The rule of law concept - Доклад

Report On Science of Law Topic: The rule of law concept Introduction The Rule of Law is a historic ideal, and appeals to the Rule of Law remain rhetorically powerful. Yett hep recisem eaning of the Rule of Law is perhaps less clear than ever before. Many invocations are entirely con-clusory, and some appear mutually inconsistent. To clarifyt he values that are invokedb y diversea nd sometimesc onflict-ing appeals to the Rule of Law, ProfessorF allon developsfo ur ideal types which reflect the unstated assumptions that underlie familiar Rule-of-Law-based arguments. But the ideal types which tend to identify the satisfaction of particularc riteriaa s eithern ecessaryo r sufficientf or the Rule of Law, are also incomplete.M oret han is usually appreciated,th e Rule of Law needst o be understooda s a concepto f multiple,c omplexlyin terwovens trands. In the final section of the Article, Fallon discusses the relative priority of various strands of the Rule-of-Lawid eal in diversei nstitutional settings. The Rule of Law is a much celebrated, historic ideal, the precise meaning of which may be less clear today than ever before. Signifi-cantly, however, the meaning of the phrase the Rule of Law-which I shall refer to as the Rule-of-Law ideal-has always been contested. Within the Anglo-American tradition, perhaps the most famous exposi-tion came from a turn-of-the-century British lawyer, A.V. Dicey, who asso-ciated the Rule of Law with rights-based liberalism and judicial review of governmental action. Some have traced the modern ideal to Aristotle, who equated the Rule of Law with the rule of reason;3 others have identified the Rule ofLaw with natural law or respect for transcendent rights. In another famous account-perhaps the most influential of the past half-century-Lon L. Fuller argued that the Rule of Law requires publicly promulgated rules, laid down in advance, and adherence to at least some natural-law values. By contrast, positivists have insisted that the Rule of Law is one thing, its moral virtue or abomination something else. In American legal discourse, debates about the historical and conceptual foundations of the Rule-of-Law ideal are seldom engaged directly. Indeed, many invocations of the Rule of Law are smug or hortatory. Within the twentieth century, however, references to the Rule of Law have increasingly acquired either defensive or accusatory tones.The sources of unease are multiple, and possibly even conflicting. But any account should begin with the familiar contrast between the Rule of Law and the rule of men [sic].10 Within perhaps the most familiar understanding of this distinction, the law-and its meaning-must be fixed and publicly known in advance of application, so that those apply-ing the law, as much as those to whom it is applied, can be bound by it. If courts (or the officials of any other institution) could make law in the guise of applying it, we would have the very rule of men with which the Rule of Law is supposed to contrast. This account is undoubtedly far too crude; one of my principal aims in this Article is to qualify and revise it. Nonetheless, the caricature con-tains a glint of truth, which helps to illuminate the doubt and confusion that have increasingly surrounded debates about the Rule of Law and its implications for American constitutional democracy. In particular, un-certainty and confusion have mounted among those who, on the one hand, are disposed to accept (or at least find it hard to reject) the rough sketch of the Rule of Law drawn above and yet, on the other hand, be-lieve that the American legal system must surely count as a paradigm of the Rule of Law. Respect for the Rule of Law is central to our political and rhetorical traditions, possibly even to our sense of national identity. Yet the modern American legal system departs significantly from the pro-visional account of the Rule of Law that I just provided, and it is strongly arguable that no plausible legal system could avoid departing from it in some respects. A mix of political, jurisprudential, and intellectual currents has pro-duced this state of affairs. Politically, twentieth-century legislatures have vastly expanded the sweep of governmental regulation,13 and they have frequently relied on administrative agencies with vague mandates and a mixture of enforcement, rulemaking, and adjudicative powers to imple-ment regulatory policies. Administrative adjudication has sometimes been an explicit occasion for policymaking. Jurisprudentially, courts have often strayed from the originally understood meaning of statutory and constitutional provisions.16 Intellectually, the Legal Realists and their followers have advanced powerful claims that there is broad room for judicial choice about which rule to apply to particular facts, about how rules should be formulated, and about whether exceptions to recog-nized rules should be permitted. Even some ardent defenders of liberal legal institutions have acknowledge