The Rule of Law as Institutional Ideal

The Rule of Law as Institutional Ideal This article aims at offering an innovative interpretation of the potentialities of the “rule of law” for the twenty-first century. It goes beyond current uses and the dispute between formal and substantive conceptions by exploring the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion. It displays a special objective that the law is asked to achieve, on a legal plane, largely independently of political instrumentalism. The normative meaning is elaborated on and construed around notions of institutional equilibrium, non-domination and “duality” of law. The ideal of the rule of law can be considered as, first, consistent with its historical constants, instead of being forged on purely abstract basis; second, extendable to contemporary institutional transformations, beyond the State; and, third, conceptually sustainable on a legal theoretical plane, where it is located without falling prey to the debate about the morality of valid law. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Comparative Sociology Brill

The Rule of Law as Institutional Ideal

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Publisher
Brill
Copyright
© Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1569-1322
eISSN
1569-1330
D.O.I.
10.1163/156913210X12535202814315
Publisher site
See Article on Publisher Site

Abstract

This article aims at offering an innovative interpretation of the potentialities of the “rule of law” for the twenty-first century. It goes beyond current uses and the dispute between formal and substantive conceptions by exploring the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion. It displays a special objective that the law is asked to achieve, on a legal plane, largely independently of political instrumentalism. The normative meaning is elaborated on and construed around notions of institutional equilibrium, non-domination and “duality” of law. The ideal of the rule of law can be considered as, first, consistent with its historical constants, instead of being forged on purely abstract basis; second, extendable to contemporary institutional transformations, beyond the State; and, third, conceptually sustainable on a legal theoretical plane, where it is located without falling prey to the debate about the morality of valid law.

Journal

Comparative SociologyBrill

Published: Jan 1, 2010

Keywords: rule of law; society and institutions; legal and political theory; justice; legal history

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