The Rule of Law and the Separation of Powers

596 Pages·2016·39.556 MB·English

by  Bellamy, Richard

The Rule of Law and the Separation of Powers
The International Library of Essays in Law and Legal Theory
Second Series
Series Editor: Tom D. Campbell
Titles in the Series:
Freedom of Speech, Volumes I and II Human Rights
Larry Alexander Robert McCorquodale
Law and Legal Interpretation Anti-Discrimination Law
Fernando Atria and D. Neil MacCormick Christopher McCrudden
Privacy Medical Law and Ethics
Eric Barendt Sheila McLean
Comparative Legal Cultures Mediation
John Bell Carrie Menkel-Meadow
Constitutionalism and Democracy Environmental Law
Richard Bellamy Peter S. Menell
The Rule of Law and the Separation of Powers Criminal Law
Richard Bellamy Thomas Morawetz
Law and Language
Contract Law, Volumes I and II
Thomas Morawetz
Brian Bix
Law and Anthropology
Corporate Law
Martha Mundy
William W. Bratton
Gender and Justice
Law and Democracy Ngaire Najjine
Tom Campbell and Adrienne Stone
Seminal Issues in Mental Health Law
Legal Positivism
Jill Peay
Tom D. Campbell
Law and Economics
Administrative Law Eric A. Posner
Peter Cane
Japanese Law
International Trade Law
J Mark Ramseyer
Ronald A. Cass and MichaelS. Knoll
Restorative Justice
Sociological Perspectives on Law,
Declan Roche
Volumes I and II
Roger Cotterrell Constitutional Theory
Wojciech Sadurski
Intellectual Property
Peter Drahos Justice
Wojciech Sadurski
Cyberlaw, Volumes I and II
Brian Fitzgerald Regulation
Colin Scott
Family, State and Law, Volumes I and II
Michael D. Freeman War Crimes Law, Volumes I and II
Gerry Simpson
Natural Law
Robert P George Restitution
Lionel D. Smith
The Creation and Interpretation of
Commercial Law Freedom of Information
Clayton P. Gillette Robert G. Vaughn
Competition Law Relocating Sovereignty
Rosa Greaves Neil Walker
Law and Morality Tort Law
Kenneth Einar Himma and Brian Bi.x Ernest J Weinrib
Chinese Law and Legal Theory Rights
Perry Keller Robin West
Constitutional Law Welfare Law
Ian D. Loveland Lucy A. Williams
The Rule of Law and the
Separation of Powers
Edited by
Richard Bellamy
University of Essex, UK
~ ~ ~~o~~~;n~~:up
LONDON AND NEW YORK
First published 2005 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an inform a business
Copyright © 2005 Richard Bellamy. For copyright of individual articles please refer to the
Acknowledgements.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in
any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only
for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
The rule of law and the separation of powers. - (The
international library of essays in law and legal theory.
Second series)
.1 Rule of law 2. Separation of powers
I. Bellamy, Richard (Richard Paul)
340.1' I
Library of Congress Cataloging-in-Publication Data
The rule of law and the separation of powers I edited by Richard Bellamy.
p. em.-(The International library of essays in law and legal theory (2nd series))
Includes bibliographical references.
ISBN 0-7546-2463-3 (alk. paper)
1. Separation of powers. 2. Rule of law. I. Bellamy, Richard (Richard Paul) II.
International library of essays in law and legal theory. Second series
K3173.R85 2004
340' .11--dc22
2004057431
Transfered to Digital Printing in 2011
ISBN 9780754624639 (hbk)
Contents
Acknowledgements vii
Series Preface ix
Introduction: The Rule of Law as the Rule of Persons xi
PART I DEFINING THE RULE OF LAW
Matthew H. Kramer (2004), 'On the Moral Status of the Rule of Law', Cambridge
Law Journal, 63, pp. 65-97. 3
2 Margaret Jane Radin (1989), 'Reconsidering the Rule of Law', Boston University
Law Review, 69, pp. 781-819. 37
3 Joseph Raz (1977), 'The Rule of Law and its Virtue', Law Quarterly Review, 93,
pp. 195-211. 77
4 Paul Craig (1997), 'Formal and Substantive Conceptions of the Rule of Law: An
Analytical Framework', Public Law, pp. 467-87. 95
5 Jeremy Waldron (2002), 'Is the Rule of Law an Essentially Contested Concept (in
Florida)?', Law and Philosophy, 21, pp. 137-64. 117
PART II THE RULE OF LAW AND JUDICIAL DISCRETION
6 F.A. Hayek (1956), 'Freedom and the Rule of Law', Listener, pp. 989-90
13 December 1956, and pp. 1067-68 27 December 1956. 147
7 Ronald Dworkin (1963), 'Judicial Discretion' ,Journal of Philosophy, 60,
pp. 624-38. 157
8 J.L. Mackie (1977), 'The Third Theory of Law', Philosophy and Public Affairs,
7, pp. 3-16. 173
9 Cass R. Sunstein (1995), 'Incompletely Theorized Agreements', Harvard Law
Review, 108, pp. 1733-72. 187
10 Martin Shapiro (1965), 'Stability and Change in Judicial Decision-Making:
Incrementalism or Stare Decisis?', Law in Transition Quarterly, 2, pp. 134-57. 227
PART III THE SEPARATION OF POWERS
11 Richard Bellamy (1996), 'The Political Form of the Constitution: The Separation
of Powers, Rights and Representative Democracy', Political Studies, 44,
pp. 436-56. 253
vi The Rule of Law and the Separation of Powers
12 Eric Barendt (1995), 'Separation of Powers and Constitutional Government',
Public Law, pp. 599-619. 275
13 John Braithwaite (1997), 'On Speaking Softly and Carrying Big Sticks: Neglected
Dimensions of a Republication Separation of Powers', University of Toronto Law
Journal, ,74 pp. 305-61. 297
14 Geoffrey Brennan and Alan Hamlin (1994 ), 'A Revisionist View of the Separation
of Powers', Journal of Theoretical Politics, ,6 pp. 345-68. 355
15 Robert E. Goodin (1996), 'Institutionalizing the Public Interest: The Defense of
Deadlock and Beyond', American Political Science Review, ,09 pp. 331-43. 379
