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The Rule Of Law As An Institutional Ideal

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Chapter Summary

The rule of law is an institutional ideal concerning the law. On the one hand, rule of law suggests some ideal directly concerning the law, which does not dissolve into "rule by law". On the other hand, insisting on some "objective" meaning of rule of law as contrasted with "rule of men" may raise traditional concerns about its ideological function: Rule of law might be reduced to a patina for the legitimization of power. Focusing instead on rule of law precisely through contrast with "rule by law" helps us to become aware of such hidden ideological potentialities. This chapter suggests that this contrast can make sense only if we presuppose (a) a valid positive law (b) which is not under the purview of the ruling power, and (c) appears from the vantage point of the latter to be irreducible to a sheer instrument.

Keywords: institutional ideal; positive law; rule of law; rule of men; ruling power



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