rule of law (was RE: Iraqi and American democracy)

Mortimer Sellers msellers at ubalt.edu
Wed Jul 20 13:58:32 PDT 2005


I too would strongly recommend Tamanaha's book on the Rule of Law to those of you who have not read it yet.
 
He points out that the concept of "the rule of law", like "democracy", tends to be expanded to include everything good (in the eyes of the speaker) and particularly human rights, because "the rule of law" has such favorable connotations.
 
Here, too, I would say that the clear straightforward and simplest definition is the best.  The rule of law requires limiting governmental discretion through rules laid down in advance, and following the rules laid down.  This means that it would be possible to have an unjust rule of law regime, just as it would be possible to have an unjust democracy.  No state is just without the rule of law, but there must also be just laws.
 
I assume that judges who embraces the rule of law as a value also accept the fundamental justice of the legal system under which they work and believe that it constrains their discretion in interpreting the law.
 
          Tim Sellers

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Wednesday, July 20, 2005 4:34 PM
To: Malla Pollack; Mortimer Sellers; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: rule of law (was RE: Iraqi and American democracy)


I don't think that Marla is in the least "odd" in raising these questions.  A superb overview of the notion of "rule of law," incidentally is contained in a recent, short, and very readable book by Brian Tamanaha (Cambridge U. Press).  
 
sandy

  _____  

From: Malla Pollack [mailto:mpollack at uidaho.edu] 
Sent: Wednesday, July 20, 2005 3:33 PM
To: 'Mortimer Sellers'; Sanford Levinson; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: rule of law (was RE: Iraqi and American democracy)



Prof Sellers lists "the rule of law" as one central component of legitimate governments.  This prompts me to raise the meaning of that phrase in regards to the confirmation of justice nominee Roberts.  CNN keeps replaying Pres. Bush's assertion that the candidate should be confirmed because inter alia he believes in the rule of law.  Also repeated in the media is the claim that pro-choice advocates should not be alarmed because Roberts said that Roe was "settled law" during the hearings on his nomination to the D C Cir. 

            However, I have always thought that to a Sp Ct justice, the "rule of law" and "settled law" are much less constricting than to other legal and political actors.  I wonder if I am "odd" in believing that (i) Robert's comment re Roe does nothing to suggest he would not vote to over rule Roe if a Justice, (ii) his belief in the "rule of law"  tells  me little, if anything, about his views on the proper actions of Sup Ct Justices. 

 

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mortimer Sellers
Sent: Wednesday, July 20, 2005 1:19 PM
To: Sanford Levinson; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

 

Sandy is right about the value of clarity, which is why we should try to use the simplest and most straightforward definitions of important terms such as "democracy" in discussing constitutions.

 

Politicians will, of course, cling to any term that has positive connotations and try to use it for their own purposes.

 

Still, I think that President Bush is right to say that no government is legitimate unless it is democratic.  He should add (and sometimes has, I think) that just governments must also respect the rule of law, fundamental human rights and constitutional checks and balances.

 

Just because important values are abused and disrespected by politicians does not mean that they should not be praised and carefully articulated by law professors.

 

         Tim Sellers

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Wednesday, July 20, 2005 4:01 PM
To: Mortimer Sellers; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

I have no particular objection to Tim's stipulative definition, especially when it is accompanied by his point that "democracy-as-unrestricted-majority-rule" is in obvious tension with standard notions of "constitutionalism," including protection of "fundamental rights" against majoritarian abridgement.  The point is to be clear about the definition one is using, which one rarely finds in the speeches of, say, George W. Bush (or, to be fair, John Kerry or any other politician who loves to prate about the concept).

 

sandy

 


  _____  


From: Mortimer Sellers [mailto:msellers at ubalt.edu] 
Sent: Wednesday, July 20, 2005 2:58 PM
To: Sanford Levinson; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Cc: Mortimer Sellers
Subject: RE: Iraqi and American democracy

Sandy raises the question of what we mean by democracy and suggests that it may be an "essentially contested" concept.

 

Democracy does not strike me as a particularly difficult concept to grasp.  It means majority rule.  The problem arises from overvaluing democracy. Democracy is an important element in any just constitutional order, but not the only value.  Human rights, the rule of law and constitutional checks and balances (including the separation of powers) are also extremely important.  By using lazily "democracy" as a shorthand for this broader set of values we make it easier for governments to establish illiberal (and therefore unjust) democracies.  All legitimate governments are democracies.  Not all democracies are just.  Being a democracy is not enough, on its own, to legitimate the constitutional order in Iraq (or the United States).

 

             Tim Sellers

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Sanford Levinson
Sent: Wednesday, July 20, 2005 12:20 AM
To: Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

Marci writes:

.   I suppose the U.S. is going to have to decide what it means by a democratic Iraq.  Do we mean a democracy patterned after our values, or one that they choose?    

 

This, of course, raises the deepest question of what we mean by democracy.  I.e., is it enough that a newly empowered majority of Shiite Moslems will use their voting power to "put women in their place," or does "democracy" require some (but how much?) linkage to "liberal" values such as genderk, religious, or ethnic equality?  Do we expect our own political leaders (including our undemocratrically selected president (in 2000), at least if majority rule is a sine qua non of democracy) to have a coherent theory of "democracy," or is it sufficient for them to babble about "democracy" or "freedom" without recognizing that these are, to put it mildly, "essentially contested concepts"?  

 

sandy

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