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The Rule of Law and the Importance of Procedure


Jeremy Waldron


New York University School of Law

October 6, 2010

NYU School of Law, Public Law Research Paper No. 10-73

Abstract:     
Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law.

Number of Pages in PDF File: 26

Keywords: legal argument, natural justice, predictability, procedural due process, procedure, rule of law

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Date posted: October 8, 2010 ; Last revised: November 4, 2010

Suggested Citation

Waldron, Jeremy, The Rule of Law and the Importance of Procedure (October 6, 2010). NYU School of Law, Public Law Research Paper No. 10-73. Available at SSRN: http://ssrn.com/abstract=1688491 or http://dx.doi.org/10.2139/ssrn.1688491

Contact Information

Jeremy Waldron (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
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