Aristotle on Constitutionalism and the Rule of Law

Frank, Jill

doi:10.2202/1565-3404.1142

Cited by 7 publications

(1 citation statement)

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“…When studying the ‘rule of law’ topos one should appreciate that the concept manifests a long and varied lineage. Its use extends to Ancient Greece, and many place emphasis on Aristotle’s passage that ‘law should rule rather than any single one of the citizens’ (1972: 1287a, 1–7); notwithstanding that Aristotle did make the caveat that the rule of (good) law was dependent upon the rule of (good) men (Frank, 2007). Further, an extended line of thinkers and traditions, inclusive of Aristotle, the Stuart Parliamentarians (Skinner, 2003: 12–15), Rousseau, Montesquieu, the American founders, the advocates of the rechtstaat and the more contemporary works of Friedrich Hayek, John Rawls, Lon Fuller and Theodore Lowi, have all grappled with this general imperative that ‘rule be by law’ (Flathman, 1994: 302–303).…”

Section: ‘Global Law’ and Legal Techniques Of Powermentioning

confidence: 99%

‘Global law’ and governmentality: Reconceptualizing the ‘rule of law’ as rule ‘through’ law

Rajkovic

2010

European Journal of International Relations

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This article challenges the optimism common to liberal IR and IL scholarship on the 'rule of law' in global governance. It argues that the concept of the 'rule of law' is often employed with sparse inquiry into the politics of its practical meaning. Specifically, the article focuses on liberal research that advocates the emergence of a 'global' judiciary, and the claim that judicial governance will marginalize state power and authority. Rather than employ a zero-sum conception of power, this article regards a prospective global legal system less as a constraint on state power and more as a rationale for rule 'through' law by vested actors. To make the argument, Michel Foucault's concept of 'governmentality' is combined with Barnett and Duvall's notion of 'productive power' to denote how legal techniques of power are integral to the construction of social 'truth' and consequently the governance of conduct. This is further associated with Koskenniemi's critical scholarship on the power of law's perceived objectivity and universality. In this vein, the article questions how liberal scholars use the American judicial model (the Marbury ideal) to claim that an institutionalization of 'global' judicial authority can deliver the rule of 'no one' in global governance. A governmentality perspective is then applied which suggests that the lack of supreme constitutional rules at the global level makes judicial governance less a check than a means to propagate normative standards conducive to dominant state power.

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Section: ‘Global Law’ and Legal Techniques Of Powermentioning

confidence: 99%