The Rule of Law, Legitimate Authority and Constitutionalism
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The Rule of Law is a political ideal whose widespread political endorsement across the globe is complemented by a great deal of disagreement about its content. That disagreement is in part a function of different legal traditions emphasising different elements as central to the ideal, reflecting particular institutional and ideological histories.1 Scholars also debate more generally whether the rule of law is a thin ideal, focused primarily on formal features of the law, perhaps complemented by certain minimal institutional and procedural requirements, or whether it is a thicker ideal, including further commitments to democracy and human rights. One of the reasons that these debates tend to be not only interminable but also intellectually unproductive is that it is not particularly clear what this is a debate about or what the relative criteria are for resolving it. The temptation is to understand it as a debate about mere semantics. There are different meanings one might give to the rule of law and there appears to be no right answer to the question of which is the correct one; all that matters is that one should be clear about what one is talking about. However, taking such an approach is misguided. There is something at stake in these debates, and the issues raised by the question are jurisprudentially interesting and politically important, or so I will argue. The following consists of three parts. In the first part (section II), I will suggest that the distinctive point of the political ideal of the rule of law is that it is focused on the conditions that must pertain for law to actually have the authority it claims to have. Debates about what elements are necessary for the ideal of the rule of law to be fulfilled should be understood as debates about the conditions that must be fulfilled for law to actually have the authority it claims to have. To start developing the contours of a plausible conception of the rule of law, I will then (in section III) distinguish the idea of the rule of law from three related ideas: the rule by law, the rule of men (or persons) and the rule of reason. Finally, in section IV I will provide further substance to the ideal of the rule of law by discussing its requirements as they are best understood in the modern constitutionalist tradition. We are the heirs of a revolutionary legal tradition that ties the idea of legitimate authority to constitutionalist ideas and institutions. The only plausible conception of the rule of law in this tradition is a moderately demanding one, requiring less than justice but more than merely respect for the formal virtues of legality: it requires the institutionalisation of democracy, including free and fair competitive elections and respect for human rights, as determined by impartial and independent judicial institutions.
Source Publication
Legal Positivism, Institutionalism and Globalisation
Source Editors/Authors
Christoph Bezemek, Michael Potacs, Alexander Somek
Publication Date
2018
Recommended Citation
Kumm, Mattias, "The Rule of Law, Legitimate Authority and Constitutionalism" (2018). Faculty Chapters. 1054.
https://gretchen.law.nyu.edu/fac-chapt/1054
