Table Of Content

FM.qxd 20/4/07 2:38 PM Page i THE RULE OF LAW FM.qxd 20/4/07 2:38 PM Page ii Law and Philosophy Library VOLUME 80 Managing Editors FRANCISCO J.LAPORTA,Department of Law, Autonomous University of Madrid,Spain ALEKSANDER PECZENIK†,Department ofLaw,University ofLund,Sweden FREDERICK SCHAUER,John F.Kennedy School of Government, Harvard University,Cambridge,Mass.,U.S.A. Former Managing Editors AULIS AARNIO,MICHAEL D.BAYLES†,CONRAD D.JOHNSON†, ALAN MABE Editorial Advisory Board AULIS AARNIO,Research Institute for Social Sciences, University of Tampere,Finland ZENON BAN´KOWSKI,Centre for Law and Society,University of Edinburgh PAOLO COMANDUCCI,University of Genoa,Italy ERNESTO GARZÓN VALDÉS,Institut für Politikwissenschaft, Johannes Gutenberg Universität Mainz JOHN KLEINIG,Department of Law,Police Science and Criminal Justice Administration,John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK,European Parliament,Brussels,Belgium WOJCIECH SADURSKI,European University Institute, Department of Law,Florence,Italy ROBERT S.SUMMERS,School of Law,Cornell University CARL WELLMAN,Department of Philosophy,Washington University FM.qxd 20/4/07 2:38 PM Page iii The Rule of Law History, Theory and Criticism Edited by PIETRO COSTA University of Florence, Italy DANILO ZOLO University of Florence, Italy With the cooperation of Emilio Santoro FM.qxd 20/4/07 2:38 PM Page iv A C.I.P.Catalogue record for this book is available from the Library of Congress. ISBN 978-1-4020-5744-1 (HB) ISBN 978-1-4020-5745-8 (e-book) Published by Springer, P.O.Box 17,3300 AA Dordrecht,The Netherlands. www.springer.com Printed on acid-free paper All Rights Reserved © 2007 Springer No part ofthis work may be reproduced,stored in a retrieval system,or transmitted in any form or by any means,electronic,mechanical,photocopying,microfilming, recording or otherwise,without written permission from the Publisher,with the exception ofany material supplied specifically for the purpose ofbeing entered and executed on a computer system,for exclusive useby the purchaser ofthe work. FM.qxd 20/4/07 2:38 PM Page v TABLE OF CONTENTS Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Pietro Costa and Danilo Zolo Part I INTRODUCTORY ESSAYS 1 The Rule of Law: A Critical Reappraisal . . . . . . . . . . . . . . . . . . . . 3 Danilo Zolo 2 The Rule of Law: A Historical Introduction . . . . . . . . . . . . . . . . 73 Pietro Costa Part II THE RULE OF LAW IN EUROPE AND THE UNITED STATES 3 The Rule of Law and the “Liberties of the English”: The Interpretation of Albert Venn Dicey . . . . . . . . . . . . . . . . . . 153 Emilio Santoro 4 Popular Sovereignty, the Rule of Law, and the “Rule of Judges”in the United States . . . . . . . . . . . . . . . . . . . . . . . . . 201 Brunella Casalini 5 Rechtsstaat and Individual Rights in German Constitutional History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Gustavo Gozzi 6 État de Droit and National Sovereignty in France . . . . . . . . . . . 261 Alain Laquièze 7 Rechtsstaat and Constitutional Justice in Austria: Hans Kelsen’s Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Giorgio Bongiovanni Part III THE CONTEMPORARY DEBATE 8 The Past and the Future of the Rule of Law . . . . . . . . . . . . . . . 323 Luigi Ferrajoli v FM.qxd 20/4/07 2:38 PM Page vi vi TABLE OF CONTENTS 9 Beyond the Rule of Law: Judges’Tyranny or Lawyers’Anarchy? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 Pier Paolo Portinaro 10 The Rule of Law and Gender Difference . . . . . . . . . . . . . . . . . 371 Anna Loretoni 11 Machiavelli, the Republican Tradition, and the Rule of Law . . 387 Luca Baccelli 12 Leoni’s and Hayek’s Critique of the Rule of Law in Continental Europe . . . . . . . . . . . . . . . . . . . . . . . . . 421 Maria Chiara Pievatolo Part IV THE RULE OF LAW AND COLONIALISM 13 The Rule of Law and the Legal Treatment of Native Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Bartolomé Clavero 14 The Colonial Model of the Rule of Law in Africa: The Example of Guinea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467 Carlos Petit Part V THE RULE OF LAW IN ISLAM 15 Is Constitutionalism Compatible with Islam? . . . . . . . . . . . . . . 515 Raja Bahlul 16 The Rule of Morally Constrained Law: The Case of Contemporary Egypt . . . . . . . . . . . . . . . . . . . . . . 543 Baudouin Dupret PART VI THE RULE OF LAW AND ORIENTAL CULTURES 17 “Asian Values”and the Rule of Law . . . . . . . . . . . . . . . . . . . . 565 Alice Ehr-Soon Tay 18 The Rule of Law and Indian Society: From Colonialism to Post-Colonialism . . . . . . . . . . . . . . . . . . 587 Ananta Kumar Giri 19 The Chinese Legal Tradition and the European View of the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615 Wu Shu-Chen FM.qxd 20/4/07 2:38 PM Page vii TABLE OF CONTENTS vii 20 Modern Constitutionalism in China . . . . . . . . . . . . . . . . . . . . 