The Rule of Law and the Separation of Powers

Cover
Half Title
Title Page
Copyright Page
Contents
Acknowledgements
Preface to the Second Series
Introduction
	Defining the Rule of Law
		The Rule of Law and the Circumstances of Politics
		Arbitrary Rule and Rule by Law
	The Rule of Law and Judicial Discretion
		Judging on Principle
		The Separation and Balance of Power: A Republican View
		Democratizing the Judiciary
	Conclusion
	Notes
PART I: DEFINING THE RULE OF LAW
	1 ON THE MORAL STATUS OF THE RULE OF LAW
		I. REASONS RATHER THAN PROBABILITIES
		II. SIMMONDS AND THE RULE OF LAW
			A. Simmonds's First Major Retort: The First Strand
			B. Simmonds's First Major Retort: The Second Strand
			C. A Further Retort
	2 RECONSIDERING THE RULE OF LAW
		I. INTRODUCTION
		II. THE RULE OF LAW AS A CONTESTED CONCEPT
			A. The Instrumental Conception of the Rule of Law, or "How to do Things with Rules"
			B. The Substantive Conception of the Rule of Law, or "How to Foster Liberty and Constrain Leviathan"
			C. A Contested Concept
		III. TRADITIONAL FORMALISM AND THE RULE OF LAW
			A. Senses of Traditional Formalism
				1. Formal connection between rule and particulars
				2. Formal connection between foundations and rules
				3. Formal connection between words and things
				4. Formal realizability and the formalist conception of rules
			B. Traditional Formalism and the Rule of Law
		IV. THE WITTGENSTEINIAN CONCEPTION OF RULES AND ITS CONSEQUENCES (IF ANY)
			A. The Wittgensteinian Social Conception of Rules
			B. Consequences (if any) for the Model of Rules and the Rule of Law
				l. Does Our Conception of Rules Matter?
