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

[RJLipkin at aol.com]

In a message dated 7/20/2005 4:59:25 PM Eastern Standard Time,  
msellers at ubalt.edu writes:

The rule  of law requires limiting governmental discretion through rules laid 
down in  advance, and following the rules laid down. 

        Of course, if this suggests  that the rule of law is somehow 
conceptually tied to positivism, it begs the  question of the proper analysis of "the 
rule of law" against coherentist,  natural law, and pragmatist theories of 
law. Just what counts as the "rules  laid down in advance" cannot, or at least 
should not without circularity, be  restricted to preclude novel readings of 
texts, history, structure, and so  forth. Indeed, Dworkin believes, as does, I 
think, Tribe and Justice  Kennedy, and certainly others, that the principle in 
Brown was already  "laid down" in the law prior to 1954, while Frankfurter 
said, if I recall  correctly, the law of equality changed on the day Brown was 
decided.  "Following the rules laid down," then, is not an easily interpretable 
notion  that can be used to evaluate various political arrangements or judicial 
 decisions or judicial nominees. Rather than an external standard, the rule 
of  law is relative to particular jurisprudential theories and certain 
political  philosophic conceptions of appropriate government and are pretty 
ineffective,  conceptually, as a bridge to those theories or conceptions.

 
Bobby
 
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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