The Habits of Legality: Criminal Justice and the Rule of Law

By Francis A. Allen | Go to book overview

1
The Intellectual Environment
of Legality

The ideal of a political society in which law constrains and guides the exercise of power by rulers dates from the beginnings of systematic thought in the Western world. The ruleof-law phrase is not of ancient lineage. It is said that it was first popularized in the mid-nineteenth century by Albert Venn Dicey, the Vinerian Professor at Oxford and influential commentator on the English Constitution. 1 But the ideal was expressed in the ancient world in various forms of language. 2 Aristotle in his Politics writes that.

he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. 3

The last sentence has been translated even more strikingly: "Accordingly law is intelligence without appetite."4

Many of the incidents of our political tradition most deeply impressed on our consciousness involved expressions of the rule of law. In Magna Carta the king assures the barons that he will not "proceed with force" against any free man, "except by the lawful judgment of his equals or by the law of the land." 5 In the thirteenth century, Bracton is found asserting that even the king rules sub Deo et lege, "under

-3-

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The Habits of Legality: Criminal Justice and the Rule of Law
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xi
  • 1 - The Intellectual Environment of Legality 3
  • 2 - The Institutional Environment of Legality 27
  • 3 - The Structural Impediments to Legality 57
  • 4 - Summation 94
  • Notes 101
  • Index 149
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