China's Long March toward Rule of Law

By Randall Peerenboom | Go to book overview
Save to active project

See Tamanaha (1997).
Malinowski (1926: 66).
See Rheinstein (1954: 13).
Bohannan (1967: 47). Hart also maintains that officials must effectively accept the rule of recognition and its rules of change and adjudication as common public standards of official behavior for the legal system to function, though the test of a valid law is its pedigree. Hart (1961: 113).
See Goldstein (2001).
For the concept of rule of recognition, see Hart (1961).
See Goldstein (2001).
Of course, given the wide diversity of legal systems and that even a thin theory implicates numerous normative and culture-specific issues, the incompletely theorized nature of rule-of-law theories is both an advantage and disadvantage. On the positive side, it may allow people who disagree about certain theoretical issues to agree on more specific issues that arise in practice. For instance, one may disagree about what structural arrangements best ensure judicial independence and yet still agree that the current lack of judicial independence is a problem. For a discussion of the virtues of incompletely theorized arguments, see Sunstein (1996: 3–7).
Munzer (1982).
Westen (1982).
When particular laws may be set aside to secure other values is a difficult theoretical issue. As noted below, one of the criticisms of rule of law is that it tends to degenerate into rule fetishism. Rule of law promotes obedience to laws, whether such laws are good or bad, appropriate in the particular context or not. While most people would allow that in some cases laws should give way to higher values see David (1984) for a discussion of the way different legal systems attempt to incorporate or appeal to higher values they may disagree about the particular instances when laws should give way, who has the right to decide, the standards for making the decision, whether the discretion ceded the decision-maker to follow the rules is subject to review and if so by whom, and so forth.

Just as individuals may differ over such issues, so may societies given their different ethical traditions. Many of the most dominant Western ethical traditions have tended to focus on establishing the proper rules to guide interpersonal interactions, whether the Ten Commandments, the Kantian Categorical Imperative, the utilitarian principle of maximization of the good, or Rawls' two principles of justice (though there are exceptions of course, including Aristotelian ethics, pragmatism, and situational ethics). Moreover, such rules tend to be abstract and universally applicable to all contexts. Accordingly, those who have been influenced by such traditions may be more willing than those influenced by other traditions to accept a narrowly circumscribed rule of law that sacrifices equity and particularized justice for the virtues of generality, equality, impartiality, and certainty that result from limiting the discretion of the


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
China's Long March toward Rule of Law


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 673

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?