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Even if we believe in them at first, but come to doubt them later, they will die. The rule of law concept is much like Tinkerbell. The rule of law is a fundamental ideological principle of modern Western democracies, and as such, we are often asked to believe in it with unquestioning acceptance, even though Western states often honour the principle in the breach.

Unfortunately, the modern history of Western democracies has shown that the rule of law was not able to prevent some of the worst behaviour of states or individuals within states.

It is not surprising that critics of modern Western democracies have taken the rule of law as a key target.

For Marxists it is a legitimating ideology which disguises the class-based hegemonising function of law. For critical legal studies movements, the rule of law paints over the fundamental contradictions of modern life, including the tension between the need to be free and the desire to live in community.

Perhaps the most devastating criticism of the rule of law is the sociological criticism that it has become politically and socially outdated.

The essence of the criticism is that the modern rule of law doctrine is the creature of the nineteenth century, one based on a laissez faire economy, run by the market of individuals and where government was necessary only for the tasks of protection and the provision of services which could not be provided by the market.

That society has disappeared, although its ghost chains may occasionally be rattled by conservatives. The conclusion then reached is that the rule of law ideal has lost both its descriptive and prescriptive force.

It does not correctly represent the reality of the post-modern state nor does it provide a model for assessing its performance.

This article deals at length with these criticisms and attempts to prove that the rule of law concept remains an essential element of modern society, even in the face of these radical changes in the function of modern law.

In effect, I will try to persuade you to clap for the rule of law, because if we stop believing in it, the ideals that it represents will cease to exist and the practical effects would be disastrous.

The article is set out as follows. Part II begins with a survey of the rule of law concept and the basic themes of liberal philosophy that run through it.

The primary importance of the rule of law in the liberal tradition is the emphasis it places on certainty, generality and equality in the legal system, and on an underlying idea of reciprocity between the state and citizen.

Part III examines how this liberal concept took juridical form in the classic formulation of British constitutionalism set out by A V Dicey. This is a well-trodden path but in doing this I will briefly describe the current attempts to employ the Diceyan rule of law as the basis of common law constitutionalism.

Common law constitutionalism states that the rule of law, and not parliamentary sovereignty, is the supreme authority of law, placing real limits on the exercise of legislative and executive power.

The difficulty with these attempts is that the rule of law unlike parliamentary sovereignty is not easily formulated as a juristic principle.

This article will not deal in depth with these issues: it has a different purpose. The purpose of this article is to show that even if we take the efforts to raise the juristic strength of the rule of law seriously, the rule of law remains vulnerable to a number of criticisms from outside liberal philosophy.

Part IV examines these criticisms. They come from a variety of sources but all aim at dismantling the key claims that the liberal rule of law makes in relation to providing certainty, generality and equality.

I will concentrate on criticisms drawn primarily from the Left, namely from Marxism, feminism and critical legal studies.

I will also summarise the primarily sociological criticism of the rule of law which states that it is an outmoded principle that no longer reflects the reality of modern legal systems.

In Part V I attempt to justify a continued adherence to the rule of law. I defend the rule of law concept by reference to its ethical and normative ideological function, and argue that the rule of law necessarily retains a relationship of reciprocity between the state and the subject that has a proven value.

I conclude with some observations on future directions for the rule of law and a possible program of reformulation of the principle.

From these two features it is possible to gauge some basic principles that are central to the concept. One of these is the value of certainty , which requires that all law should be prospective, open, clear and stable so as to maximise the autonomy of the individual.

Traditionally this has been seen to encompass a formal conception of equality, meaning that everyone will be treated the same regardless of the differences between them.

It requires that all have the same negative liberties freedoms from interference. It also requires that these liberties should be protected in the same manner.

However, the rule of law has also been said to encompass a wider notion of equality, such as equality of concern and respect.

In defining the rule of law, liberals have often relied on two different conceptions of law, one procedural and rule-based, the other more substantive and rights-based.

They are: that law is sufficiently general there must be rules ; it is publicly promulgated; prospective; clear and intelligible; it is free of contradictions; sufficiently constant to enable people to order their relations; not impossible to obey; and it must be administered in a way sufficiently congruent with the wording of its written rules so that people can abide by them.

These desiderata meant for Fuller that there was a minimum set of standards that law had to follow and that if the proposed law substantially failed to satisfy the standards it would lose its status as a law.

Their claim is that a system of racial segregation, sexual inequality and religious intolerance is compatible with his conception of law as the desiderata say nothing about the actual content of the legal rules.

In contrast, rights-based theories are more concerned with the recognition and formulation of the rule of law as a form of political morality.

According to Ronald Dworkin, a rights-based conception of the rule of law:. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions.

The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.

According to Dworkin:. The most abstract and fundamental point of legal practice is to guide and constrain power of government Whilst it is possible for liberals to disagree over the form of their rule of law definitions, behind both styles of rule of law concept is the value of reciprocity between the law-giver and the law-maker.

