Before continuing, two qualifications are necessary. First, Professor Strauss`s teaching is constantly challenged by the importance of contextual understanding of legal events and events in particular. Context comes into play and is deeply informative at every turn. As a result, the review of Professor Strauss`s work with respect to the specification of a set of rule of law principles for administrative management is in some tension with its constant emphasis on contextual understanding, including in case studies. Second, having identified this project, but none that Professor Strauss has directly invited in as many terms, it should be clear that each of its shortcomings reflects the present author. In fact, the essay emphasizes in places the constitutional foundations of Professor Strauss`s theses; At other times, he draws on his ideas to define principles beyond those he has adopted. It remains hoped that such a step backwards will provide a broad perspective for recognizing some aspects of Professor Strauss`s contributions while making progress in formulating the broad outlines of our administration`s constitutional requirements. This chapter examines the implications of comparative law thought for global governance, particularly insofar as comparative ideas have contributed to the justification of imperialism. It focuses on the work of Henry Maine and examines how assumptions about identities, understood in their imperial context, shape his legal thinking. While a similar path has led critical legal thinkers to analyze the ways in which international law legitimizes imperialism, the role of comparative law in this picture has been little revealed. The chapter shows that Maine`s comparative thinking is fraught with a tension between promises of inclusion and argumentative strategies of exclusion that legitimize liberal imperialism.
Contemporary representations of the ideal identify the elements or principles that embody or advance these constitutional objectives. 22 22 Fallon, op. cit. cit., note 3, p. 8 (noting that modern theories defend elements of the rule of law for their purposes). Close In this regard, constitutional theories tend towards lists of elements. Professor Fuller, who has initiated many modern reflections on the rule of law, identifies eight principles essential to law: (1) generality, (2) publicity, (3) prospectivity, (4) clarity, (5) consistency, (6) stability, (7) effectiveness, and (8) compliance by public servants. 23 23 See Fuller, op. cit. cit., note 12, pp. 46-90 (defence of these elements of legal virtues).
Close Professor Joseph Raz proposes a report with a more institutional hue. In addition to the virtues of stability, openness and clarity as virtues of law and legislation, which have some related elements in Professor Fuller`s principles, Professor Raz also isolates (1) the independence and impartiality of the judiciary, (2) the accessibility of the courts, and (3) the limited discretion of crime prevention agencies. 24 24 See Raz, op. cit. cit., note 14, pp. 214-18 (referring to these values). For an account of Albert Venn Diey`s conception of the rule of law as a formal and procedural perspective, see Paul P. Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytic Framework, 1997 Pub. L. 467, 470–74. Close In addition to or in place of these values, others have pointed out that law (1) is permitted, 25 25 See, for example, Jeffrey Jowell, The Rule of Law and Its Underlying Values, in The Changing Constitution 3, 17–18 (Jeffrey Jowell & Dawn Oliver eds., 7th ed.
2011) (e-book) (referring to the rule of law whereby public servants act within the scope of their powers). Close (2) coherent or part of a system, 26 26 See, for example, Waldron, The Concept and the Rule of Law, op. cit. cit., note 14, pp. 32-36 (referring to the requirement of systematics or consistency). Close (3) with reasons, 27 27 See, for example, Waldron, Importance of Procedure, note 1, p. 6 above (the rule of law argument requires “evidence-based” action and the “right to present evidence-based legal arguments”). Close and (4) procedurally fair.
28 28 See, generally, for example, Waldron, The Concept and the Rule of Law, supra. note 14 (“[T]he rule of law is violated if it is not given the attention it deserves. procedural issues or when the institutions that are supposed to embody these procedures are undermined or disrupted. »). Closed law presents itself as a system in which norms are intertwined. 119 119 See Waldron, The Concept and the Rule of Law, supra, note 14, p. 33 (Coherence as a dimension of the rule of law). Close What does the law`s claim to consistency require of administrative control? Given the American style of laws, this requirement for consistency falls on both authorities and courts, which require agencies to engage in a synthetic and inclusive form of legal interpretation. This emphasis on the allocation of decisions can therefore be seen as based on a pragmatic principle that it is more likely to decide in accordance with the law if civil servants regard their duties and powers as personal, require their independent evaluation and cannot be replaced by others. This idea can be formulated in relation to the definition of the role of administrative actors. Defining the legal role of these delegated legal authorities to require their independent judgment will reduce the spectrum of role-based compliance in a chain of command.
