Rule of law is a concept that is regularly debated by legal philosophers, often in connection to discussion of the concept of law. In this article, the focus is not on the substance of the conceptual claims, but on the methodologies employed by legal philosophers, investigating seminal articles on the rule of law by Joseph Raz and Jeremy Waldron. I argue that their philosophical argumentations often crucially depend on empirical or legal doctrinal arguments. However, these arguments remain underdeveloped. I explore (...) how these arguments could be linked to approaches related to rule of law in different fields of legal scholarship and investigate how the methodologies of these fields may complement each other. Thus, the article aims to provide an argument for a specific form of triangulation of three kinds of approaches to the rule of law: philosophical, social-scientific and legal doctrinal. This method of triangulation is illustrated by a discussion of the World Justice Project’s Rule of Law Index. (shrink)

Talk about law often includes reference to ideals of justice, equality or freedom. But what do we refer to when we speak about ideals in the context of law? This book explores the concept of ideals by combining an investigation of different theories of ideals with a discussion of the role of ideals in law. A comparison of the theories of Gustav Radbruch and Philip Selznick leads up to a pragmatist theory of legal ideals, which provides an interesting new position (...) in the debate about values in law between legal positivists and natural law thinkers. Attention for law's central ideals enables us to understand law's autonomous character, while at the same time tracing its connection to societal values. Essential reading for anyone interested in the role of values or ideals in law. (shrink)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is no less pernicious (...) than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

Modern legal positivism can be criticized for being unduly state-centred, and thus failing to account for the role of law in modern, globalized and fragmented, society. One aspect of that state-centred perspective that has not been addressed adequately, is the role of legal officials. In theories such as that of Jules Coleman or Scott Shapiro, the distinction between officials and ordinary citizens plays a pivotal role: in the rule of recognition that grounds the concept of law, in the conventional character (...) of law and in the guidance function of law. I argue that the role of officials is overstated and the distinction with ordinary people is overdrawn.Resumen:El positivismo jurídico moderno puede ser cuestionado por concentrarse excesivamente en el Estado y, en consecuencia, por su incapacidad para explicar el papel del derecho en una sociedad moderna, fragmentaria y globalizada. Un aspecto que no ha sido abordado adecuadamente por esta perspectiva centralizada en el Estado es el papel de los oficiales del derecho. En teorías como las de Jules Coleman y Scott Shapiro la distinción entre los oficiales y los ciudadanos ordinarios ocupa un papel central: en la regla de reconocimiento que fundamenta el concepto de derecho, en el carácter convencional del derecho y en la función del derecho de guiar la conducta. El estudio sostiene que el papel de los oficiales ha sido sobredimensionado y que la distinción entre éstos y los ciudadanos ordinarios ha sido exagerada. (shrink)

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

Narrating the law: Law and literature as a legal philosophical method Literature sometimes makes a surprise appearance in a legal philosophy text. Novels or stories are used to support a philosophical argument, but also to question basic presuppositions of the law. This contribution investigates in what ways literary fiction can be used in legal philosophy. Legal philosophy tends to focus on abstract theories and arguments, while both literature and law are interested in the concrete. Stories, however, have a contextual quality (...) and ambiguity, making them multi-layered, that the more restricted case description lacks. This makes stories valuable within a philosophical inquiry. I distinguish five functions that stories may fulfil in legal philosophy. Some of these are so radical that they may question the project of legal philosophy itself. However, one need not accept that route; it is the plurality of uses that makes stories an interesting addition to traditional forms of legal philosophy. (shrink)

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

Ideals are important in social reality, but they have been neglected in theories of law, politics, and morality. This book has the role of ideals as its central theme. More specifically, it argues that ideals are necessary to understand pluralism, that they are key elements in controversy and debate, and that they enable development. It combines theoretical analysis of the concept of ideals with discussion of concrete debates and cases, including philosophical debates about politics and equality, sociological studies of the (...) diverse interpretations of the rule of law, and accounts of the development of environmental law and privacy law. Thus, the functioning of ideals is critically examined, showing the merits and limitations of an ideal-oriented approach. (shrink)