Joseph Raz and Lon Fuller went even further in the realm of freedom. Raz (1979 [1977]:221) proposed that ensuring an atmosphere conducive to freedom was a matter of dignity: „Respect for human dignity means treating people as persons capable of planning and planning for their future” (Raz 1979 [1977]:221). Also in Lon Fuller`s theory, the principles of the inner morality of the law were valued for the way they respected dignity: Pettit P (1997) Republicanism: a theory of freedom and government. Clarendon Press, Oxford Pincione G, Tesón FR (2006) Rational choice and democratic deliberation: a theory of discourse failure. Cambridge University Press, New York Aristotle`s work on the rule of law is still influential. Although he framed the question of whether it was better to be governed by the best man or by the best laws, he approached this question realistically, noting that it depended not only on the type of law considered, but also on the type of regime that enacted and administered the law in question (Politics 1282b) Mack E (2000) In Defense of the Legal Theory of Rights. J Ethics 4(1/2):71–98 Although the principles of the rule of law are purely formal in their application, we do not appreciate them solely for formalistic reasons. More fundamentally, people value the rule of law because it takes away some of the advantage of the power necessarily exercised over them in a political community. In many ways, the rule of law means that power is less arbitrary, more predictable, more impersonal, less coercive, even less coercive. He notes what Fuller (1964: 39-40) called a bond of reciprocity—a reciprocity of coercion—between leader and ruled, and in this sense he mitigates the asymmetry that political power otherwise brings. In modern debate we also hear echoes of the teaching of L`Esprit des lois (1748: Bk. 26, chap.
15, p. 510) that „things which depend on the principles of civil law must not be governed by the principles of political law.” „Civil law” – Montesquieu`s word for what we call private law – is, as he said, „the palladium of property,” and it should be allowed to operate according to its own logic, not weighed down by the principles of public or political regulation. A failure of the rule of law in this respect is likely to lead to the impoverishment of an economy as expectations collapse and owners` incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, chap. 14, p. 61). In the West, the ancient Greeks initially regarded the best form of government as the rule of the best men. [12] Plato advocated a benevolent monarchy ruled by an idealized philosopher king above the law. [12] Plato, however, hoped that the best men would be good at abiding by established laws, stating: „When the law is subject to another authority and has no authority of its own, the collapse of the state is not far away, in my opinion; But if the law is the master of government and the government is its slave, then the situation is full of promise and people enjoy all the blessings that the gods pour out on a state. [13] More than Plato tried to do, Aristotle categorically refused to let the highest officials exercise power beyond the custody and meaning of laws. [12] In other words, Aristotle advocated the rule of law: Rawls J (1999) A theory of justice, rev edn. Harvard University Press, Cambridge, MA Unfortunately, after making this demand, Locke complicated matters by adding a substantial principle of respect for private property: „The supreme power cannot deprive any man of any part of his property without his own consent,” and any law that purports to do so is invalid (Locke 1689: § 138).
But there is also a difficulty. Although Locke gave us his own theory of pre-political property rights—the so-called „labor theory” in Chapter Five of the Second Treaty—it was itself far from uncontroversial. The people of our time, as in his, do not agree on the competing demands for work and occupation; they disagree on the context of co-ownership; And they disagree on what someone can appropriate and how sensitive their appropriation should be to the needs of others. We disagree on all of this – in a way that has become clear, for example, in Robert Nozick`s (1974) debates on Locke`s theory. And Locke and his contemporaries disagreed; Locke knew and pointed out in several places that he knew how controversial all this was (Tully 1980: 64 ff; for Locke`s knowledge of controversies, see Waldron 1999: 74-5). Habermas J (1996) Zwischen Fakten und Normen: Beiträge zu einer Diskurstheorie von Recht und Demokratie (Trans: Rehg W). MIT Press, Cambridge, MA Most legal theorists believe that the rule of law has purely formal characteristics. For example, these theorists argue that the law requires generality (general rules that apply to categories of persons and behaviours as opposed to individuals), publicity (no secret laws), prospective application (few or no retroactive laws), consistency (no conflicting laws),[38] equality (equally applied throughout society), and security (certainty of application to a particular situation). But formalists say there are no requirements regarding the content of the law. Others, including some legal theorists, believe that the rule of law necessarily implies the protection of individual rights.
In legal theory, these two approaches to the rule of law are considered the two fundamental alternatives or called formal and substantive approaches. However, there are other points of view. Some believe that democracy is part of the rule of law. [39] The law is therefore a powerful potential tool for COIN, although I pause before even calling the law a „tool”. I will explain this in a future article when I focus on the different meanings of the term „lawfare”. In my next post, I will discuss the practical challenges of applying this theory in Afghanistan. Some lawyers who maintain the contrast between the rule of law and the rule of law have a more ambitious agenda. They take seriously the age-old idea that we can be governed by laws and not by people. One wonders: how is this going to be done? After all, all laws are made by people and interpreted by people and enforced by people. He can no longer govern us alone, without human help, than a cannon can dominate us, without a hardware store to launch it, and a gunner to charge and fire it. Legal scholars who compare the rule of law to the rule of law believe they can do so by focusing on laws whose human origins are somehow diffuse or immemorial. We`re not necessarily talking about natural law here, but perhaps something like the common law or the common law – the law that isn`t so obviously a descendant product of powerful human legislators (Epstein 2011).
The common law grows and develops on its own and does not need to be conceived as a means by which some identifiable persons rule over others. Undoubtedly, there is a lot of mythology in it. A more realistic view of the common law identifies it with the conscious and arbitrary rule of an entity that Bentham (1792) called „Judge & Co.” But it remains true that the human element in this type of system is diffuse, and at any time the law that arises is the result of the work of many people and not the deliberate product of a dominant majority that governs us from the legislative center of a state. Olson M (1965) The Logic of Collective Action: Public Goods and Group Theory. Harvard University Press, Cambridge, MA In the same vein, the rule of law is valuable and important because it creates an environment conducive to freedom. According to Hayek`s rule of law theory – especially in the early stages of his work (see section 3.5 above) – we value requirements such as generality and impersonality because they free us from dependence on the will of others: (1) The first element is the ability of legal rules, norms, or principles to guide people in the conduct of their affairs. People must be able to understand and respect the law. (2) The second element of the rule of law is efficiency. The law was supposed to guide people, at least for the most part. In the words of Joseph Raz, „people should be governed by the law and obey it.” (3) The third element is stability.