The Limits of Process
GETTING TO THE RULE OF LAW: NOMOS L, pp. 32-51, James E. Fleming, ed., New York University Press, 2011
21 Pages Posted: 30 Jan 2012
Date Written: 2011
This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has usefully identified and distinguished — formal, procedural, and substantive — need to move beyond identifying the Rule of Law as a means to counter the pernicious abuse of power by a too-fierce state besotted by its own political will, and acknowledge the ways in which the law expresses the will of the state to protect weaker parties harmed not by the state but by powerful private entities.
Keywords: rule of law, justice, legal ethics
JEL Classification: K00, K10, K30
Suggested Citation: Suggested Citation