633 Lin Feng 21 Human Rights and the Rule of Law in Contemporary China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647 Wang Zhenmin and Li Zhenghui Select Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671 Francesco Paolo Vertova List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 FM.qxd 20/4/07 2:38 PM Page ix PREFACE Pietro Costa and Danilo Zolo 1. Today the expression “rule of law”is remarkably widespread,not only in political and legal literature but,most notably,in newspapers and political language. This expression is by no means a fresh lexical creation: the formula “rule of law”has in fact a long history,deeply affecting its meanings and contemporary popularity. However, it is unclear whether the popularity of the expression reflects its vitality as a theoretical-critical category or the dying splendour of an obsolete notion. First of all, we need to explain why we assume that our use of the phrase “rule of law” is able to cover the experience of both English- speaking and continental European countries.Of course,we cannot take for granted that expressions such as Rechtsstaat, État de droit, Stato di diritto, and Estado de derecho refer to the same phenomenon. The semantic field of these expressions seems to be the same because of their linguistic kinship but the historical and conceptual specificity of the underlying “national traditions” should not be overlooked. Even if we were inclined to minimize differences within continental Europe,the dra- matic contrast between civil law and common law systems would prevent us from considering “rule of law”and Rechtsstaat (with similar expressions) as simply synonyms. Briefly, it is the thema probandum of our research, and not an axiom, that different expressions belong to a basi- cally consistent universe of meaning. However, we will try to get out of our terminological trouble by using the phrase “rule of law”in general, i.e.not only with reference to the English-speaking world.We will use the term Rechtsstaat(and such similar expressions) only when we refer to the specific experiences of continental Europe. Of course, the problem cannot be solved by resorting to terminological tricks;our purpose is rather to sketch the historical diagram and multiple meanings of a “semantic field”whose relevance in Western political culture is indisputable. Nevertheless,we are interested not only in the past,but also in the present of the “rule of law”. This book is also intended to contribute to an understanding of the notion of the rule of law within contemporary philosophical,political,and legal debate.We do not propose an accurate classification of its meanings and lexical uses:at the very least,such a task ix FM.qxd 20/4/07 2:38 PM Page x x PREFACE would require complementing our analysis with the bulk of current constitutional and administration sciences. Rather, we intend to find out the problematic area referred to in the present debate about the rule of law. 2. The semantic complexity of the notion of “rule of law”is not a recent phenomenon. It has characterized the whole historical span of a notion that cannot be detached from national cultures where it came to being and was actually used. It is a notion connected with political and legal projects and conflicts;it carries an intrinsic plurality of meanings,and is value-laden and ideologically momentous. It is precisely the deep historical rootedness of the rule of law that makes historical reconstruction crucial: we cannot but deal with stratified and diverse meanings that,to different extents,still bear upon our present day. However,while in the framework of our book a historical-semantic analysis is necessary, its role is somewhat preparatory: an inquiry into the past of the rule of law is not for us a goal in itself but the starting point for studying the present value and possible fate of this theoretical formulation. In this perspective, not only does our book include a “historical introduction” (after the general and theoretical introduction that opens the volume),but it devotes its first part to an account of the genesis and historical development of the concept of “rule of law”.While the chapters in this part are different in inspiration,they all express a “critical-conceptual” historical approach,paying attention to the theoretical implications of its subject matter and thus functional to clarifying the present debate. The historical chapters in our book aim to compare the different historical instances of the rule of law,by considering some significant historical and cultural areas.Emilio Santoro reconstructs the meaning of “rule of law”in the British constitutional tradition through a reflection on the work of Albert Venn Dicey,the lawyer who is chiefly responsible for the for- tune of the very expression “rule of law”.Brunella Casalini studies the problem of the “rule of law”in American constitutional development:while the American system is linked to the English model of “common law”, it exhibits remarkably different features,because of a written constitution and a complex system of judicial review of legislation.Gustavo Gozzi portrays the emergence of the rule of law in Germany from the origins of the concept in the early nineteenth century to the “Basic Law”enacted after the Second World War. Giorgio Bongiovanni then focuses on Hans Kelsen, the lawyer who in the early twentieth century made a key contribution tothe concept and practice of judicial review of legislation (helping to draft the 1920 Austrian constitution, too). Finally, the development of the idea in France is covered in the chapter by Alain Laquièze: in France the relationship between national sovereignty and personal rights developed after the Revolution,following an original paradigm of its own.