1st Edition

The Rule of Law and the Separation of Powers

Edited By Richard Bellamy Copyright 2005

    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.

    Acknowledgements, Series Preface, Introduction: The Rule of Law as the Rule of Persons, PART I: DEFINING THE RULE OF LAW, 1. Matthew H. Kramer (2004), 'On the Moral Status of the Rule of Law', Cambridge Law Journal, 63, pp. 65-97., 2. Margaret Jane Radin (1989), 'Reconsidering the Rule of Law', Boston University Law Review, 69, pp. 781-819., 3. Joseph Raz (1977), 'The Rule of Law and its Virtue', Law Quarterly Review, 93, pp. 195-211., 4. Paul Craig (1997), 'Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework', Public Law, pp. 467-87., 5. Jeremy Waldron (2002), 'Is the Rule of Law an Essentially Contested Concept (in Florida)?', Law and Philosophy, 21, pp. 137-64., PART II: THE RULE OF LAW AND JUDICIAL DISCRETION, 6. F.A. Hayek (1956), 'Freedom and the Rule of Law', Listener, pp. 989-90 13 December 1956, and pp. 1067-68 27 December 1956., 7. Ronald Dworkin (1963), 'Judicial Discretion' ,Journal of Philosophy, 60, pp. 624-38., 8. J.L. Mackie (1977), 'The Third Theory of Law', Philosophy and Public Affairs, 7, pp. 3-16., 9. Cass R. Sunstein (1995), 'Incompletely Theorized Agreements', Harvard Law Review, 108, pp. 1733-72., 10. Martin Shapiro (1965), 'Stability and Change in Judicial Decision-Making: Incrementalism or Stare Decisis?', Law in Transition Quarterly, 2, pp. 134-57., PART III: THE SEPARATION OF POWERS, 11. Richard Bellamy (1996), 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, pp. 436-56., 12. Eric Barendt (1995), 'Separation of Powers and Constitutional Government', Public Law, pp. 599-619., 13. John Braithwaite (1997), 'On Speaking Softly and Carrying Big Sticks: Neglected Dimensions of a Republication Separation of Powers', University of Toronto Law Journal, 47, pp. 305-61., 14. Geoffrey Brennan and Alan Hamlin (1994 ), 'A Revisionist View of the Separation of Powers', Journal of Theoretical Politics, 6, pp. 345-68., 15. Robert E. Goodin (1996), 'Institutionalizing the Public Interest: The Defense of Deadlock and Beyond', American Political Science Review, 90, pp. 331-43., PART IV PARLIAMENTARISM AND FEDERALISM, 16. Bruce Ackennan (2000), 'The New Separation of Powers', Harvard Law Review, 113, pp.634-729., 17. Koen Lenae1ts (1990), 'Constitutionalism and the Many Faces of Federalism', American Journal of Comparative Law, 38, pp. 205-63., Name Index


    Richard Bellamy

    ’... a welcome addition to the literature on this subject .... seventeen articles by leading scholars.... are preceded by a lengthy introduction in which Bellamy not only summarizes the contributions of the authors contained in the book, but offers his own valuable insights into the rule of law.’ Law and Politics Book Review, 2006