The Rule of Law: An Abuser's Guide
University of New South Wales Law Research Paper No. 2007-4
ABUSE: THE DARK SIDE OF FUNDAMENTAL RIGHTS, Andras Sajo, ed., Eleven International Publishing Company, 2006
29 Pages Posted: 5 Jan 2007
Abstract
I have been invited to write about abuse of the rule of law. This is not an altogether comfortable assignment, since I have long believed that the rule of law is a very good thing. Without it, at least in conditions of modernity, life is immeasurably worse than where it is secure. But then families are good things too, yet we know bad things can happen in families. So perhaps the rule of law also has dark sides. This chapter explores that possibility. It begins by sketching an approach to the rule of law that I have elaborated elsewhere and that differs from some. In particular, it does not offer, as lawyers typically do, a general definition that picks out characteristics of laws and legal institutions supposedly necessary, if not sufficient, for the rule of law to exist. Rather, it begins with teleology and ends with sociology. I then enumerate and discuss several ways in which the rule of law might be associated with abuse. I speak of verbal abuse, harms to and through the rule of law, and misuse. Though abuses are not hard to find, I do not think that every apparent abuse of the rule of law is rightly so called. In the course of discussion, I have something to say about what the rule of law requires in order to be used well, as well as what constitutes abuse of it. I also seek to dispel some misconceptions about what it is, what it depends upon, and what violates it. In other terms, and in terms of my invitation, not all abuse of the rule of law shows its dark side. Other things are going on. But there are dark sides also, and I will discuss some of them.
Keywords: rule of law
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