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Getting to the Rule of Law


James Fleming, 0, 0

Publication Year: 2011

Published by: NYU Press


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pp. vii-viii

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pp. ix-x

This volume of NOMOS — the fi ftieth in the series — emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP) in New Orleans on January 6, 2010, held in conjunction with the...


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pp. xi-xii


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1. The Rule of Law and the Importance of Procedure

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pp. 3-31

The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize...

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2. The Limits of Process

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pp. 32-51

Jeremy Waldron’s claim, as I understand it, is that the “Rule of Law” requires not only that the various laws that govern us consist of general, knowable rules with which we can all comply — the so-called formal requirements of the Rule of Law often identified...

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3. A Substantive Conception of the Rule of Law: Nonarbitrary Treatment and the Limits of Procedure

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pp. 52-63

In his contribution to this volume, Jeremy Waldron1 distinguishes among three possible ways to conceive of the rule of law. First, we might think of the rule of law as defined by formal requirements. These include the requirements that laws must be public...

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

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pp. 64-104

It appears the time of the rule of law has come. In the past twenty or so years, the concept has gone from often-derided but more often ignored margins of public concerns to a somewhat hallowed, if also sometimes hollow, center of many of them. Once a...


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5. Separation of Powers and the National Security State

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pp. 107-134

Although the constitutional struggles of the Bush administration now seem to be in our proverbial “rearview mirror,” the constitutional questions that these struggles brought to the surface will surely remain. The essence of these struggles concerned the...

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6. Judicial Oversight, Justice, and Executive Discretion Bounded by Law

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pp. 135-143

In his interesting and provocative essay, “Separation of Powers and the National Security State,” Benjamin Kleinerman contrasts a purported nineteenth-century approach to separation of powers with a purported modern approach, and he suggests that it would be...

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7. The Instability of “Executive Discretion”

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pp. 144-155

In the United States, terrorism — particularly terrorism that originates in the Muslim world — is widely believed to constitute an unprecedented menace. Post-9/11 doctrine holds that the country can no longer afford to rule out national security measures that...

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8. Constitutional Theory, the Unitary Executive, and the Rule of Law

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pp. 156-166

This essay, part of a larger project, considers theories of the unitary executive and what the best of these theories imports for the rule of law and the future of constitutional theory as a whole. As we see it, at least in a sense that predates Bush administration...


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

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pp. 169-223

Building the rule of law after military interventions is a central preoccupation in many parts of the world today. From Afghanistan to Iraq, from Sierra Leone to East Timor to the Balkans, and elsewhere, national leaders and international actors are struggling to...

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10. In Defense of Imperialism? The Rule of Law and the State-Building Project

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pp. 224-240

The rule of law is not only a philosopher’s concept but a multibillion- dollar industry and the dominant ideal of our time. As a concept, its success is in part a result of its vagueness, as it is broad enough to incorporate an overlapping consensus among free...

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11. Bystanders, the Rule of Law, and Criminal Trials

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pp. 241-264

In discussions about the rule of law in transitional justice, whether in domestic or international contexts, the focus is normally on those who are perpetrators. The puzzle is to fi gure out how to get those who have been perpetrators or those who might become so...

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12. Might Still Distorts Right: Perils of the Rule of Law Project

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pp. 265-292

These days, when intervening governments, separately or in coalition, take over a country and reshape its governance, they say that their goal is the establishment of the rule of law. In this project, they are helped by cadres of civil servants, lawyers, academics...


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pp. 293-298

E-ISBN-13: 9780814728789
E-ISBN-10: 0814728782
Print-ISBN-13: 9780814728437
Print-ISBN-10: 081472843X

Page Count: 320
Publication Year: 2011