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One of these is the value of certainty , which requires that all law should be prospective, open, clear and stable so as to maximise the autonomy of the individual.

Traditionally this has been seen to encompass a formal conception of equality, meaning that everyone will be treated the same regardless of the differences between them.

It requires that all have the same negative liberties freedoms from interference. It also requires that these liberties should be protected in the same manner.

However, the rule of law has also been said to encompass a wider notion of equality, such as equality of concern and respect. In defining the rule of law, liberals have often relied on two different conceptions of law, one procedural and rule-based, the other more substantive and rights-based.

They are: that law is sufficiently general there must be rules ; it is publicly promulgated; prospective; clear and intelligible; it is free of contradictions; sufficiently constant to enable people to order their relations; not impossible to obey; and it must be administered in a way sufficiently congruent with the wording of its written rules so that people can abide by them.

These desiderata meant for Fuller that there was a minimum set of standards that law had to follow and that if the proposed law substantially failed to satisfy the standards it would lose its status as a law.

Their claim is that a system of racial segregation, sexual inequality and religious intolerance is compatible with his conception of law as the desiderata say nothing about the actual content of the legal rules.

In contrast, rights-based theories are more concerned with the recognition and formulation of the rule of law as a form of political morality.

According to Ronald Dworkin, a rights-based conception of the rule of law:. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions.

The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.

According to Dworkin:. The most abstract and fundamental point of legal practice is to guide and constrain power of government Whilst it is possible for liberals to disagree over the form of their rule of law definitions, behind both styles of rule of law concept is the value of reciprocity between the law-giver and the law-maker.

Reciprocity is the foundation of both rule-based and rights-based concepts and, as will be argued below, the value of reciprocity makes it possible for the rule of law to work as a normative value.

Thus when speaking of the rule of law, Fuller commented:. Surely the very essence of the Rule of Law is that in acting upon the citizen by putting him in jail, for example, or declaring invalid a deed under which he claims title to property a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties.

If the Rule of Law does not mean this, it means nothing. Applying rules faithfully implies, in turn, that rules will take the form of general declarations Associative obligations are said to exist in communities that are typically fraternal such as families.

The obligations arise when four conditions are met. The members must regard the group as having obligations that hold uniquely to the group; they must accept that these duties bind member to member; they must perceive that these responsibilities are linked to a concern for the wellbeing of each of the members; and the members must believe that the practices of the group show equal concern and respect for each of them.

The underlying value of associative obligations is reciprocity. The principle of reciprocity is therefore integral to the rule of law concept in both rule-book theories and in rights-based theories.

Whether the analysis of the rule of law is limited to the consideration of its procedural aspects or is widened to include the consideration of political morality, reciprocity has a part to play.

Below I will show how even non-liberal analysis of the rule of law has revealed the importance of reciprocity to the rule of law. But now I will proceed to examine the juridical principle of the rule of law.

It is his vision of the rule of law that was accepted in English and Australian legal discourse as authoritative and it remains so today.

The first is that the regular law is supreme over arbitrary and discretionary powers. Finally, the rule of law and the rights it protects are the products of the traditions and customs of the ordinary law, not a written constitutional document.

The primary influence is nineteenth century laissez faire individualism. The rule of the common law marked out the sphere of private autonomy that was free of governmental interference.

Dicey attempted to overcome their logical antagonism in two ways. The first was that even though Parliament was omnicompetent, it was the task of judges to determine the meaning of law.

This meant that statutes could be interpreted so as to not clash with the traditions of the common law. English parliamentarians would never dream of creating legislation that the people would find abhorrent, and even if they did, the voting public would soon remove them from power.

As Sir Owen Dixon said:. If the qualification be law these are matters upon which the validity of a purported enactment may depend and they may accordingly be examinable in the courts.

Similarly, Dicey drastically misconceived the nature of the developing democracy and he failed to predict the extent to which governmental power would expand into the private sphere.

The cumulative effect of the defects is that the rule of law runs a very slow second to parliamentary sovereignty. That state has now disappeared.

Winterton has stated that:. Parliamentary sovereignty reduces the rule of law to a constitutional posture rather than a hard-edged legal principle.

However, in the last ten years this version of parliamentary sovereignty has undergone serious challenge. Other recent attempts have focused on setting the rule of law as the foundational principle of judicial review, which, when breached, would allow judges to strike down legislative and administrative action.

For example, T R S Allan is prominent amongst jurists for his attempt to have the rule of law principle seen as a constitutional doctrine of equal strength to parliamentary supremacy.

