Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

One of the remarkable features of the turmoil surrounding the counting and recounting of votes in the State of Florida in the 2000 US Presidential Election was the frequency with which "the Rule of Law" was invoked. Whether the antagonists in Florida knew it or not, they are in fact aspects of a venerable heritage of contestation that comes down to us as part and parcel of the Rule-of-Law tradition. The fact that "the Rule of Law" has always evoked this (...) contestation has led some to surmise that an old article by a linguistic philosopher, W.B. Gallie, entitled, "Essentially Contested Concepts" might afford the most fruitful basis for approaching the analysis of the term. (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the state's legal authority and (...) its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)