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"Loughlin, Martin"
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The Rule of Law: A Slogan in Search of a Concept
Regularly invoked but rarely defined, ‘the rule of law’ has over the last few decades been converted from a legal term of art into one of the most ambiguous slogans of contemporary public policy. Political scientists claim it as a crucial test of a regime’s legitimacy. Economists maintain that it provides an essential foundation of a flourishing market economy. Philosophers suggest it captures the essence of the state as a moral association. Historians acknowledge that, even if they might distrust such an abstract notion, the imposition of effective inhibitions on power is an ‘unqualified human good’. And lawyers, of course, have treated it as the foundation of their discipline ever since the mid-thirteenth century when Bracton asserted that ‘there is no rex where will rules rather than lex’. Those who extend its usage beyond the confines of professional legal discourse commonly give it a positive valence. But the rule of law also has its detractors. These critics assert that it promotes purely formal, individualistic values at the expense of substantive justice, or that it is a smokescreen preventing us from seeing the impact of recent global developments that signal the rule of lawyers. Some anthropologists even denounce it as an imperial ideology that legitimates European conquest and the plunder of the rest of the world. But given the fact that almost every state in the world now claims to act in compliance with the rule of law, these critics seem to have done little to dent its appeal. Yet, the sheer range of views and perspectives that now exist about the meaning, purpose, and value of the rule of law considerably complicates any inquiry into its current standing. In this paper, I will try to bring some clarity to the issue by providing a sketch of the main varieties of ways in which the term is being invoked. The paper comprises five sections, which each address a specific aspect of the term’s usage: (1) its coinage in English law, (2) the adoption of a superficially similar terminology in the German concept of the Rechtsstaat, (3) the jurisprudential innovations that complicate its meaning, and finally its most recent invocation (4) first in development work and (5) secondly in constitutional rejuvenation.
Journal Article
The Political Jurisprudence of Paul W. Kahn
This article presents an account of the work of the American constitutional law scholar, Paul W. Kahn, by situating it within a European tradition of political jurisprudence. After introducing certain basic features of this school of political jurisprudence, it proceeds to examine and evaluate Kahn’s work relating to the political, the state, sovereignty, collective identity and constitution within the framework of that distinctive worldview.
Journal Article
The Cambridge companion to the rule of law
'The Cambridge Companion to the Rule of Law' introduces students, scholars, and practitioners to the theory and history of the rule of law, one of the most frequently invoked - and least understood - ideas of legal and political thought and policy practice.
Book
Foundations of public law
This book offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Public law is conceived broadly as a type of law that comes into existence as a consequence of the secularization, rationalization, and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering. Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late 16th to the early 19th centuries — extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke, and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith, and Hegel — it presents an account of public law as a special type of political reason. The remaining three parts unpack the core elements of this concept: state, constitution, and government. By explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the 16th–19th centuries, public law is revealed to be a subject of considerable ambiguity, complexity, and resilience.
eBook
The Shibboleth of Sovereignty
Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a particular political conviction, that the British state depends on a central authority equipped with an unlimited power. These two facets of sovereignty are now so deeply intertwined in legal consciousness that they cannot easily be unravelled and this becomes the main barrier to thinking constructively about Britain's constitutional arrangements. This article substantiates these claims by explaining how the doctrine came into being, demonstrating how it is tied to a deeper political conviction, showing that its political underpinnings have been considerably weakened over the last century, and indicating how its re-working is the precondition of constitutional renewal.
Journal Article
The Constitutional Imagination
The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a 'world-making' capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.
Journal Article
Constitutional pluralism: An oxymoron?
This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.
Journal Article
The Functionalist Style in Public Law
In the early decades of the twentieth century, a division emerged within liberal philosophy between what might be called 'classical liberalism' and 'new liberalism.' Classical liberalism was individualistic in orientation, restricted state action to the prevention of harm, and argued that the best method of improving human well-being was to promote freedom of trade, freedom of contract, and individual responsibility. Although its influence on nineteenth-century British thought was immense, by the end of the century its authority was diminishing, and this type of liberal thought was being eclipsed by what is commonly called 'new liberalism.' New liberalism, which might otherwise be referred to as progressivism or social democracy, presented itself as a more amorphous or disparate phenomenon. At its core, however, new liberalism stood in opposition to the social atomism of classical liberalism, claiming that humans were intrinsically social creatures and that 'real' freedom could not be realized without collective action on a significant scale. These two aspects of a broadly conceived liberal philosophy profoundly disagreed on the nature of the relationship between the individual and the state.
Journal Article