Law, Liberty and the Rule of Law (In a Constitutional Democracy)
Law, Liberty, and the Rule of Law, pp. 77-101, Imer B. Flores & Kenneth E. Himma, eds., Springer Netherlands, 2013
26 Pages Posted: 3 Oct 2012 Last revised: 11 Jun 2013
Date Written: 2013
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.
Keywords: law, liberty, rule of law, constitutional democracy, democratic principle, majority rule, judicialism, legalism
JEL Classification: K00, K30, K39
Suggested Citation: Suggested Citation