ◽  
New Era ◽  
The Rule Of Law ◽  
Political Position ◽  
The Republic ◽  
Political Realignment ◽  
Political Scene

The battle of Bovillae on 18th January, 52 B.C., which led to Clodius' death, was literally treated by Cicero in a letter to Atticus as the beginning of a new era—he dated the letter by it, although over a year had elapsed. It is difficult to exaggerate the relief it afforded him from fear and humiliation for a few precious years before civil war put him once more in jeopardy. At one stroke Cicero lost his chief inimicus and the Republic lost a hostis and pestis. Moreover, the turmoil led to a political realignment for which Cicero had been striving for the last ten years—a reconciliation between the boni and Pompey, as a result of which Pompey was commissioned to put the state to rights. Cicero's behaviour in this context, especially his return to the centre of the political scene, is, one would have thought, of capital importance to the biographer of Cicero. Yet two recent English biographies have but briefly touched on the topic. It is true that, in the background of Cicero's personal drama, Caesar and Pompey were taking up positions which, as events turned out, would lead to the collapse of the Republic. However, Cicero and Milo were not to know this, nor were their opponents; friendly cooperation between the two super-politicians apparently was continuing. Politicians on all sides were still aiming to secure power and honour through the traditional Republican magistracies, and in this pursuit were prepared to use the odd mixture of violence, bribery and insistence on the strict letter of the constitution, which was becoming a popular recipe. In retrospect their obsession with the customary organs of power has a certain irony. Yet it is a testimony to the political atmosphere then. Their manoeuvres are also important because both the instability caused by the violence of Clodius and Milo, and the eventual confidence in the rule of law established under Pompey's protection, helped to determine the political position of the boni associated with Pompey in 49 B.C. Cicero's relationship with Milo is at first sight one of the more puzzling aspects of his career. What had they in common, except that Milo, like most late Republican politicians, was at one time associated with Pompey? Properly interpreted, however, this relationship may not only illuminate Cicero's own attitudes but illustrate the character of the last years of Republican politics.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

The State and Violence

2010 ◽  
Vol 8 (1) ◽  
pp. 293-296 ◽  
Author(s):  
Larry Diamond
Keyword(s):  
Conceptual Framework ◽  
Political Science ◽  
Rule Of Law ◽  
The State ◽  
Political Order ◽  
The Political ◽  
Modern State ◽  
Human History ◽  
The Rule Of Law ◽  
Social Orders

Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge 2009) offers a theory of the evolution of the modern state and an even more ambitious framework “for interpreting recorded human history.” The book raises fundamental questions about the political structuring of violence, the functions of the rule of law, and the establishment and maintenance of political order. In doing so, it speaks to a range of political scientists from a variety of methodological and subfield perspectives. We have thus invited four prominent political science scholars of violence and politics to comment on the book: Jack Snyder, Caroline Hartzell, Jean Bethke Elshtain, and Larry Diamond.

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India

2009 ◽  
Vol 68 (1) ◽  
pp. 55-100 ◽  
Author(s):  
Jonathan K. Ocko ◽  
David Gilmartin
Keyword(s):  
Rule Of Law ◽  
Social Order ◽  
The Political ◽  
British India ◽  
Fourth Section ◽  
The Rule Of Law ◽  
China And India ◽  
The People ◽  
History Of

This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

Administrative Law

2004 ◽  
Author(s):  
Jeffrey Jowell
Keyword(s):  
Twentieth Century ◽  
Great Britain ◽  
Procedural Justice ◽  
Rule Of Law ◽  
State Power ◽  
Administrative Law ◽  
Constitutional Rights ◽  
Stages Of Development ◽  
The Rule Of Law ◽  
Legal Control

This chapter examines the stages of development of administrative law in Great Britain during the twentieth century, describing the different attitudes towards the exercise of state power and its legal control over the century. It explains that the century began with a concern for procedural justice and a particular concept of the rule of law, and ended with judicial constraints upon both the procedures and the substance of official decisions, justified by constitutional rights.

The political economy of insecure property rights: insights from the Kingdom of Sicily

2019 ◽  
Vol 16 (2) ◽  
pp. 233-249 ◽  
Author(s):  
Rosolino A. Candela
Keyword(s):  
Political Economy ◽  
Property Rights ◽  
State Formation ◽  
Rule Of Law ◽  
The Political ◽  
Market Exchange ◽  
Credible Commitment ◽  
The Rule Of Law ◽  
Definition Of ◽  
The 19Th Century

AbstractHow did the evolution of the rule of law become stunted in Sicily during the 19th century? The work of economist Yoram Barzel, particularly his property-rights approach to understanding the political economy of state formation, is uniquely suited to understanding the failure of Italy's unification process to secure the rule of law in Sicily during the 19th century. This failure can be explained by a lack of a credible commitment to the rule of law in the state formation process. I argue that this lack of credible commitment manifested itself in the abolition of previously existing parliamentary institutions as an independent collective action mechanism, as well as prior constitutional agreements that existed in the Kingdom of Sicily. The resulting uncertainty over the security and legal definition of property rights over land raised the transaction costs of competing for resources through productive specialization and market exchange. In turn, it reduced the relative costs of competition for land ownership and the use of enforcement through other means, such as rent seeking or organized crime.

Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC

2006 ◽  
Vol 20 (1) ◽  
pp. 25-53 ◽  
Author(s):  
Kenneth A. Rodman
Keyword(s):  
United States ◽  
Rule Of Law ◽  
Armed Conflict ◽  
Rome Statute ◽  
Due Process ◽  
Bush Administration ◽  
The United States ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Proceedings

The critics of the ICC in the Bush administration and its supporters within the human rights community have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators. Both overestimate the ability of the court to pursue a legalism divorced from power realities. The former attribute to the court powers it is unlikely to exercise, particularly if the United States remains outside the treaty. This is due, in part, to the safeguards within the Rome Statute, but more importantly, to the court's dependence on sovereign cooperation, which will lead it to place a high premium on cultivating the good will of the most powerful states. The latter overestimate the degree to which courts by themselves can deter atrocities. The ICC's effectiveness in any particular case will therefore be dependent on the political consensus of those actors capable of wielding power in that area. They also underestimate the need to compromise justice – at least, prosecutorial justice – in cases in which bargaining and compromise are the central means of facilitating transitions from armed conflict or dictatorship, and in cases in which the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law.

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