rule of law (was RE: Iraqi and American democracy)
Bob Sheridan
bobsheridan at earthlink.net
Wed Jul 20 20:39:34 PDT 2005
This is a terrific article; 82 pages of serious and good humored
analysis as to why the 'social contract' and other metaphors and schools
of interpretation are out the window, and the /promise /of the
Constitution as to each citizen is in. See: 'Sliders.'
Scrap Ver. 1787-1791 as illegitimate. Slavery and women as property,
'n' all.
Ver. 2005 is the latest, and the one worth struggling for.
I'd post the URL, but, other than saying that I hit a link to Stanford
on the abstract page, I can't say how I got there.
rs
Malla Pollack wrote:
>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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>
>
>_______________________________________________
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>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
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>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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