Law, Liberty and the Rule of Law (in a Constitutional Democracy)

Abstract

This chapter considers the relationship between the concepts and conceptions of law and the rule of law. It begins by arguing that the ideal embedded in the concept of the rule of law cannot be logically derived from merely combining the content of the concept rule with the content of the concept law. The rule of law has content that transcends both the atomic concepts of rule and law of which the more complex concept is constructed, as well as the formal assertion that law rules, regardless of its relationship to certain principles, including both negative and positive liberties. In that sense, it reconsiders the relationship not only between the rule of law and concept of freedom by recalling the distinction between two concepts of liberty but also between the rule of law and constitutional democracy. Finally, it concludes by suggesting that the tendency to reduce the democratic principle to the majority rule (or majority principle), i.e. to whatever pleases the majority, as part of the positive liberty, is contrary both to the negative liberty and to the rule of law itself.