More recently, Allan has stated that:. The distinction which I formerly drew so sharply, between the interpretation of statutes, on the one hand, and a refusal to apply them in cases of serious injustice, on the other, was probably mistaken.

If political morality justifies a restrictive interpretation of legislation infringing basic rights, I believe it must also justify its disapplication in cases of sufficient gravity.

The limits on the power of a democratic majority to achieve its legislative will are ultimately to be found in the common law; and the common law is too subtle to tolerate the absurdity - even the constitutional contradiction - of wholly unlimited legislative power.

Allan argues that:. For example, in Kartinyeri v The Commonwealth [55] Gummow and Hayne JJ stated the occasion had yet to arise where the High Court could examine the role of the rule of law in the Australian Constitution.

Only Kirby J commented on fundamental norms, his comment being directed to the use of international human rights norms in statutory interpretation, not with fundamental common law rights.

Similarly, the High Court has refused to invalidate state based legislation for the confiscation of property, in cases where the State seeks to compulsorily acquire property without just terms, [58] and where the property is acquired on grounds that it belonged to a person charged with a serious offence.

I will now turn to a critical examination of those liberal underpinnings. Part One has illustrated the liberal underpinnings of the rule of law and the current role it is playing in debates about common law constitutionalism.

In this Part, I will summarise the criticisms that have been levelled at legal systems relying on the liberal rule of law. These criticisms go to the heart of the current liberal debates.

Perhaps more distressingly, the current debates have not taken these criticisms seriously and there has been no systematic examination of whether the liberal positions can withstand these criticisms.

It has been argued that the rule of law relies at its heart on a particular conception of the legal subject.

Marxism and feminist movements have been particularly critical of this conception, and attempt to show how it is not a natural product but rather the outcome of particular social forces.

This naturalisation of the legal person has been said to involve a logic of identity, that being, an ideology of sameness.

Marxism, with its emphasis on historical materialism, believes that legal relations are merely expressions of the relations of production.

As such people relate to each other as property owners in a market which requires them to have equal status but not equal material status. The real social and material characteristics of the relationships are concealed by this notion of the legal person.

Soviet jurist Evgeny Pashukanis argued that the essence of capitalistic law is found in the rights and duties of legal individuals, equal before the law.

Without such a system of recognition the market for commodities would not function. The rule of law and the constructed legal individual are therefore the direct fulfillment of the commodity form of relations.

Feminist movements have also criticised the way the legal person is constructed, but with a concentration on the sex-gender aspects of the construction.

The construction of the legal person relies on the notion of a separate, autonomous and rational being who approximates a man capable of employing rights aggressively and assertively and in ways that follow rules.

The formal law cannot see the way women are tied to a private sphere in which they are disempowered. To the extent that the rule of law describes ways of protecting individuals from public powers, it ignores the manifest exercise of private powers.

Formalism is central to the rule of law as it purports to limit judicial creativity via the process of legal reasoning. Without it, judges would decide as they wish, without direction or limitation.

Formalism, in this way, preserves the difference between politics and law. Crits see formalism as a manifestation of ideology which perpetuates the myth that rules are applied according to a rational, neutral and objective method.

The crits argue that choices made in judgments cannot be made from within the law but need to be made with reference to the politics and history of ideology.

As a result of this overwhelming subjectivity there can be no possibility of such a thing as pure legal reasoning. Indeed, legal doctrine is merely an empty vessel into which the value choices of the judge are poured.

The liberal basis of the rule of law is also said to be subject to fundamental and irreconcilable contradictions.

Liberalism is seen as. These contradictory values are reflected in virtually all our common law and statutory concepts and rights.

The necessary outcome of a contradictory liberal philosophy and a subjective legal reasoning is that law is indeterminate at its core, in its very inception, not just in its applications.

Law as both an ideology and a technique cannot generate a single, non-contradictory set of outcomes. There are degrees to which this idea is accepted.

Some crits believe that a determinate answer can never be given, others believe rules at least provide guidance but not assurance of outcome.

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Extract from rules, N " As we are typically associated as being an adult pornographic community, we will not allow any sort of nudity or sexual content involving characters that could be seen as depicting somebody as underage.

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View Community Rules. Help Support LoversLab. Sign In Sign Up. For Marxists it is a legitimating ideology which disguises the class-based hegemonising function of law.

For critical legal studies movements, the rule of law paints over the fundamental contradictions of modern life, including the tension between the need to be free and the desire to live in community.

