tamanaha notes

rule of law -

i. intro

why write about it?

1. notion that it is the most powerful and repeated ideal in the contemporary
global discourse
- everyone is for the rule of law.

a major source of legitimation for governments in the modern

world. A government that abides by the rule of law is seen
as good and worthy of respect.

2.it is elusive. an essentially contested concept

its elusiveness is what makes it universal - everyone is for the good but
everyone has a different concept of what good is.

ii. definition of rule of law

-it means that gov officials and citizens are bound by and abide by the law.
- a society that lives under the rule of law

- this definition albeit the most basic one, requires that there
-must be a SYSTEM OF LAWS - which involves rules set forth in advance
and stated in general terms.
- must be generally known and understood.
- requirements imposed by the law must not be impossible to meet.
- must be applied equally to everyone acc. to their terms
- must have mechanisms that enforce the legal rules when breached

this is the thin definition of the rule of law

iii. why definition does not include democracy and human rights

-united nations incorporate human rights and democracy :

principle of governance consisted of international human rights
norma and standards and requires participation in decision-making.

1. the definition requires only that gov. officials and citizens be bound by and
abide by the law. it says nothing about how those laws are made and the standards
that those laws must satisfy

rule of law - ideal that relates to legality

- it invites confusion
- each must be understood and argued for on its own terms
- they are separate elements that focus on different aspects

2. results to defining the rule of law in terms of institutions that match liberal
democracies
- suggests that only the liberal democracies have the rule of law
- thinking that if a society wishes to acquire the rule of law, it must resemble
a liberal democracy.
- unjustifiable

-objectionable because it is contrary to the tenets of liberalism

-have a claim that only liberal democracies are legitimate

JOHN RAWLS - can be legitimate even when they lack democratic institutions
- when they are well-ordered and people enjoy minimum rights to sustenance, security,
property, formal eqality, and freedom from forced labor

system of law - must be guided by a common good conception of justice

- communitarian-oriented gov. and soc.

3. a society that possesses the rule of law is not necessarily a good society
worthy of praise.m
us - under rule of law but people still suffer from poverty and poor public health

a society may comply with the rule of law and still be lacking in some aspects

IV. 3 elements of the rule of law

a. government limited by law

the sovereign, state, and its officials are limited by the law
long before, the struggle to restrain the sovereign's power existed

justinian code - what has pleased the prince has the force of law

2 reasons why the government and sovereign must operate within a

limitng framework of law

1. officials must abide by the positive laws currently in force.

2. even when gov officials wish to change the law, they are not entirely free to
change it in any way they desire.

middle ages - dictates of natural or divine law or customary laws

contemporary - human rights/ constitutional rights or limitations

leviathan - 'he that is bound to himself only is not bound'

premodern- monarchs were restrained in 3 ways

1. monarchs explicitly accepted that the law was binding on his conduct
eg. swear an oath or affirm their commitment to the divine, positive, customary law

one of the chief duties of the monarch was to uphold the law of the community
entailed that they must conform to the law

MAGNA CARTA of king john

-they are obliged to abide by law
2. monarchs and gov officials operated within a framework of laws that applied to everyone
eg. germanic customary law, king operated within divine and natural law restraints
-they are bound by the law

3. routine conduct - mundane day to day conformity = operated on a daily basis\

- they carried on routine affairs

=SOVEREIGN, NOBLES, GOV OFFICIALS MUST OPERATE WITHIN LEGAL RESTRAINTS

In reality frequently - monarchs and gov off did not abide by the law, the law was
inconvenience for their own
self-interests - law serves as weapons in their hands

-legal restrictions did matter even when not fully honored - plastik na politicians
to pursuade the public for his own interest

back then: no legal remedies only political consequences such as:

