The Authority of Law: Essays on Law and Morality by …

Contestation about what the Rule of Law requires is partly a productof the fact that law itself comprises many things, and peopleprivilege different aspects of a legal system. For some the common lawis the epitome of legality; for others, the Rule of Law connotes theimpartial application of a clearly drafted statute; for others stillthe Rule of Law is epitomized by a stable constitution that has beenembedded for centuries in the politics of a country. When Aristotle(Politics 1287b), contrasted the Rule of Lawwith the rule of men, he ventured the opinion that “a man may bea safer ruler than the written law, but not safer than the customarylaw”. In our own era, F.A. Hayek (1973: 72 ff.) has been atpains to distinguish the rule of law from the rule of legislation,identifying the former with something more like the evolutionarydevelopment of the common law, less constructive and less susceptibleto deliberate control than the enactment of a statute. There is alsocontinual debate about the relation between law and the mechanisms ofgovernment. For some, official discretion is incompatible with theRule of Law; for others it depends on how the discretion is framed andauthorized. For some the final determination of a court amounts to theRule of Law; for others, aware of the politics of the judiciary, ruleby courts (particularly a politically divided court) is as much aninstance of the rule of men as the decision of any other junta orcommittee (see Waldron 2002 for a full account of thesecontroversies).

Joseph raz the authority of law essays on law and morality …

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.

Joseph raz the authority of law essays on law and morality quotes
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The Fuller Rule of Law | Kyle L Murray

The best known are the eight formal principles of Lon Fuller’s“inner morality of law”: (1964; see also the lists inFinnis 1980: 270–1; Rawls 1999: 208–10; and Raz 1979 [1977]:214–18) generality; publicity; prospectivity; intelligibility;consistency; practicability; stability; and congruence. Theseprinciples are formal, because they concern the form of the norms thatare applied to our conduct.

The term "natural law" is ambiguous

Legal Positivism | Internet Encyclopedia of Philosophy

At the same time, there are concerns about the mentality that isfostered by an excessive emphasis on the Rule of Law. In its mostextreme form, the Rule of Law can have the effect of closing down thefaculty of independent moral thought in the officials (the judges, forexample: see Cover 1975) or in the ordinary members of a community,making them anxious in the face of uncertainty and distrustful oftheir own or others’ individual judgments (see Henderson1990). Sometimes it isimportant, for the sake of clear and courageous moral judgment, not toexaggerate the importance of something being required by law. Otherconcerns about the mentality fostered by the Rule of Law includeconcerns about legalism and the tendency to over-formalize orover-bureaucratize relationships that are more healthily conceived interms that are more informal. This is not just a matter of legalizingthe personal realm; it is also a matter of understanding, for example,the damage that can be done to relations between officials (likesocial workers) and vulnerable clients by replacing bringing in rigidrules to replace relatively informal professional norms (Simon1983).

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But what authority has the law over us

An agent is one who acts on behalf of another. Many transactions are conducted by agents so acting. All corporate transactions, including those involving governmental organizations, are so conducted because corporations cannot themselves actually act; they are legal fictions. Agencies may be created expressly, impliedly, or apparently. Recurring issues in agency law include whether the “agent” really is such, the scope of the agent’s authority, and the duties among the parties. The five types of agents include: general agent, special agent, subagent, agency coupled with an interest, and servant (or employee). The independent contractor is not an employee; her activities are not specifically controlled by her client, and the client is not liable for payroll taxes, Social Security, and the like. But it is not uncommon for an employer to claim workers are independent contractors when in fact they are employees, and the cases are often hard-fought on the facts.