Perhaps the most devastating criticism of the rule of law is the sociological criticism that it has become politically and socially outdated. The essence of the criticism is that the modern rule of law doctrine is the creature of the nineteenth century, one based on a laissez faire economy, run by the market of individuals and where government was necessary only for the tasks of protection and the provision of services which could not be provided by the market.

That society has disappeared, although its ghost chains may occasionally be rattled by conservatives. The conclusion then reached is that the rule of law ideal has lost both its descriptive and prescriptive force.

It does not correctly represent the reality of the post-modern state nor does it provide a model for assessing its performance. This article deals at length with these criticisms and attempts to prove that the rule of law concept remains an essential element of modern society, even in the face of these radical changes in the function of modern law.

In effect, I will try to persuade you to clap for the rule of law, because if we stop believing in it, the ideals that it represents will cease to exist and the practical effects would be disastrous.

The article is set out as follows. Part II begins with a survey of the rule of law concept and the basic themes of liberal philosophy that run through it.

The primary importance of the rule of law in the liberal tradition is the emphasis it places on certainty, generality and equality in the legal system, and on an underlying idea of reciprocity between the state and citizen.

Part III examines how this liberal concept took juridical form in the classic formulation of British constitutionalism set out by A V Dicey.

This is a well-trodden path but in doing this I will briefly describe the current attempts to employ the Diceyan rule of law as the basis of common law constitutionalism.

Common law constitutionalism states that the rule of law, and not parliamentary sovereignty, is the supreme authority of law, placing real limits on the exercise of legislative and executive power.

The difficulty with these attempts is that the rule of law unlike parliamentary sovereignty is not easily formulated as a juristic principle. This article will not deal in depth with these issues: it has a different purpose.

The purpose of this article is to show that even if we take the efforts to raise the juristic strength of the rule of law seriously, the rule of law remains vulnerable to a number of criticisms from outside liberal philosophy.

Part IV examines these criticisms. They come from a variety of sources but all aim at dismantling the key claims that the liberal rule of law makes in relation to providing certainty, generality and equality.

I will concentrate on criticisms drawn primarily from the Left, namely from Marxism, feminism and critical legal studies. I will also summarise the primarily sociological criticism of the rule of law which states that it is an outmoded principle that no longer reflects the reality of modern legal systems.

In Part V I attempt to justify a continued adherence to the rule of law. I defend the rule of law concept by reference to its ethical and normative ideological function, and argue that the rule of law necessarily retains a relationship of reciprocity between the state and the subject that has a proven value.

I conclude with some observations on future directions for the rule of law and a possible program of reformulation of the principle.

From these two features it is possible to gauge some basic principles that are central to the concept. One of these is the value of certainty , which requires that all law should be prospective, open, clear and stable so as to maximise the autonomy of the individual.

Traditionally this has been seen to encompass a formal conception of equality, meaning that everyone will be treated the same regardless of the differences between them.

It requires that all have the same negative liberties freedoms from interference. It also requires that these liberties should be protected in the same manner.

However, the rule of law has also been said to encompass a wider notion of equality, such as equality of concern and respect. In defining the rule of law, liberals have often relied on two different conceptions of law, one procedural and rule-based, the other more substantive and rights-based.

They are: that law is sufficiently general there must be rules ; it is publicly promulgated; prospective; clear and intelligible; it is free of contradictions; sufficiently constant to enable people to order their relations; not impossible to obey; and it must be administered in a way sufficiently congruent with the wording of its written rules so that people can abide by them.

These desiderata meant for Fuller that there was a minimum set of standards that law had to follow and that if the proposed law substantially failed to satisfy the standards it would lose its status as a law.

Their claim is that a system of racial segregation, sexual inequality and religious intolerance is compatible with his conception of law as the desiderata say nothing about the actual content of the legal rules.

In contrast, rights-based theories are more concerned with the recognition and formulation of the rule of law as a form of political morality.

According to Ronald Dworkin, a rights-based conception of the rule of law:. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions.

The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights.

It does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.

According to Dworkin:. The most abstract and fundamental point of legal practice is to guide and constrain power of government Whilst it is possible for liberals to disagree over the form of their rule of law definitions, behind both styles of rule of law concept is the value of reciprocity between the law-giver and the law-maker.

Reciprocity is the foundation of both rule-based and rights-based concepts and, as will be argued below, the value of reciprocity makes it possible for the rule of law to work as a normative value.

