Article: The Procedural Rule of Law: Examining Waldron's Argument on Dignity and Agency

Sanne Taekema 

Erasmus University Rotterdam (EUR) - Erasmus School of Law

February 5, 2014

Published in: Annual Review of Law and Ethics, Volume 21, The Rule of Law-Principle, edited by B.S. Byrd, J. Hruschka, and J.C. Joerden, Berlin: Dunckler and Humblot 2013, pp. 133-146. 

Abstract:

Among recent rule of law scholarship, the work of legal philosopher Jeremy Waldron stands out by placing emphasis on the procedural element in the rule of law. The implications of a procedural view of the rule of law are not completely clear, however. The article discusses Waldron's main line of argument and the way his theory diverges from the standard typologies. It argues that there are two weaknesses in his argumentation and that these can be remedied to a large extent by linking the rule of law work more firmly to his account of dignity and to Lon Fuller’s interactionism. I will then discuss his view of the rule of law in relation to international law and argue that he does not fully understand the importance of the interrelations of national and international law for conceptualizing the rule of law. Again, turning to another part of his work that does not concern the rule of law directly provides a source of argument, this time the idea of ius gentium, which can support a different reading of the rule of law as transnational. Thus, by reconstructing Waldron's argument I hope to show that a procedural conception of the rule of law is important in order to relate the rule of law to changing legal circumstances.

Number of Pages in PDF File: 17

Disponível em: <http://ssrn.com/abstract=2391228>. Acesso em 20 fev. 2014.