1. excommunication by the church
2. threat of revolt
3. threat of being beheaded

contemporary world: separation of powers, institutionalised differentiation of sovereign

and government, separate institutions within the government
eg. office of atty. general under executive but separate
pres. nixon - investigated, fired, backlash, resigned

jusges have the duty to apply the law

'gov off could be brought to court by private citizens

requirement: judiciary must posses independence from the rest of government

apparatus hence the differentiation of institutions

b. formal legality
- what rules are and how they operate
laws :
- must be set forth in advance
- general
- publicly stated
- applied to everyone according to their terms
- cannot demand the impossible

predictability through law - foresee how the authority will use its powers and
plan affairs on the basis of this knowledge

WITHIN LIBERALISM:
- enhances liberty of action or individual autonomy - permissible range of
free action

- no double jeopardy = citizens are free to do what they like as long as no rules
are violated
WITHIN CAPITALISM:
formal legality = economic development

help facilitate market transactions

predictailiy allows merchants to calculate the costs of transactions
-encourages more transactions because laws of contracts give assurances that
a sanction would follow if contract is breached.
- encourages productive efforts, law gives security
- enhances predictability, certainty, and security

3 limitations of formal legality:

1. all rules suffer from over-inclusiveness and under
-situations arise that do not conform to the purposes of the rule
over inclusive- produce results that are not consistent with the aim of the rule
under- rules will fail to extend to situations that would
advance the purpose of the rule
eg. driver's license for 16
amend the rule so it will not be under or over
but amendment will destroy the rule based nature of law
- calls for individualized judgment
deminishes the predictability of law

answer: judge consider fairness but not too often

= would increase level of uncertainty

2. it is compatible with a regime of laws with inequitable or evil content

when laws are unjust, formal legality would make it unjuster because it then needs
to be executed/ carried out.
- may strengthen authoritarian regime principles

3. there are many circumstances where formal legality is not appropriate/

socially beneficial
eg. administrative agencies that exist to advance social policies, education, envi

expansion of this would be antithetical to the rule of law

much of government decisions are not strictly rule-governed

not suited also: small scale communitarian communities

-strict rules would be harmful and unsettling

peace might be better achieved through political efforts

come to a solution that everyone can live with = compromise

commercial transactions make compromise because courts are delaying, expensive and
unreliable
maintain good rep

formal legality - reduce uncertainty - not strictly bec. that would result negatively
c. the rule of law not man

to live under the rule of law is not to be subject to the unpredictable vagaries of others
- shielded from bias, passion, prejudice, error, ignorance, whim

- grounded upon fear and distruct of others

'passion perverts the minds of rulers even when they are the best of men'
operation of law is connected with human participation

solution:
judiciary as guardians of the law
must be:
unbiased, neutral, free of passion, loyal to law alone
insure that gov officials are held to the law
conditions:
1. legal tradition
2. rich body of legal knowledge
3. robust legal profession that advocates value of legality

- must enjoy independence, protected from interference :

1. selection of judges based on legal qualifications
2. long term appointment of judges
3. protectio against removal
4. reasonable renumeration

improper to interfere with th decisions of the judiciary even when it is upopular

eg. pres roosevelt

It is the particular duty of the legal profession to

advocate and defend the independence of the judiciary when
it is threatened.

judiciary - relies on respect

judge speaks the law = law is what the judge says

judicialisation of politics = ekis

judges must be selected with utmost care

- commitment to fidelity to the law,
- honesty, integrity,
- ability to remain unbiased
- reasonableness
- capacity for good wisdom

judge must possess judgment, wisdom, character

v. overlapping of the 3 themes

that hopes to meet the core demand of the rule of law must insure
that when the government exercises coercion against citizens, it does so in accordance
with standing laws and it must insure that the government is answerable in court for
its action.

vi. essential component

A widely shared cultural belief that the law should rule
is the essential element of the rule of law.

- people must identify with the law and perceive it to be worthy of

rulin
- must believe that laws reflect their values, serve their interests
general trust in law must be earned for each generation

vii. closing
no one manifestation of the rule of law
what matters is the role the law plays within the broader government and society