Getting to the Rule of Law: NOMOS L

Overview

The rule of law has been celebrated as “an unqualified human good," yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an “inner morality of law,” or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about ...

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Getting to the Rule of Law: NOMOS L

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Overview

The rule of law has been celebrated as “an unqualified human good," yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an “inner morality of law,” or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power “outside the law” justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks?

In Getting to the Rule of Law a group of contributors from a variety of disciplines address many of the theoretical legal, political, and moral issues raised by such questions and examine practical applications “on the ground” in the United States and around the world. This timely, interdisciplinary volume examines the ideal of the rule of law, questions when, if ever, executive power “outside the law” is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions.

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Product Details

  • ISBN-13: 9780814728437
  • Publisher: New York University Press
  • Publication date: 9/1/2011
  • Pages: 308
  • Product dimensions: 5.70 (w) x 8.30 (h) x 1.00 (d)

Meet the Author

James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He is the author or co-author of several books, including Securing Constitutional Democracy: The Case of Autonomy and, with Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues.

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Table of Contents

Preface James E. Fleming ix

Contributors xi

Part I Getting to the Concept of the Rule of Law

1 The Rule of Law and the Importance of Procedure Jeremy Waldron 3

2 The Limits of Process Robin West 32

3 A Substantive Conception of the Rule of Law: Nonarbitrary Treatment and the Limits of Procedure Corey Brettschneider 52

4 Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares? Martin Rrygier 64

Part II Maintaining or Restoring the Rule of Law after September 11, 2001

5 Separation of Powers and the National Security State Benjamin A. Kleinerman 107

6 Judicial Oversight, Justice, and Executive Discretion Bounded by Law Curtis A. Bradley 135

7 The Instability of "Executive Discretion" Lionel K. McPherson 144

8 Constitutional Theory, the Unitary Executive, and the Rule of Law Sotirios A. Barber James E. Fleming 156

Part III Building the Rule of Law after Military Interventions

9 Justice on the Ground?: International Criminal Courts and Domestic Rule of Law Building in Conflict-Affected Societies Jane E. Stromseth 169

10 In Defense of Imperialism? The Rule of Law and the State-Building Project Tom Ginsburg 224

11 Bystanders, the Rule of Law, and Criminal Trials Larry May 241

12 Might Still Distorts Right: Perils of the Rule of Law Project Richard Miller 265

Index 293

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