Reciprocity is the foundation of both rule-based and rights-based concepts and, as will be argued below, the value of reciprocity makes it possible for the rule of law to work as a normative value.

Thus when speaking of the rule of law, Fuller commented:. Surely the very essence of the Rule of Law is that in acting upon the citizen by putting him in jail, for example, or declaring invalid a deed under which he claims title to property a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties.

If the Rule of Law does not mean this, it means nothing. Applying rules faithfully implies, in turn, that rules will take the form of general declarations Associative obligations are said to exist in communities that are typically fraternal such as families.

The obligations arise when four conditions are met. The members must regard the group as having obligations that hold uniquely to the group; they must accept that these duties bind member to member; they must perceive that these responsibilities are linked to a concern for the wellbeing of each of the members; and the members must believe that the practices of the group show equal concern and respect for each of them.

The underlying value of associative obligations is reciprocity. The principle of reciprocity is therefore integral to the rule of law concept in both rule-book theories and in rights-based theories.

Whether the analysis of the rule of law is limited to the consideration of its procedural aspects or is widened to include the consideration of political morality, reciprocity has a part to play.

Below I will show how even non-liberal analysis of the rule of law has revealed the importance of reciprocity to the rule of law.

But now I will proceed to examine the juridical principle of the rule of law. It is his vision of the rule of law that was accepted in English and Australian legal discourse as authoritative and it remains so today.

The first is that the regular law is supreme over arbitrary and discretionary powers. Finally, the rule of law and the rights it protects are the products of the traditions and customs of the ordinary law, not a written constitutional document.

The primary influence is nineteenth century laissez faire individualism. The rule of the common law marked out the sphere of private autonomy that was free of governmental interference.

Dicey attempted to overcome their logical antagonism in two ways. The first was that even though Parliament was omnicompetent, it was the task of judges to determine the meaning of law.

This meant that statutes could be interpreted so as to not clash with the traditions of the common law. English parliamentarians would never dream of creating legislation that the people would find abhorrent, and even if they did, the voting public would soon remove them from power.

As Sir Owen Dixon said:. If the qualification be law these are matters upon which the validity of a purported enactment may depend and they may accordingly be examinable in the courts.

Similarly, Dicey drastically misconceived the nature of the developing democracy and he failed to predict the extent to which governmental power would expand into the private sphere.

The cumulative effect of the defects is that the rule of law runs a very slow second to parliamentary sovereignty. That state has now disappeared.

Winterton has stated that:. Parliamentary sovereignty reduces the rule of law to a constitutional posture rather than a hard-edged legal principle.

However, in the last ten years this version of parliamentary sovereignty has undergone serious challenge.

Other recent attempts have focused on setting the rule of law as the foundational principle of judicial review, which, when breached, would allow judges to strike down legislative and administrative action.

For example, T R S Allan is prominent amongst jurists for his attempt to have the rule of law principle seen as a constitutional doctrine of equal strength to parliamentary supremacy.

More recently, Allan has stated that:. The distinction which I formerly drew so sharply, between the interpretation of statutes, on the one hand, and a refusal to apply them in cases of serious injustice, on the other, was probably mistaken.

If political morality justifies a restrictive interpretation of legislation infringing basic rights, I believe it must also justify its disapplication in cases of sufficient gravity.

The limits on the power of a democratic majority to achieve its legislative will are ultimately to be found in the common law; and the common law is too subtle to tolerate the absurdity - even the constitutional contradiction - of wholly unlimited legislative power.

Allan argues that:. For example, in Kartinyeri v The Commonwealth [55] Gummow and Hayne JJ stated the occasion had yet to arise where the High Court could examine the role of the rule of law in the Australian Constitution.

Only Kirby J commented on fundamental norms, his comment being directed to the use of international human rights norms in statutory interpretation, not with fundamental common law rights.

Similarly, the High Court has refused to invalidate state based legislation for the confiscation of property, in cases where the State seeks to compulsorily acquire property without just terms, [58] and where the property is acquired on grounds that it belonged to a person charged with a serious offence.

I will now turn to a critical examination of those liberal underpinnings. Summers made it a habit to smash cream pies in the face of nearly every parent on the show, because children delight in the subjugation of their elders, but one mother decided to sue Nickelodeon, claiming she was no longer able to have sex as a result of Summers' wanton pie-facing.

Warner Bros. Bob Saget began his career as a stand-up comedian slinging excruciatingly filthy dick jokes, so of course he was the natural choice to star as the Christ-like widower Danny Tanner in the classic family sitcom Full House.

He had to put all the asshole-blasting boner jokes into a bag while in character, but that didn't keep the real Saget from bursting to the surface like the shark from Jaws whenever the cameras stopped rolling.

