Book contents
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 Classical origins
- 2 Medieval roots
- 3 Liberalism
- 4 Locke, Montesquieu, the Federalist Papers
- 5 Conservatives Warn
- 6 Radical left encourages decline
- 7 Formal theories
- 8 Substantive theories
- 9 Three themes
- 10 International level
- 11 A universal human good?
- Notes
- Bibliography
- Index
8 - Substantive theories
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- 1 Classical origins
- 2 Medieval roots
- 3 Liberalism
- 4 Locke, Montesquieu, the Federalist Papers
- 5 Conservatives Warn
- 6 Radical left encourages decline
- 7 Formal theories
- 8 Substantive theories
- 9 Three themes
- 10 International level
- 11 A universal human good?
- Notes
- Bibliography
- Index
Summary
Individual rights
All substantive versions of the rule of law incorporate the elements of the formal rule of law, then go further, adding on various content specifications. The most common substantive version includes individual rights within the rule of law. Ronald Dworkin made a sophisticated case for this:
I shall call the second conception of the rule of law the “rights” conception. It is in several ways more ambitious than the rule book conception. It assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. 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 of the familiar type, so far as this is practicable. 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 a part of the ideal of law, that the rules in the rule book capture and enforce moral rights.
Dworkin insisted that these rights are not granted by the positive law, but instead form a background for and integral aspect of positive law.
He avoided resort to metaphysics by identifying the source of those rights in the community. The rule book “represents the community's effort to capture moral rights.”
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- Information
- On the Rule of LawHistory, Politics, Theory, pp. 102 - 113Publisher: Cambridge University PressPrint publication year: 2004
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