Thus when speaking of the rule of law, Fuller commented:. Surely the very essence of the Rule of Law is that in acting upon the citizen by putting him in jail, for example, or declaring invalid a deed under which he claims title to property a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties.

If the Rule of Law does not mean this, it means nothing. Applying rules faithfully implies, in turn, that rules will take the form of general declarations Associative obligations are said to exist in communities that are typically fraternal such as families.

The obligations arise when four conditions are met. The members must regard the group as having obligations that hold uniquely to the group; they must accept that these duties bind member to member; they must perceive that these responsibilities are linked to a concern for the wellbeing of each of the members; and the members must believe that the practices of the group show equal concern and respect for each of them.

The underlying value of associative obligations is reciprocity. The principle of reciprocity is therefore integral to the rule of law concept in both rule-book theories and in rights-based theories.

Whether the analysis of the rule of law is limited to the consideration of its procedural aspects or is widened to include the consideration of political morality, reciprocity has a part to play.

Below I will show how even non-liberal analysis of the rule of law has revealed the importance of reciprocity to the rule of law. But now I will proceed to examine the juridical principle of the rule of law.

It is his vision of the rule of law that was accepted in English and Australian legal discourse as authoritative and it remains so today.

The first is that the regular law is supreme over arbitrary and discretionary powers. Finally, the rule of law and the rights it protects are the products of the traditions and customs of the ordinary law, not a written constitutional document.

The primary influence is nineteenth century laissez faire individualism. The rule of the common law marked out the sphere of private autonomy that was free of governmental interference.

Dicey attempted to overcome their logical antagonism in two ways. The first was that even though Parliament was omnicompetent, it was the task of judges to determine the meaning of law.

This meant that statutes could be interpreted so as to not clash with the traditions of the common law.

English parliamentarians would never dream of creating legislation that the people would find abhorrent, and even if they did, the voting public would soon remove them from power.

As Sir Owen Dixon said:. If the qualification be law these are matters upon which the validity of a purported enactment may depend and they may accordingly be examinable in the courts.

Similarly, Dicey drastically misconceived the nature of the developing democracy and he failed to predict the extent to which governmental power would expand into the private sphere.

The cumulative effect of the defects is that the rule of law runs a very slow second to parliamentary sovereignty. That state has now disappeared.

Winterton has stated that:. Parliamentary sovereignty reduces the rule of law to a constitutional posture rather than a hard-edged legal principle.

However, in the last ten years this version of parliamentary sovereignty has undergone serious challenge. Other recent attempts have focused on setting the rule of law as the foundational principle of judicial review, which, when breached, would allow judges to strike down legislative and administrative action.

For example, T R S Allan is prominent amongst jurists for his attempt to have the rule of law principle seen as a constitutional doctrine of equal strength to parliamentary supremacy.

More recently, Allan has stated that:. The distinction which I formerly drew so sharply, between the interpretation of statutes, on the one hand, and a refusal to apply them in cases of serious injustice, on the other, was probably mistaken.

If political morality justifies a restrictive interpretation of legislation infringing basic rights, I believe it must also justify its disapplication in cases of sufficient gravity.

The limits on the power of a democratic majority to achieve its legislative will are ultimately to be found in the common law; and the common law is too subtle to tolerate the absurdity - even the constitutional contradiction - of wholly unlimited legislative power.

Allan argues that:. For example, in Kartinyeri v The Commonwealth [55] Gummow and Hayne JJ stated the occasion had yet to arise where the High Court could examine the role of the rule of law in the Australian Constitution.

Only Kirby J commented on fundamental norms, his comment being directed to the use of international human rights norms in statutory interpretation, not with fundamental common law rights.

Similarly, the High Court has refused to invalidate state based legislation for the confiscation of property, in cases where the State seeks to compulsorily acquire property without just terms, [58] and where the property is acquired on grounds that it belonged to a person charged with a serious offence.

I will now turn to a critical examination of those liberal underpinnings. Part One has illustrated the liberal underpinnings of the rule of law and the current role it is playing in debates about common law constitutionalism.

In this Part, I will summarise the criticisms that have been levelled at legal systems relying on the liberal rule of law.

These criticisms go to the heart of the current liberal debates. Perhaps more distressingly, the current debates have not taken these criticisms seriously and there has been no systematic examination of whether the liberal positions can withstand these criticisms.

It has been argued that the rule of law relies at its heart on a particular conception of the legal subject.

There are degrees to which this idea is accepted. Some crits believe that a determinate answer can never be given, others believe rules at least provide guidance but not assurance of outcome.