				2. Compromise Positions on the Model of Rules
				3. On the connection between philosophy and normative social activity: the repercussions of reconceiving rules
		V. TOWARD REINTERPRETATION OF THE RULE OF LAW
			A. Liberal Legalism and Non-Formalist Natural Law
			B. The Rule of Law and Interpretive Community: Toward a Pragmatic View
		VI. CONCLUSION
	3 THE RULE OF LAW AND ITS VIRTUE *
		1. THE BASIC IDEA
		2. SOME PRINCIPLES
		3. THE VALUE OF THE RULE OF LAW
		4. THE RULE OF LAW AND ITS ESSENCE
		5. SOME PITFALLS
	4 Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework
		1. The formal conception of the rule of law
			(a) joseph Raz
			(b) Dicey
			(c) Unger
		2. The substantive conception of the rule of law
			(a) Dworkin
			(b) Sir john Laws
			(c) Allan
		3. A middle way?
			(a) Raz
			(b) Jowell
			4. Conclusion
	5 IS THE RULE OF LAW AN ESSENTIALLY CONTESTED CONCEPT (IN FLORIDA)?
		I. THE FLORIDA DEBACLE
		II. ANALYTIC CONFUSION
		III. A HISTORY OF CONTESTATION
		IV. RULE-OF-LAW ISSUES IN FLORIDA
		V. WHAT DOES "ESSENTIALLY CONTESTED" MEAN?
		VI. THE RULE OF LAW AS AN ESSENTIALLY CONTESTED CONCEPT
		VII. FINALLY, THE STREETS OF FLORIDA
PART II: THE RULE OF LAW AND JUDICIAL DISCRETION
	6 Freedom and the Rule of Law
		Preventing Arbitrary Coercion
		Unavoidable Duties
		Adapting British Traditions Ahroad
		Independent Judges and State Policy
		Dicey on Administrative Law
		A Political Argument
	7 JUDICIAL DISCRETION
	8 THE THIRD THEORY OF LAW
	9 INCOMPLETELY THEORIZED AGREEMENTS
		INTRODUCTION
		I. AGREEMENTS WITHOUT THEORY
			A. In General
			B. How People Converge
			C. Rules and Analogies
		II. JUSTIFICATIONS AND INSTITUTIONS
			A. The Case for Incomplete Theorization
			B. Judges, Theory, and the Rule of Law
			C. Full Particularity?
		Ill. HERCULES AND THEORY
			A. An Ambitious Alternative
			B. Conceptual Ascent?
			C. Legitimacy
		IV. INCOMPLETELY THEORIZED AGREEMENTS OVER TIME
			A. Change
			B. Disagreement
			C. Principle, Politics, Law
	10 Stability and Change in Judicial Decision-Making: INCREMENTALISM OR STARE DECISIS?
		Politicallurisprwlence
		Incrementalism
		Incrementalism and Judicial Decision-Making
PART III: THE SEPARATION OF POWERS
	11 The Political Form of the Constitution: the Separation of Powers, Rights and Representative Democracy
		The Separation of Powers and Rights: a Preliminary Analysis
		From Mixed Government to the Balanced Constitution
		The Separation of Powers and the Modern Republic
		Conclusion
	12 Separation of Powers and Constitutional Government
		The values served by the separation of powers
		The doctrine under attack
		The doctrine defended
		The partial separation theory
		Implications of the separation of powers
		The separation of powers in the United Kingdom
		The separation of powers and constitutional reform
	13 ON SPEAKING SOFTLY AND CARRYING BIG STICKS: NEGLECTED DIMENSIONS OF A REPUBLICATION SEPARATION OF POWERS
		I: The Concentration of Private Power
			A. TOWARDS THE 'PURE DOCTRINE' OF THE SEPARATION OF POWERS
			B. BEYOND THE PURE DOCTRINE
		II: The Concept of the Separation of Powers
			A. ON METHOD
			B. FROM SPARTA TO MADISONIAN SEPARATIONS OF PRIVATE POWERS
		III: Why Big Sticks Rebound
			A.DETERRENCE FAILURE
			B. EMOTION AND DEFIANCE
			C. COGNITIONS OF STIGMA AND PROCEDURAL INJUSTICE
			D. REACTANCE
			E. RATIONAL COUNTER-DETERRENCE
			F. THE DETERRENCE TRAP
		IV: The Strength of Weak Sanctions
			A. OVERDETERMINATION AND SOFT TARGETS
			B. THE SOFT TARGET AT SOLOMONS
			C. THE ACCOUNTABILITY MODEL
			D. GENERALIZED RESTORATIVE JUSTICE AND SOFT TARGETS
		V: Separating Enforcement Targeting from the Actor who Benefits from the Abuse
			A. TARGETING GATEKEEPERS
			C. THE PLETHORA OF THIRD PAR1YTARGETS
			D. BUILDING A THOUSAND GATES TO THE POWER OF CORRUPT OFFICIALS
		VI: Separating Powers Within and Between the Public and Private Sectors
			A. SUMMARY SO FAR
			B. PLURAL PRIVATE SEPARATIONS; PLURAL PUBLIC SEPARATIONS
		VII: How to Separate Powers in the Private Sector
			A. POWERS OF SHAREHOLDERS, DIRECTORS, MANAGERS
			B. AUDIT AND AUDIT OF AUDIT
			C. ENTERING THE CIRCLE WITH OUTSIDE POWER
			E. THE STRATEGIES
		VIII: Separation of Powers and Efficiency
			A. TWO CONCERNS
			B. OVERCOMPLIANCE
			C. FISCAL IRRESPONSIBILI1Y
	14 A REVISIONIST VIEW OF THE SEPARATION OF POWERS
		I. Introduction
		II. The Monopoly Analogue
		III. The Model
			(a) The Legislature
			(b) The Executive
			(c) The Game between Citizens, Parties and the Executive
		IV. Extensions and Generalizations
		V. The Separation of Powers
		VI. Concluding Remarks
		REFERENCES
	15 Institutionalizing the Public Interest: The Defense of Deadlock and Beyond
		THE FEDERALIST DEFENSE OF DEADLOCK
			Making a Constitution and Defending It
			Defining the Public Interest
			Determining and Defending a Separation of Powers
		U.S. Constitutionalism Revisited
		ALTERNATIVE POLITICAL STRUCTURES
			Interest-Based Partitions
			Responsible Party Government
			Legislative Unanimity
			Direct Democracy
		ALTERNATIVE CONCEPTIONS OF THE PUBLIC INTEREST
			Reconceptualizations
			Implementation
		CONCLUSION
		REFERENCES
PART IV: PARLIAMENTARISM AND FEDERALISM
	16 THE NEW SEPARATION OF POWERS
		I. DEMOCRATIC LEGITIMACY
			A. Against Presidentialism
			B. Constrained Parliamentarianism
			C. The One-and-a-Half House Solution
		II. FUNCTIONAL SPECIALIZATION
			A. The Intellectual Challenge
			B. Two Modest Proposals
			C. Warring Separationisms
			D. From Theory to Practice
			E. Separationism and the Rule of Law
		III. FUNDAMENTAL RIGHTS
			A. The Democracy Branch
			B. Safeguarding Fundamental Rights
		IV. THE SHAPE OF THE NEW SEPARATIONISM
	17 Constitutionalism and the Many Faces of Federalism
		I. THE DIVISION OF POWERS BETWEEN THE CENTRAL GOVERNMENT AND THE COMPONENT ENTITIES IN A MULTI-SOVEREIGN CONSTITUTIONAL ORDER
			A. Integrative Federalism
				A.1. The European Community
					(b) The division of powers in practice - ERASMUS as a case study
					(c) The absence of a constitutionally protected nucleus of sovereignty for the Member States
					(d) The relationship between Community and Member State powers
					(e) Executive federalism within the European Community
				A.2. Switzerland
			B. Devolutionary Federalism
			B.l. Belgium
			B.2. Canada
			B.3. Spain
		II. THE JUDICIAL UMPIRING OF INTEGRATIVE AND DEVOLUTIONARY FEDERALISM
			(a) The mechanisms of the judicial umpiring of the federal system
			(b) The relationship between the judiciary and the legislature as to the umpiring of the federal system
Name Index