The Rule of Law and the Separation of Powers

The rule of law is frequently invoked in political debate, yet rarely defined with any precision. Some employ it as a synonym for democracy, others for the subordination of the legislature to a written constitution and its judicial guardians. It has been seen as obedience to the duly-recognised government, a form of governing through formal and general rule-like laws and the rule of principle. Given this diversity of view, it is perhaps unsurprising that certain scholars have regarded the concept as no more than a self-congratulatory rhetorical device. This collection of eighteen key essays from jurists, political theorists and public law political scientists, aims to explore the role law plays in the political system. The introduction evaluates their arguments. The first eleven essays identify the standard features associated with the rule of law. These are held to derive less from any characteristics of law per se than from a style of legislating and judging that gives equal consideration to all citizens. The next seven essays then explore how different ways of separating and dispersing power contribute to this democratic style of rule by forcing politicians and judges alike to treat people as equals and regard none as above the law.

Contents: Introduction: the rule of law as the rule of persons. Defining the Rule of Law: On the moral status of the rule of law, Matthew H. Kramer; Reconsidering the rule of law, Margaret Jane Radin; The rule of law and its virtue, Joseph Raz; Formal and substantive conceptions of the rule of law: an analytical framework, Paul Craig; Is the rule of law an essentially contested concept (in Florida)?, Jeremy Waldron. The Rule of Law and Judicial Discretion: Freedom and the rule of law, F.A. Hayek; Judicial discretion, Ronald Dworkin; The 3rd theory of law, J.L. Mackie; Incompletely theorised agreements, Cass R. Sunstein; Stability and change in judicial decision-making: incrementalism or stare decisis?, M. Shapiro. The Separation of Powers: The political form of the constitution: the separation of powers, rights and representative democracy, Richard Bellamy; Separation of powers and constitutional government, Eric M. Barendt; On speaking softly and carrying big sticks: neglected dimensions of a republican separation of powers, John Braithwaite; A revisionist view of the separation of powers, Geoffrey Brennan and Alan Hamlin; Institutionalising the public interest: the defense of deadlock and beyond, Robert E. Goodin. Parliamentarianism and Federalism: The new separation of powers, Bruce Ackerman; Constitutionalism and the many faces of federalism, Koen Lenaerts; Name index.