Either way, the CLS approach towards indeterminancy has opened up the possibility of the infinite manipulation of legal principle and the consequent collapse of the rule of law.

Marxism was always critical of bourgeois formal equality and the associated values of general law being applied neutrally.

In class instrumentalist versions of Marxism the rule of law is seen as a form of dominant ideology created and molded by a dominant class, in whose interests the law ultimately serves.

Marx argued that the bourgeoisie actually rules through the law but makes it independent of the personal arbitrariness of each individual.

Bourgeois rule is the average rule where:. Their personal power is based on conditions of life which as they develop are common to many individuals, and the continuance of which they, as ruling individuals, have to maintain against others, and, at the same time, to maintain that they hold good for everybody.

The expression of their common interests is made through law and so the rule of law becomes the form in which the bourgeoisie can formulate and impose something which approaches a class will.

The beneficiaries of this system of universal legal personalities are obviously going to be the capitalists whose conditions of life are worth maintaining.

The rule of law defines rights and equities that are separate from the actual lived experience of most individuals.

The very universality and formality of the rule of law, its impersonal nature, is what furthers the interests of the bourgeoisie and what dominates those who fall outside its boundaries.

Furthermore the bourgeoisie play an instrumental role in the creation and operation of this law. This is not to presume that the law is somehow controlled by the bourgeoisie.

Indeed, the rule of law, as bourgeois law exists, in a form beyond individual manipulation. This is why it is useful to the bourgeoisie.

The appeal of the rule of law to the bourgeois is its valuelessness. The ideology of the rule of law comes to be the natural fulfillment of a legal system of equal legal subjects.

The domination caused by the rule of law is not its special preference for bourgeois interests but its refusal to provide special protection for the powerless and special control of the powerful.

As such its existence is not part of a conspiracy but it still remains as a form of domination. In feminism, the neutrality and objectivity of the rule of law once again become questionable once the hierarchies within the private sphere are recognised.

Indeed, there are ways in which the rule of law positively constructs the family and the place of women within it. The good woman is the female counterpart of the legal man.

The legal man can appear detached and autonomous because he can afford to be. His private sphere is in order. Therefore behind the ideology of the market and the legal man lies the accepted ideology of maternalism and the legal woman.

Consequently, the idea of equality in its formal sense as used in the rule of law and liberal feminism is clearly inadequate. Similarly, the more substantive concepts of equality as employed by Dworkin and others also continue to be inadequate as the masculinist ideologies still remain firmly entrenched.

In conjunction with the failure of equality is the collapse of the generality of law and its supposedly neutral and universal standpoint. In all three critical movements there is a recognition of the arbitrary political nature of law.

Because of the failure of legal reasoning, the liberal claim that law is separate from politics is considered by CLS to be a falsehood. There are similarities between this approach and that of the Marxist critique of law as being the embodiment of market relationships.

Feminist approaches also help to illustrate the political nature of law, highlighting the deeply wrought forms of discrimination within legal concepts and legal techniques such as in rape trials.

Both Marxism and CLS have categorised the rule of law as a form of ideology and seek to deny its validity on this ground. What is ideology?

We can understand the rule of law as a form of social consciousness developed in correspondence to a particular material form of life and, therefore, it is an ideological construct.

Neutral ideology refers to systems of thought that attempt a complete understanding of ideas. The class which dominates social relations has a primary role in dissemination of a dominant ideological viewpoint.

The form that this type of ideology takes is universal. The dominant class has to present its ideas as the only rational, universally valid ones.

When viewed in this manner, the rule of law can be seen as negatively ideological, in the way that it justifies or renders invisible, materially unequal social relations.

The closure of a negative ideology forces it to stagnate and it reproduces alienated and repressive social relations. These ideas of contradiction and incoherence are also central to the CLS critique of the rule of law.

The CLS critique begins with examinations of the incoherence of legal doctrine and continues the critique to discover conflicting ideals within the liberal legal system.

The third alternative reading of ideology within Marxism is that of the false consciousness. The categorisation of belief in the rule of law as false consciousness pervades most of the CLS works.

Each society is characterised by a dominant form of legitimation and type of legal rationality , and each has particular characteristics and internal contradictions that mark it as a separate type of order.

Hence the law takes the form of logically formal rational rules, characterised by a formalistic impersonality , which is in turn a feature of the generality created by the rule of law.

These societies and their legal systems are marked by individualism and market orientation. Hence they have been classed by Kamenka and Tay as Gesellschaften.

