Profit, Persuasion, and Fidelity: Why People Follow the Rule of Law

2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Michael Ilg
Keyword(s):  
Rule Of Law ◽  
Individual Interest ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Third ◽  
Local Official ◽  
Shared Set ◽  
Self Interest ◽  
Tangible Benefit ◽  
Descriptive Framework

AbstractThis article proposes that there are three types of individual interest perception that explain adherence to the rule of law. The first level, “profit,” refers to tangible individual gain, whether in the form of economic enrichment or the accumulation of political power. The second layer of interest, “persuasion,” involves social norms and reputation. In this second level, individuals adhere to a rule not because of the threat of government sanction or reward, but rather because of intangible concerns for reputation and social status. Finally, the third layer of interest involves individuals forgoing tangible benefit for the sake of fidelity to a constitutional order or a shared set of beliefs. A potential advantage of the three-interest view is that it provides for an accessible descriptive framework that captures the broad nature of the rule of law, moving from the small bribe for a local official to the question of whether a constitution will constrain the powerful. The three-interest view also aligns well with modern developments in experimental and behavioural economics and suggests future lines of research into how individuals and groups navigate from self-interest toward cooperation and fidelity.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

Prosecutors and National Security

2021 ◽  
pp. 538-558
Author(s):  
Kent Roach
Keyword(s):  
Human Rights ◽  
National Security ◽  
Rule Of Law ◽  
Ethical Challenges ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
The Third ◽  
Relative Rarity ◽  
The Many ◽  
Operational Aspects

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

The Restatements and the Rule of Law

2020 ◽  
pp. 527-550
Author(s):  
Kristina Daugirdas
Keyword(s):  
Rule Of Law ◽  
Foreign Relations ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Rules ◽  
The Third ◽  
American Law ◽  
The Law ◽  
Compliance With The Law ◽  
Domestic Level

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the Restatements might promote the rule of law by promoting compliance with the law. Ultimately, the Third and Fourth Restatements have taken quite different approaches to promoting the rule of law. To some extent these different approaches are a consequence of changes in the legal landscape over the past three decades. They also reflect different choices that the reporters and the American Law Institute have made about how to carry out the project of restating foreign relations law.

Józef Nowacki as a Theoretician of Normativism in Poland

2020 ◽  
Vol 45 (2-3) ◽  
pp. 248-267
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
The Third ◽  
German Speaking ◽  
Post War ◽  
Legal Theorist ◽  
Historical Sketch

The present paper aims to present an outline of the views of the Polish legal theorist Józef Nowacki (1923–2005). The claim put forward is that Nowacki was the chief representative of Hans Kelsen’s normativism in Polish legal theory. The paper begins with a short historical sketch presenting the reception of Hans Kelsen’s views in Polish jurisprudence, noting that in the post-war period the communist authorities believed that normativism was at odds with the then prevailing system of actually existing socialism. Drawing inspiration from German-speaking authors, Nowacki rejected the ideology prevailing in Poland at that time and became a staunch advocate of the normativist stance, in particular with regard to the theory of the legal system. The second part of the paper discusses Nowacki’s views regarding the concept of the rule of law, and the third and last part presents Nowacki’s critique of the case-law of the Polish Constitutional Court.

Socrates and Democracy

2001 ◽  
Vol 18 (1-2) ◽  
pp. 91-105
Author(s):  
Shigeru Yonezawa
Keyword(s):  
Rule Of Law ◽  
Common Source ◽  
Fourth Section ◽  
The Rule Of Law ◽  
The Third ◽  
Political Views

The aim of this paper is to reveal Socrates as a thorough democrat. In the first section, I will disprove the credibility of Xenophon’s Memorabilia, a common source for scholars who view Socrates as an antidemocratic thinker. I will then argue, in the second section, that the views of a few scholars who portray Socrates as a prodemocratic thinker represent a far-from-satisfactory depiction of his political views. In the third section, I will then demonstrate that Socrates’ criticism of democracy is not of democracy itself nor of Athenian laws, but instead a criticism of a particular sort of democracy seen in the period of Athenian imperialism, and that it derives from his fundamental recognition of human ignorance. After pointing out Socrates’ special preference for the democratic laws of Athens, seen in the Crito, I will establish, in the fourth section, a preference in his philosophy showing him as a staunch democrat who upheld the concept of the rule of law.

Comparative Law and the Islamic (Middle Eastern) Legal Culture

2006 ◽  
pp. 608-640 ◽  
Author(s):  
Chibli Mallat
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Middle Eastern ◽  
Comparative Law ◽  
Legal Culture ◽  
Public And Private ◽  
The Rule Of Law ◽  
The Third ◽  
Nation States ◽  
Western Side

This article examines comparative law in Islamic legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined on the basis of religion and even sect within that religion.

scholarly journals Intellectual property, antitrust, and the rule of law: between private power and state power

2016 ◽  
Vol 17 (2) ◽  
Author(s):  
Ariel Katz
Keyword(s):  
Intellectual Property ◽  
Rule Of Law ◽  
Public Interest ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Order ◽  
Free Competition ◽  
Legal Power ◽  
Private Power ◽  
Ip Law

AbstractThis Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property (IP), antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily

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.

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