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The Rule of Law, Validity Criteria, and Judicial Supremacy

  • Kenneth Einar Himma
Chapter
Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 18)

Abstract

The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This chapter analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standards, which are also standards of political legitimacy, it does not follow that judicial supremacy is politically illegitimate. The analysis here is concerned with just one element that contributes to political legitimacy; no assumption is made, though, satisfaction of procedural rule of law standards is a necessary condition of legitimacy.

Keywords

Legal System Validity Criterion Good Interpretation Procedural Rule Political Legitimacy 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

References

  1. Adler, M.C., and M.D. Dorf. 2003. Constitution existence conditions and judicial review. Virginia Law Review 89: 1105.CrossRefGoogle Scholar
  2. Alexander, L., and F. Schauer. 1997. On extrajudicial interpretation. Harvard Law Review 110: 1359.CrossRefGoogle Scholar
  3. Brennan, W.J. 1986. Speech. In The great debate: Interpreting our written constitution, ed. W.J. Brennan. Washington, DC: Federalist Society.Google Scholar
  4. Dworkin, R. 1977. Taking rights seriously. Cambridge, MA: Harvard University Press.Google Scholar
  5. Dworkin, R. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.Google Scholar
  6. Easterbrook, F.H. 1989–1990. Presidential review. Case Western Law Review 40: 905.Google Scholar
  7. Gray, J.C. 1924. The nature and source of law. New York: The MacMillan Company.Google Scholar
  8. Greenawalt, K. 2009. How to understand the rule of recognition and the American constitution. In The rule of recognition and the U.S. constitution, ed. K.H. Himma and M.C. Adler. Oxford: Oxford University Press.Google Scholar
  9. Hart, H.L.A. 1994. The concept of law, 2nd ed. Oxford: Oxford University Press.Google Scholar
  10. Kramer, L. 2005. The people themselves: Popular constitutionalism and judicial review. Oxford: Oxford University Press.Google Scholar
  11. Leiter, B. 2001. Legal realism and legal positivism reconsidered. Ethics 111: 278.CrossRefGoogle Scholar
  12. Paulsen, M.S. 1994. The most dangerous branch: Executive power to say what the law is. Georgetown Law Journal 83: 217.Google Scholar
  13. Scalia, A. 1997. A matter of interpretation. Princeton: Princeton University Press.Google Scholar
  14. Waldron, J. 1999. Law and disagreement. Oxford: Oxford University Press.CrossRefGoogle Scholar

Copyright information

© Springer Science+Business Media Dordrecht. 2013

Authors and Affiliations

  1. 1.School of LawUniversity of WashingtonSeattleUSA

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