Global Constitutionalism and the Rule of Law
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Description
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 not only a function of different legal traditions emphasizing different elements as central to the ideal, reflecting particular institutional and ideological histories. 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 requirements, or whether it is a thicker ideal, including further commitments to democracy and human rights. These disagreements, I argue, are ultimately about the nature and moral point of the rule of law as an ideal. In order to gain a better understanding of what is distinctive about the rule of law as an ideal in the constitutionalist tradition, what is at stake in these disagreements and how best to resolve them, the following first engages in a ground-clearing exercise and negatively distinguishes and contrasts the rule of law to three related but distinct ideas: the rule by law, the rule of men (or persons), and the rule of reason. Then the chapter spells out in more detail a positive conception of the rule of law tied to global constitutionalism, again proceeding in three parts. First, it reaps the fruits from the ground-clearing exercise and describes the ideal of the rule of law in general conceptual terms clarifying its moral point: The rule of law is an ideal that is focused on the conditions that law must fulfill in order to actually have the authority it claims to have. Second, it lays out what that means in more concrete terms in terms of domestic constitutional requirements, before describing some of its implications for critically assessing and progressively developing the global legal order.
Source Publication
Handbook on Global Constitutionalism
Source Editors/Authors
Anthony F. Lang, Jr., Antje Wiener
Publication Date
2017
Edition
1
Recommended Citation
Kumm, Mattias, "Global Constitutionalism and the Rule of Law" (2017). Faculty Chapters. 1057.
https://gretchen.law.nyu.edu/fac-chapt/1057