The success of the Gesellschaft form of law and the legitimating ideology of the rule of law secures for the legal system a high degree of autonomy.

The focus on rules helps to minimise official discretion and a corresponding preoccupation with procedure overcomes concerns for substantive justice.

Additionally, the legal system is further rationalised by the influx of trained lawyers, who are schooled in the analysis of legal forms.

But as capitalism began to mature and the reality of social inequality asserted itself over the ideology of the free market, there is an increasing disenchantment with formal legal rationality.

Growing demands for equality lead to an expansion in the role of the state. Furthermore the traditional distinction between the public and private spheres that characterised the bourgeois formal law breaks down so that the state comes to interfere even in the heart of private law contract.

The bureaucratic-administrative trend expands the scope of the resource allocation function [] of the state with a subsequent increase in the number of interactions between the state and the economic base.

Friedmann [] has summarised some of these as:. The combination of these factors suggests that the legal systems of the Western world are undergoing a profound crisis leading to a dismantling of the rule of law concept.

If the current theories which support the rule of law are liberal, and if those liberal theories cannot deal with the above criticisms, what is left of the rule of law to salvage?

How can the sovereignty of law survive in a society where formally rational law is on the decline? And, more importantly, why should it?

But what they fail to acknowledge is the way that reciprocity is secured as an ideological foundation of the legal system. The rule-follower appears to be the passive recipient of domination in these theories.

However, the relationship between state and citizen as envisioned in the rule of law is not so one-dimensional. Indeed it is possible to argue that the rule of law provides a normative standard with which law-followers can measure the performance of the law-givers.

The rule of law therefore has a normative or ethical function. A commitment to reciprocity, secured by the rule of law, also entails a commitment to rationality in law.

Not every measure of the sovereign, and not only the measures of the sovereign, are law. Law is here a norm which is intelligible and contains an ethical postulate which is frequently that of equality.

Law, then, is ratio and not necessarily voluntas [the will of the sovereign] at the same time. How does general and rational law secure reciprocity?

It does this by maintaining an openness or transparency of legal language. Assume, for example, that the primary function of the legal system is to process normative conflicts that arise in everyday life.

Most of these conflicts are solved at the level of the everyday, but those that cannot be so solved eventually find their way into the legal system.

Ideally, the legal system should be able to solve the conflict and lay down a norm which can be fed back into the life of the community, in effect so as to be absorbed into the life-plans of social actors.

General laws help to maintain this function by creating a minimum standard of transparency in legal language, a minimum of accessible rationality, which allows claims to be made and processed by the legal system.

Any legal system which does not have a minimum transparency will prevent some types of people from having their normative claims decided or, alternatively, where the principle of equality is abandoned, the capacity of the legal system to listen to the normative claims of those considered as minorities or outsiders is removed altogether.

While the original purpose behind the law may have been to further the production process and the rights of property holders, the promises of certainty, generality and equality began to take hold in popular consciousness.

The normative force of the rule of law began to be counter-productive to hegemonising forces. Thompson argued that the potential of rule of law ideology was not that it was purely a mask for class power, but that it was a mask that was made available to lower classes for the first time.

The working classes were not stupid. They could recognise perversions of justice. A legal system which promised justice could not operate in total contradiction.

The effectiveness of any concept of the rule of law must then rest on its ability to work as a normative principle for the legal system itself.

The legal system must justify itself according to its own rule of law ideology. If people are raised to believe in the notion of the rule of law, they will hold the legal system up to scrutiny when it fails to act in accordance with it.

But if the rule of law is to be retained, should the liberal form of state from which it originates also be retained or should the rule of law be restructured to deal with the changes in state forms?

The first is to retain a classical liberal position which attempts to return the state to its traditional minimalist, nightwatchman form. This place is pretty open and welcome to all types of weird stuff..

As for her replacer and her use in sexlab mods I am not ashamed to admit I am not up on all the terms, but even I know this one. I agree even tho she was born a couple hundred years prior, doesn't change the fact that she is still a child.

Unless you do a replacer for her with an older body, then LL will say no way. This includes any character that could be seen as loli, shota, child, or underage teen, regardless of it's position as a virtual character or the intent to be passed off as a mystical race who only looks young; the only thing that matters in this respect is what the character appears to be at a glance.

She's lived over three hundred years as one, and boasts about how her innocent appearance makes killing easier. Topic Locked. Skyrim Adult Mods.

Existing user? Sign in anonymously. Is Babette considered Loli? Each society is characterised by a dominant form of legitimation and type of legal rationality , and each has particular characteristics and internal contradictions that mark it as a separate type of order.

