rule_of_law - Justice 2006-1 Rule of Law I have emphasized...

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Justice 2006—1 Rule of Law I have emphasized at several points that Nozick’s possessive libertarian view does not include a requirement of the rule of law. In particular, he aims to show that a minimal state is legitimate, but the rule of law is not an ingredient of a minimal state. Such a state emerges from a network of bilateral agreements in which individuals, endowed with rights, buy protective services to better ensure the protection of those rights. There is no reason to suppose that the purchase of such services will result in a rule of law. That’s because, in Nozick’s view, people buy services as individuals: they are not owed the protection of law as citizens or persons. What I want to do today is to explore the idea of the rule of law and to focus the discussion in particular on a pair of theses in Hayek’s own classical liberal view: namely that the rule of law is both necessary for a free society, and also sufficient. The Hayek arguments are extremely interesting in themselves, but are also of interest because they indicate the distance between Nozick’s libertarianism and other strands of classical liberal and libertarian thought. 1. Rule of Law . The rule of law—the idea of a "government of laws, not men"—is a fundamental ideal in modern democratic societies, and in a wide range of non-democratic societies as well. Locke provides a classic statement of the idea in the Second Treatise . Whether government is a democracy, aristocracy, or monarchy, "the ruling power ought to govern by declared and received laws, and not by extemporaneous dictates and undetermined
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Justice 2006—2 resolutions. For then [i.e., in the absence of the rule of law, with settled and received rules] mankind will be in a far worse condition than in the state of nature. .." 1 —far worse, because insecurity will be greater with power concentrated but unbound by rules. Why has the rule of law been thought to be so important? Answering that question requires at least a rough idea of what the rule of law is. I take the core idea to be, roughly, the following: we have a rule of law when government guides and limits the exercise of its power—whether legislative, executive, and administrative—by reference to norms that are general , rather than focused on particular people; public , rather than secret decrees; announced in advance , rather than after the fact; and reasonably stable . Government ought consistently and impartially to enforce such norms, and it ought to use its power only to enforce them, no matter how attractive or honorable the ends it aims to advance. How this cabining of the exercise of power is achieved is a complicated matter, but a standard part of the story is that there needs to be a judiciary that operates independently of political branches and parties and that has an obligation to be faithful to the legal materials. The diverse arguments in favor of the rule of law suggest that this restriction
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rule_of_law - Justice 2006-1 Rule of Law I have emphasized...

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