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Lecture 4

Philosophy 34-226 Lecture 4: Notes on The Rule of Law

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Lecture 4 on The Rule of Law  Introduction o Everyone is subjected to the law, including the king. (even the king is not above the law)  Dicey's 3 elements of the rule of law o Ariostotle  the law should governed, no one is above the law o Dicey makes the phrase more common No one can be punished or made to suffer except for breaking the law, which must be proven in a regular court (cannot be punished unless you are convicted) No one is above the law and everyone is equal before the law regardless of social, economic, or political status (11th century, the 2 swords theory) Difference between authority (from church and God) and power (emperor) Debate on rules come from authority or power Cannot be punished unless have a legal trial (process) Class-based system, all subjected to the law, equal to the law (but definitely not equal to each other) The rules of law includes the results of judicial decisions determining the rights of private persons How the judge understands a person's rights Rules of law is primarily about prejudgement  Both Raz and Fuller talked about how the rules of law applies today  Rule of Law vs. democracy  criticism of Fuller  you can have formulations and principles of rule of law when your society is not democratic Rules of law does not necessarily support democracy, they are equable to each other  Formalist (thin) vs. Substantive (thick) Substantive  Substance stands under another (it has weight) Raz and Fuller are both formalist thinker Substantive (13th century) - Thomas (Italian thinker)  he asked what is the essence of the law? (monarchy) Cultural move toward the rule of law in the 13th century   If morality is about supporting the common public good, the law as well  Theory of Natural Law (given by God)  provides the basic principles of morality (basic principles of ethics, everyone is subjected to natural law morality, and behind the words of the law are basically morality; the substance of the law is basically morality)  Raz and Fuller did not believe in this  Former requirements of the law is their focus, not the morality o Fuller disagrees with Raz that those principles might oppose eternal morality (some laws do not support God's law, the natural law) o Fuller (8 principles of the law for Governance System, must have all 8)  The rules must be expressed in general terms (Fuller argues rules must apply to everyone; everyone is subjected to the law)  Moral connection  equality (the legal system is more about morality values like equality)  The rules must be publicly promulgated (meaning posted somewhere in public, publicly available, 13th century Thomas)  Everyone must understand the rules and follow them  How to publicly promulgate when democracy is too complicated? The more complex things are, the easier to hide things 3.
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