In one incident, Saget and his co-stars, Dave Coulier and John Stamos, were waiting for their scenes to start. Understandably bored, because they were filming Full fucking House , they snuck into the prop room, grabbed several cans of whipped cream that were meant to be used for a birthday scene, and tried to get high off the nitrous oxide.

We'll be honest -- Full House would have been way better if all of the adults were perpetually higher than orbiting telescopes.

Saget also had a habit of drawing penises all over his scripts during meetings with the writers and producers. He was so full of dick jokes he simply could not keep them bottled up inside for an entire meeting and exploded like a balloon full of spiders.

Saget would often rehearse with a 4-foot rubber doll that served as a stand-in for his TV daughter Michelle, because some liberal do-gooder passed a law that says you can only force children to work a certain number of hours per day unless they're working on a farm , at which point it's open season.

Saget being Saget, it was only a matter of time before he decided to incorporate his inflatable rehearsal buddy into a hilarious improv comedy routine, which is another way of saying "he pretended to fuck that doll.

Ironically, the resulting videotape would have been a perfect submission to America's Funniest Home Videos. Harlan Ellison is equally legendary for his tremendous contribution to science fiction and his tremendous contribution to the field of being an arrogant, litigious jackass.

This is a man who once mailed bricks and a dead gopher to his publishing house over a contractual dispute, which isn't burning a bridge so much as chopping the bridge's legs off and making it watch as you throw its parents into a volcano.

Pip R. In , Ellison was fresh off a job writing for Star Trek , and consequently was also fresh off a bitter feud with Star Trek creator Gene Roddenberry.

Despite everything we just told you, Ellison was inexplicably hired as a writer by Walt Disney Studios, possibly because the recently frozen head of Walt Disney had heard through the grapevine that Ellison was a man who was so goddamned scary, Death wouldn't come within five miles of wherever he happened to be at any given moment.

On Ellison's very first day he was greeted with a parking spot with his name freshly stenciled on it, a two-room office, a private bathroom, and his own secretary.

His coworkers were a staff of writers he knew and respected. It was a dream job. So naturally, Ellison wound up burning it all to the ground almost immediately.

Katie Rommel-Esham. Ellison soon joined his new colleagues for lunch, because no one actually works on their first day at a big company. Wanting to make an impression as a fun, irreverent guy, and blessed with an impeccable Mickey Mouse impersonation, he proposed a hardcore Disney porno that "rips the lid off the goody two-shoes hypocrisy that lies sweltering beneath the surface of G-rated true-life adventures.

We're not going to go into too much detail, but we will say that Minnie's "quivering labia" were referenced, and that a scene involving Tinker Bell using her wings to "flap off" a giant penis was proposed in fairness, the penis would be normal-sized, because Tink is a tiny magic fairy.

Mickey would pop the buttons off of his iconic red pants and torpedo all seven dwarfs, while Pluto, the bumbling film producer, would struggle to keep everything running smoothly with comic ineptness.

Walt Disney. Unfortunately for Ellison, Walt's nephew Roy was having lunch with a bunch of other studio executives directly behind him.

Either Ellison's new co-workers had also failed to notice all of their bosses dining in the same room, or had decided that Ellison's pitch deserved to be heard by those with the power to green-light it into production.

Whatever the case, Ellison returned to his office to find his secretary gone, a pink slip on his desk, and his name removed from his parking spot, because sometimes life has the comedic timing of a sitcom.

Ellison worked at Walt Disney Studios for a grand total of four hours , because, in his words, "nobody fucks with The Mouse. Rugrats was a cartoon about babies and their overactive baby imaginations, set to a score by one of the founding members of Devo.

While the on-screen baby shenanigans were entirely wholesome, the cast and crew were anything but. In one incident, a writer and voice actor pranked Arlene Klasky, one of the production company bigwigs, with a fake script.

In it, the main baby protagonist Tommy Pickles hears a mysterious squeaking noise coming from his parents' bedroom. Curious, he crawls up the steps to investigate.

The noise gets louder and faster as he gets closer, until finally Tommy opens the door to discover his parents jackhammering a baby brother into existence.

Klasky was Not to be outdone, the animators kept themselves busy in their downtime by drawing sexually explicit depictions of the show's characters long before anyone had heard of Rule Existing user?

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The third alternative reading of ideology within Marxism Brazzers girls lena paul that of the false consciousness. I agree to the Terms of Service. In this Part, I will Emma starr orgasm the criticisms that have been levelled at legal systems relying on the liberal rule of law. Sural Argonus. The campy, absurdist pop art masterpiece was a huge hit with kids who took it at face value as the unfiltered adventures of Sexy mom and son porn of their favorite superheroes, and adults who praised African tribal porn show Elsa jean bratty sis its deadpan silliness. Friedmann [] has summarised some of these as:. Share this post Link to post.