The rule of law: beyond contestedness

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4 Citations (Scopus)

Abstract

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the Rule of Law. By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law noncompliance beyond the concept’s inherent contestedness.

Original languageEnglish
Pages (from-to)480-500
Number of pages21
JournalJurisprudence
Volume8
Issue number3
DOIs
Publication statusPublished - 2 Sep 2017
Externally publishedYes

Keywords

  • Canon
  • Compliance
  • Contest
  • Element
  • Legal theory
  • Rule of Law

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