Hence the law takes the form of logically formal rational rules, characterised by a formalistic impersonality , which is in turn a feature of the generality created by the rule of law.

These societies and their legal systems are marked by individualism and market orientation. Hence they have been classed by Kamenka and Tay as Gesellschaften.

The success of the Gesellschaft form of law and the legitimating ideology of the rule of law secures for the legal system a high degree of autonomy.

The focus on rules helps to minimise official discretion and a corresponding preoccupation with procedure overcomes concerns for substantive justice.

Additionally, the legal system is further rationalised by the influx of trained lawyers, who are schooled in the analysis of legal forms.

But as capitalism began to mature and the reality of social inequality asserted itself over the ideology of the free market, there is an increasing disenchantment with formal legal rationality.

Growing demands for equality lead to an expansion in the role of the state. Furthermore the traditional distinction between the public and private spheres that characterised the bourgeois formal law breaks down so that the state comes to interfere even in the heart of private law contract.

The bureaucratic-administrative trend expands the scope of the resource allocation function [] of the state with a subsequent increase in the number of interactions between the state and the economic base.

Friedmann [] has summarised some of these as:. The combination of these factors suggests that the legal systems of the Western world are undergoing a profound crisis leading to a dismantling of the rule of law concept.

If the current theories which support the rule of law are liberal, and if those liberal theories cannot deal with the above criticisms, what is left of the rule of law to salvage?

How can the sovereignty of law survive in a society where formally rational law is on the decline? And, more importantly, why should it?

But what they fail to acknowledge is the way that reciprocity is secured as an ideological foundation of the legal system.

The rule-follower appears to be the passive recipient of domination in these theories. However, the relationship between state and citizen as envisioned in the rule of law is not so one-dimensional.

Indeed it is possible to argue that the rule of law provides a normative standard with which law-followers can measure the performance of the law-givers.

The rule of law therefore has a normative or ethical function. A commitment to reciprocity, secured by the rule of law, also entails a commitment to rationality in law.

Not every measure of the sovereign, and not only the measures of the sovereign, are law. Law is here a norm which is intelligible and contains an ethical postulate which is frequently that of equality.

Law, then, is ratio and not necessarily voluntas [the will of the sovereign] at the same time. How does general and rational law secure reciprocity?

It does this by maintaining an openness or transparency of legal language. Assume, for example, that the primary function of the legal system is to process normative conflicts that arise in everyday life.

Most of these conflicts are solved at the level of the everyday, but those that cannot be so solved eventually find their way into the legal system.

Ideally, the legal system should be able to solve the conflict and lay down a norm which can be fed back into the life of the community, in effect so as to be absorbed into the life-plans of social actors.

General laws help to maintain this function by creating a minimum standard of transparency in legal language, a minimum of accessible rationality, which allows claims to be made and processed by the legal system.

Any legal system which does not have a minimum transparency will prevent some types of people from having their normative claims decided or, alternatively, where the principle of equality is abandoned, the capacity of the legal system to listen to the normative claims of those considered as minorities or outsiders is removed altogether.

While the original purpose behind the law may have been to further the production process and the rights of property holders, the promises of certainty, generality and equality began to take hold in popular consciousness.

The normative force of the rule of law began to be counter-productive to hegemonising forces. Thompson argued that the potential of rule of law ideology was not that it was purely a mask for class power, but that it was a mask that was made available to lower classes for the first time.

The working classes were not stupid. They could recognise perversions of justice. A legal system which promised justice could not operate in total contradiction.

The effectiveness of any concept of the rule of law must then rest on its ability to work as a normative principle for the legal system itself. The legal system must justify itself according to its own rule of law ideology.

If people are raised to believe in the notion of the rule of law, they will hold the legal system up to scrutiny when it fails to act in accordance with it.

But if the rule of law is to be retained, should the liberal form of state from which it originates also be retained or should the rule of law be restructured to deal with the changes in state forms?

The first is to retain a classical liberal position which attempts to return the state to its traditional minimalist, nightwatchman form.

Chief protagonist of this view was Friedrich Hayek, who saw the way towards a free future in an idealised and romanticised version of the laissez faire past.

Judge-made nomos was built on custom according to neutral political principles. It maximised freedom of activity according to a set of basic politically neutral conditions which allowed individuals to coordinate their behaviour.

However, while his theories had an impact on the political posturing of conservative politics, a return to a system of nomos would not appear to be on the cards.

