Law, Liberty and the Rule of Law (In a Constitutional Democracy)
Imer B. Flores
Georgetown University Law Center; Instituto de Investigaciones Juridicas, Universidad Nacional Autonoma de Mexico (UNAM)
Law, Liberty, and the Rule of Law, pp. 77-101, Imer B. Flores & Kenneth E. Himma, eds., Springer Netherlands, 2013
Georgetown Public Law Research Paper No. 12-161
In the hunt for a better -- and more substantial -- awareness of the “law,” I intend to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, I pretend to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), i.e. to whatever pleases the majority, as part of the “positive liberty,” is contrary both to the “negative liberty” and to the “rule of law” itself.
Number of Pages in PDF File: 26
Keywords: law, liberty, rule of law, constitutional democracy, democratic principle, majority rule, judicialism, legalism
JEL Classification: K00, K30, K39Accepted Paper Series
Date posted: October 3, 2012 ; Last revised: June 11, 2013
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