Getting to the Rule of Law: NOMOS L
Getting to the Rule of Law: NOMOS L
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Abstract
The rule of law has been celebrated as “an unqualified human good,” yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an “inner morality of law,” or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power “outside the law” justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks? This book addresses many of the theoretical legal, political, and moral issues raised by such questions and examines practical applications “on the ground” in the United States and around the world. The book examines the ideal of the rule of law, questions when, if ever, executive power “outside the law” is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions.
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Front Matter
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Part I Getting to the Concept of the Rule of Law
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1
The Rule of Law and the Importance of Procedure
Jeremy Waldron
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2
The Limits of Process
Robin West
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3
A Substantive Conception of the Rule of Law: Nonarbitrary Treatment and the Limits of Procedure
Corey Brettschneider
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4
Four Puzzles about the Rule of Law: Why, What, Where? and Who Cares?
Martin Krygier
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1
The Rule of Law and the Importance of Procedure
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Part II Maintaining or Restoring the Rule of Law after September 11, 2001
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5
Separation of Powers and the National Security State
Benjamin A. Kleinerman
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6
Judicial Oversight, Justice, and Executive Discretion Bounded by Law
Curtis A. Bradley
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7
The Instability of “Executive Discretion”
Lionel K. Mcpherson
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8
Constitutional Theory, the Unitary Executive, and the Rule of Law
Sotirios A. Barber andJames E. Fleming
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5
Separation of Powers and the National Security State
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Part III Building the Rule of Law after Military Interventions
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9
Justice on the Ground? International Criminal Courts and Domestic Rule of Law Building in Conflict-Affected Societies
Jane E. Stromseth
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10
In Defense of Imperialism? The Rule of Law and the State-Building Project
Tom Ginsburg
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11
Bystanders, the Rule of Law, and Criminal Trials
Larry May
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12
Might Still Distorts Right: Perils of the Rule of Law Project
Richard W. Miller
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9
Justice on the Ground? International Criminal Courts and Domestic Rule of Law Building in Conflict-Affected Societies
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End Matter
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