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

Malla Pollack mpollack at uidaho.edu
Wed Jul 20 16:17:11 PDT 2005


Ok.  Like the other terms the list has recently discussed, legitimacy has
multiple meanings.  IMHO "legitimacy" is a claim that one OUGHT to obey for
non-pragmatic reasons.  Using it this way, I see in the literature two
different types of legitimacy claims re governments:  (i) origin legitimacy:
such as democratic procedure for statutes, or original contract (for US
Constn); (ii) content legitimacy (as per Rawls)- the "goodness" of the
content (which can be looked at through a substantive (content) approach, or
by looking at the procedures required to make decisions, or some combination
of both.
	I have recently finished an article discussing the non-legitimacy of
the US government and how to at least dampen its illegitimacy, available at
http://ssrn.com/abstract=724521


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: Earl Maltz [mailto:emaltz at camden.rutgers.edu] 
Sent: Wednesday, July 20, 2005 4:05 PM
To: Malla Pollack
Cc: conlawprof at lists.ucla.edu
Subject: RE: rule of law (was RE: Iraqi and American democracy)

As long s we are talking about the meaning of terms like "activist" and 
"democratic,"  how about the term "legitimate," which is used all the time 
and has, as far as I can tell NO apparent, independent meaning.

At 03:10 PM 7/20/2005 -0700, you wrote:
>
>         Much of this thread assumes that the US is fairly legitimate.
>
>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: Miguel Schor [mailto:mschor at suffolk.edu]
>Sent: Wednesday, July 20, 2005 2:59 PM
>To: msellers at ubalt.edu
>Cc: SLevinson at law.utexas.edu; mpollack at uidaho.edu; Hamilton02 at aol.com;
>conlawprof at lists.ucla.edu
>Subject: Re: rule of law (was RE: Iraqi and American democracy)
>
>If the rule of law means limiting governmental discretion through rules
laid
>down in advance and following the rules laid down, then isn't our entire
>system of adjudication problematic?  What makes the rule of law invaluable
>in facilitating political legitimacy is that courts have considerable
leeway
>in following the rules laid down.  This is the reason why the Bush
>administration is so worried that those arrested in the war on terror might
>actually be tried in civilian courts.  You have to love a defense lawyer
>such as Padilla's who can beg the court to please make the government
indict
>his client or free him.  Miguel
>
>==============Original message text===============
>On Wed, 20 Jul 2005 4:58:32 pm EDT "Mortimer Sellers" wrote:
>
>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
>
>===========End of original message text===========
>
>
>
>Miguel Schor
>Associate Professor of Law
>Suffolk University Law School
>
>
>
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