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This article considers the hostility to legislation—particularly social and economic legislation, legislation that restricts the use of property or interferes with or restructures market process—implicit in some recent discussions of the rule of law. (The hostility to legislation is especially evident in some well-known discussions of what law and the rule of law can contribute to economic development.) Such hostility often involves the deployment of a “substantive” conception of the rule of law, as opposed to the formal/procedural conceptions associated with thinkers like Dicey, the early Hayek, Fuller, and Raz. This essay argues that the substantive conception is corrosively and needlessly cynical about legislation and about the importance of formal/procedural rule-of-law criteria designed to control legislation. It also argues that legislation and the felt need for legislation—especially on social and economic matters—should be accorded more respect than they have been accorded in recent discussions of the rule of law.

Keywords: The view under consideration; democracy; governance; legal instrumentalism; legislation; regulatory state; rule of law

Document Type: Research Article

Publication date: January 1, 2007

More about this publication?
  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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