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

Thu Jul 21 10:16:54 PDT 2005

I agree but would like to clarify both terminology and problems.
1) saying some governing institution is legitimate because it was arrived at
by previously ok'd procedure is "origin" legitimacy.  Problem is that the
origin of the procedures may not have included input or support from all the
individuals current being controlled by the institution. This is the "dead
hand" problem with originalism approach to the US constn
2) saying something is legitimate because it does the job of governing well
involves some accepted definition of both the proper job and the measuring
method.  You can look at the content of the rules enforced or the method of
making decisions.
3) to get around problem of reasonable disagreement about what content gives
legitimacy, many turn to the legitimacy of the decision procedures -- but
some content (like free speech) is generally agreed to be necessary for
procedure to be legitimate.
4) so-- no metaphysical out, just an on going project of self improvement

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: Mortimer Sellers [mailto:msellers at ubalt.edu] 
Sent: Thursday, July 21, 2005 9:45 AM
To: Malla Pollack; Earl Maltz
Cc: conlawprof at lists.ucla.edu; Mortimer Sellers
Subject: RE: rule of law (was RE: Iraqi and American democracy)

"Legitimate" is a very useful word for people interested in constitutions,
because it gets to the heart of what constitutions attempt to achieve.

In its strictest sense "legitimacy" applies to a pre-existing set of
standards, for example, something can be legitimate or not under the
existing U.S. Constitution, or under international law.  If no standard is
specified, then the assumed standard is the general morality or purpose of
the enterprise.  Thus most people who speak (for example) of whether the
Iraqi government is "legitimate" (or not) mean to discuss whether it is
justified (or not) in assuming governmental authority.  Others may mean to
debate whether or not the government is legitimate in terms of international
law, or in terms of the previous Iraqi constitution.

As Malla rightly points out, there are several available theories of what
makes a government "legitimate", in the sense that it deserves the support
and obedience of its subjects.  All constitutions and laws claim to be
"legitimate" in this sense.  I would suggest that the ultimate test of the
(moral) legitimacy of constitutions consists above all in their
effectiveness in finding and serving the common good of those subject to
their rule.

        Tim Sellers

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Malla Pollack
Sent: Wednesday, July 20, 2005 7:17 PM
To: 'Earl Maltz'
Cc: conlawprof at lists.ucla.edu
Subject: RE: rule of law (was RE: Iraqi and American democracy)

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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