By Pietro Costa, Danilo Zolo, E. Santoro
Costa and Zolo proportion the conviction right realizing of the guideline of legislations this day calls for relating a world tricky horizon. it kind of feels unavoidable to enquire into the connection among Europe and the USA, at the one hand, and the ‘rest’ of the area, at the different. during the last centuries this courting built when it comes to conquest and colonisation, at the common view that Western ‘civilisation’ will be adverse as a complete to ‘barbaric’ others. this present day, although, the concept of rule of legislation continues to be rousing a debate that can't be acknowledged to have come to an finish. the reason being very simple: if the origins of the guideline of legislation are in ‘Western’ societies and cultures, and if till lately the West took the lion’s percentage within the debate on our subject material, it continues to be real that this present day different societies and different cultures take an lively and inventive half right into a sustained philosophical-political debate. this can be on no account a only highbrow or educational query: the Arab-Islamic international, India, China, usually are not far-off planets whose orbits by no means crossed the eu and American West. to the contrary, in quite fresh occasions the encounters were shut and tense.
In sum, the publication intends to provide a few appropriate courses for orienting the reader via a political and felony debate the place the guideline of legislations (and the doctrine of ‘human rights’) is an idea either debatable and critical on the nationwide and foreign levels.
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Extra resources for The Rule of Law History, Theory and Criticism (Law and Philosophy Library)
Example text
The clear-cut boundary line between “the public” and “the private”, excludes what in Europe has been called – from Ferguson to Marx and Gramsci – “civil society” (bürgerliche Gesellschaft, società civile) from the scope of politics and law. e. religious beliefs and practices, sexual and family relationships, personal communications and information, the expression of literary and artistic creativity, and so on. It also includes the sphere of contractual autonomy, entrepreneurial initiatives, and patrimonial activities in general.
Despite not being a general theory of justice and not drawing from classic ethical and political metaphysics, the theory of the rule of law entails, as we have seen, some specific options as to the aims of politics and law. The hostility towards arbitrary power and the call for the certainty of law – which have been interpreted by some authors as axiologically adiaphorous85 – themselves entail a clear ethical assumption, in that they favour a rational and foreseeable political order, where law primarily guarantees individuals’ freedom and the security of their transactions (thus giving less importance to “communitarian” topics, such as social justice, solidarity, and equality).
81 Unlike in despotic or totalitarian regimes, under the rule of law political parties (just like trade unions) are not organs of the state’s bureaucracy and cannot make erga omnes binding decisions. In turn, the administrative function is organized on the basis of two sub-functions which, in principle, are performed within distinct institutional settings and with different procedures: on the one hand, the legislative power, primarily conferred upon elective parliaments entitled to enact general and abstract laws; on the other hand, the enforcement of general and abstract laws or, more precisely, the issuing of binding decisions with respect to single actual cases,82 which is essentially performed by organs that are administrative in strict terms.