April 15, 2013

Constitutional Craftsmanship and the Rule of Law: Organizational Arrangement, Moral Imagination, and the Separation of Powers

  • Shruti Rajagopalan

    Senior Research Fellow
  • Richard Wagner

    Distinguished Senior Fellow, F. A. Hayek Program for Advanced Study in Philosophy, Politics and Economics
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Read the full article at SSRN.com 

Is "rule of law" anything more than a fictional allusion? After all, "law" is an abstract noun, and abstract nouns can't rule. Only people can rule. Rule of law is a fiction, one that has been around since ancient times. Whether, or under what circumstances, rule of law might be an ideal type rather than just a convenient fiction is the topic of this paper. For rule of law to be an ideal type that plausibly describes actual practice, it is necessary for governance to follow polycentric principles. This paper explores whether there are constitutional arrangements under which it could reasonably be claimed that governance reflects a deep level operation of a rule of law despite the surface level recognition rulership can be exercised only by people.