PART IV PARLIAMENTARISM AND FEDERALISM
16 Bruce Ackennan (2000), 'The New Separation of Powers', Harvard Law Review,
113,pp.634-729. 395
17 Koen Lenae1ts (1990), 'Constitutionalism and the Many Faces of Federalism',
American Journal of Comparative Law, 38, pp. 205-63. 491
Name Index 551
Acknowledgements
I am grateful to Dario Castiglione for his advice on the selection of the articles and to Louise
Hawkridge for her efficiency in tracking them down. Dario also offered invaluable comments
on my introduction, as did members ofthe Glasgow Law Department seminar, especially Adam
Tomkins, and my colleagues in the Essex Political Theory Reading Group, Jason Glynos, David
Howarth, Aletta Norval, Albert Weale and most particularly Sheldon Leader.
The editor and publishers wish to thank the following for permission to use copyright material.
American Journal of Comparative Law for the essay: Koen Lenae1ts ( 1990), 'Constitutionalism
and the Many Faces of Federalism', American Journal of Comparative Law, 38, pp. 205-63.
Copyright © 1990 American Association for the Comparative Study of Law, Inc.
Blackwell Publishing Limited for the essays: Richard Bellamy (1996), 'The Political Form of
the Constitution: The Separation of Powers, Rights and Representative Democracy', Political
Studies, ,44 pp. 436-56; J.L. Mackie (1977), 'The Third Theory of Law', Philosophy and
Public Affairs, 7, pp. 3-16.
Cambridge University Press for the essay: Robert E. Goodin (1996), 'Institutionalizing the
Public Interest: The Defense of Deadlock and Beyond', American Political Science Review,
90, pp. 331--43. Copyright© 1996 American Political Science Association.
Harvard Law Review for the essays: Cass R. Sunstein (1995), 'Incompletely Theorized
Agreements', Harvard Law Review, 108, pp. 1733-72; Bruce Ackerman (2000), 'The New
Separation of Powers', Harvard Law Review, ,311 pp. 634--729.
Journal of Philosophy for the essay: Ronald Dworkin (1963), 'Judicial Discretion', Journal of
Philosophy, 60, pp. 624-38.
Kluwer Academic Publishers for the essay: Jeremy Waldron (2002), 'Is the Rule of Law an
Essentially Contested Concept (in Florida)?', Law and Philosophy, 21, pp. 137-64. Copyright
© 2002 Kluwer Academic Publishers.
Matthew H. Kramer (2004 ), 'On the Moral Status of the Rule of Law', Cambridge Law Journal,
63, pp. 65-97. Copyright © 2004 Matthew H. Kramer.
Listener for the essay: F.A. Hayek (1956), 'Freedom and the Rule of Law', Listener, pp. 989-
90 13 December 1956, and pp. 1067-68 27 December 1956.
viii The Rule of Law and the Separation of Powers
Margaret Jane Radin (1989), 'Reconsidering the Rule of Law', Boston University Law Review,
,96 pp. 781-819. Copyright© 1989 Margaret Jane Radin.
Sage Publications for the essay: Geoffrey Brennan and Alan Hamlin (1994), 'A Revisionist
View of the Separation of Powers', Journal of Theoretical Politics, ,6 pp. 345-68.
Sweet and Maxwell for the essays: Joseph Raz (1977), 'The Rule of Law and its Virtue', Law
Quarterly Review, ,39 pp. 195-211; Paul Craig (1997), 'Formal and Substantive Conceptions
of the Rule of Law: An Analytical Framework', Public Law, pp. 467-87; Eric Barendt (1995),
'Separation of Powers and Constitutional Government', Public Law, pp. 599-619.
University of Toronto Press Incorporated for the essay: John Braithwaite (1997), 'On Speaking
Softly and Canying Big Sticks: Neglected Dimensions of a Republication Separation of Powers',
University of Toronto Law Journal, 47, pp. 305-61.
Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary anangement at the first
oppmtunity.
Preface to the Second Series
The first series of the International Library of Essays in Law and Legal Theory has established
itself as a major research resource with fifty-eight volumes of the most significant theoretical
essays in contemporary legal studies. Each volume contains essays of central theoretical
importance in its subject area and the series as a whole makes available an extensive range of
valuable material of considerable interest to those involved in research, teaching and the study
oflaw.
The rapid growth of theoretically interesting scholarly work in law has created a
demand for a second series which includes more recent publications of note and earlier essays
to which renewed attention is being given. It also affords the opportunity to extend the areas
of law covered in the first series.
The new series follows the successful pattern of reproducing entire essays with the
original page numbers as an aid to comprehensive research and accurate referencing. Editors
have selected not only the most influential essays but also those which they consider to be of
greatest continuing importance. The objective of the second series is to enlarge the scope of
the library, include significant recent work and reflect a variety of editorial perspectives.
Each volume is edited by an expert in the specific area who makes the selection on the
basis of the quality, influence and significance of the essays, taking care to include essays
which are not readily available. Each volume contains a substantial introduction explaining
the context and significance of the essays selected.
I am most grateful for the care which volume editors have taken in carrying out the
complex task of selecting and presenting essays which meet the exacting criteria set for the
senes.
TOM CAMPBELL
Series Editor
Centre for Applied Philosophy and Public Ethics
Charles Sturt University