Governments are still involved in every aspect of our lives, even though the justifications for that interference may have shifted from welfarism to managerialism.

A second approach may be to finally surrender the rule of law altogether and go with new state forms on the basis that formal and general law is no longer necessary.

But this essay has argued against such an approach given that it necessarily involves the surrender of the principle of reciprocity.

This can be best illustrated by the example of Nazi Germany, which, when faced with this decision, opted for abandoning formal law altogether.

The Nazis were counselled by jurists like Schmitt to adopt discretionary legal forms because it would allow them to deal directly with the problems facing the volk.

Of course the Nazi experience and the reaction against it shows us that the abandonment of rule of law principles altogether leads to disastrous consequences.

The third approach is the social democratic approach, best illustrated in the works of Franz Neumann. We need to recognise the necessity of the goal of social equality, but we also need to recognise that doing away with the minimal protection of the rule of law will not aid this project.

As Scheuerman states,. Vague and unarticulated administrative regulations may, on the surface, appear to offer a flexibility to the bureaucratic and administrative order, but in reality they often lead to incalculable and arbitrary patterns of behaviour, which bear little resemblance to the desired outcomes of social policy.

This means overcoming the Hayekian obsession with the evils of the welfare state and recognising that social welfare and management can also function effectively under the rule of law.

Lowi has shown how a deformalised body of welfare state law resulted not in achievement of improvements of social conditions but created parcelised conclaves of power, with the effect of paralysing democratic decision-making.

Anything short of this leaves one man subject To some extent we can see this already in the ways that the numerous, non-judicial bodies have openly adopted rule of law principles in their operations, primarily through administrative law principles:.

The bodies established in recent years to hear complaints of unfair dismissal or of racial and other discrimination may have been established, as courts originally were, by legislative-administrative action and they may have been denied the title and status of courts.

Nevertheless, in the English-speaking world, these panels, commissions, tribunals, dealing with complaints that an individual has been dealt with unjustly, are not simply or always bureaucratic-administrative bodies: they do consciously apply and seek to apply principles of Gesellschaft law oriented toward protecting the rights of the individuals before them.

Second on the agenda should be a re-examination of the role of rationality in law and its importance for the rule of law and our understanding of the state.

This should arguably include a re-evaluation of the role of natural law in our understandings of democracy and legal obligation, for it was from natural law that we gained the original requirements of rationality in law.

Finally we need a method of overcoming the traditional antipathy between equality and democracy, on the one hand, and freedom and the rule of law, on the other.

The problem with which this article has been concerned is the continual conflict between liberalism and democracy, embodied in a private conception of rights and the identification of democracy with legitimised state coercion.

This essay has looked at the liberal origins of the rule of law and the critiques of that concept. It has argued that there remains something worthwhile in the rule of law, something worth preserving.

Like Tinkerbell, the rule of law does not exist now. It is the product of the legal imagination. If we do not believe in the rule of law, it is certain to never exist.

However, I have argued that we should try to believe in it because like Tinkerbell, if we believe enough it might become real.

What is needed in current thinking is a bridge over the divide between the rule of law the recognition of basic legal processes and democracy rational political decision-making.

Rights only make sense in the context of a community awareness of them. Any theory that understands rights outside the context of the community that gives them life will be blind to the meaning that those rights have and to implementing them in ways that can be effectively integrated into the everyday lives of people.

The notion of democracy assumes the potential for the creation of consensus. However, conceptually prior to that is the notion of respect for difference.

These are our choices: an individualistic life without community; a democracy without individual safety; or a modern state, founded on respect for difference but fashioned in accordance with a consensus that is based on rationality.

The third way will only be possible if we can create a public law which brings together the hitherto conflicting notions of liberalism and democracy.

Understanding the rule of law as a normative concept is an essential step in that process. I am also extremely grateful to the Editor.

Any errors and misdescriptions are mine. See Dicey, above n 19, For consideration of Murphy J's dicta, see Winterton, above n Both minority judges, Brennan CJ and Dawson J, found that there were no fundamental common law rights that could justify overriding parliamentary sovereignty.

Kable was distinguished by a majority of the Queensland Court of Appeal in A-G Qld v Fardon [] QCA , where a general statutory scheme for detention on the basis of community protection was upheld on the basis that it did not offend the role of the judiciary.

Dawson J felt that any assertion of legal equality would offend principles of parliamentary sovereignty. Weberian sociology of law focused on the formation of legal texts and the development, form and application of rules.

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