Jeremy Waldron on The Rule of Law in Public Law (Waldron論公法中的法治理念)

Jeremy Waldron在SSRN上面發表了一篇文章:The Rule of Law in Public Law,這一篇是從西方傳統上對於法治在公法上的討論是對於政府權力的節制,而在私法上卻使不上力的現象開始討論。很有意思,推薦閱讀!!另外一篇也很推薦,Public Rule of Law(內容部分重疊,但很多有意思的想法!)!!

在第一篇,裡面其中最有趣的一段論述之一,或許是下面這一段:「Does all this amount to anything more than rule by law? I mentioned earlier that some commentators draw a distinction between the rule of law and rule by law. The one is supposed to lift law above politics. The other- rule by law- involves the instrumental use of legal forms and procedures as tools of political power. On this account, rule by law is a version of rule by men since it is comfortable with the highest authority being wholly unconstrained in the measures it lays down.

My own view is that this distinction between rule of law and rule by law is overblown, involving as it does a mythic quest for forms of law which come into existence and operate without any human agency. 」

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