Joseph raz the authority of law essays on law and morality …
The Authority of Law: Essays on Law and Morality: ..
However this is not the received position. According to Joseph Raz(1977) and others you cannot understand what the Rule of Law is unlessyou already and independently understand what law is and thecharacteristic evils that law is likely to give rise to (which theRule of Law tries to prevent). On this account, legality represents aparticular set of concerns about law that have emerged in ourcivilization. The fact that these concerns are undoubtedly moral incharacter (even though they are not comprehensive moral concerns)means that—in Raz’s view—it is better to keep themseparate from the concept of law itself, for fear of introducing amoral element into that concept.
The Authority of Law: Essays on Law and Morality by Joseph Raz
Is it reasonable to use the Rule of Law to evaluate the way a societyresponds to emergencies? It is often thought that emergencies requireforms of state action that are more peremptory and less procedurallylaborious than those required in normal times. As a matter of fact, anumber of possibilities have been discussed (Scheuerman 2006). One isto insist, in the name of the Rule of Law, that existingconstitutional safeguards should remain in force; that, after all, iswhat they were designed for and these situations are where they aremost urgently needed. Alternatively, in emergencies, one might rely ona general spirit of flexibility and circumstantial sensitivity instate action that is encouraged even in normal times. On this secondoption, the Rule of Law does not present itself as a major constrainton the flexibility of state action in face of danger. As a thirdoption, one might seek to preserve something like the Rule of Law bylaying down in advance specific legal rules to governemergencies—rules that suspend ordinary civil libertiesguarantees for example or authorize widespread discretion on the partof officials to undertake action that would normally be governed bygeneral rules of law. (Machiavelli proposed a version of this in hisDiscourses (1517), extolling the institution of dictator inthe Roman republic.) This option has the advantage of predictability;but its disadvantage is that it endorses a sort ofRule-of-Law-lite, which may eventually infect or supersedethe conception of the Rule of Law that is supposed to be normallyapplicable.