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Brigham Young University

Rule of law

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Full-Text Articles in Political Science

Why We Don’T Understand The Rule Of Law Or Explaining The Rule Of Law: A Practice In Search Of A Theory, Noel B. Reynolds Jun 2010

Why We Don’T Understand The Rule Of Law Or Explaining The Rule Of Law: A Practice In Search Of A Theory, Noel B. Reynolds

Faculty Publications

This lecture summarizes the main attempts to formulate an understanding of rule of law among legal theorists and explains why they fail to account for the real experience of law. It also explains key characteristics of law that need to be recognized in an adequate account of the rule of law.


Why We Don't Understand The Rule Of Law, Noel B. Reynolds Oct 2009

Why We Don't Understand The Rule Of Law, Noel B. Reynolds

Faculty Publications

This paper presents an assessment of current theories of law and their continuing failure to account in a convincing way for the rule of law as an ideal that guides and reassures modern democratic societies. It then explores the possibility that emerging understandings of human evolution and brain function may help us understand the process of convention making in a way that could reveal the underlying moral and epistemological context of law and allow us to identify a complete set of standards for the rule of law in human societies.


Legal Theory And The Rule Of Law, Noel B. Reynolds May 2002

Legal Theory And The Rule Of Law, Noel B. Reynolds

Faculty Publications

In "Legal Theory and the Rule of Law" Noel Reynolds maintains that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this ...


The Rule Of Law: A Reassessment For The Twenty-First Century, Noel B. Reynolds Jan 2002

The Rule Of Law: A Reassessment For The Twenty-First Century, Noel B. Reynolds

Faculty Publications

This brief radio address attempts to explain the origins of American liberty and to assess its health at the beginning of the 21st century. The notion of rule of law and the emerging science of constitutionalism enabled America’s founding generation to establish a system of political liberty that continues to stand as a model for all human societies to pursue.


Legal Theory And The Rule Of Law, Noel B. Reynolds Jan 2002

Legal Theory And The Rule Of Law, Noel B. Reynolds

Faculty Publications

This article proposes that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this conventionalist concept of law in the sense that ...


Pareto Optimality And The Rule Of Law, Noel B. Reynolds Aug 1998

Pareto Optimality And The Rule Of Law, Noel B. Reynolds

Faculty Publications

In 1959, James M. Buchanan criticized the collectivist misuse of Pareto optimality by the "new welfare economists" and made a first attempt to extend that individualist concept into the political realm. Over the following three decades he further developed his political application of Pareto’s insight to buttress an essentially economic analysis of political exchange that would justify the processes of constitutional democracy in the same way Pareto efficiency justifies free markets. In this paper I will explain why Buchanan’s particular formulations will not work and propose a more comprehensive solution that accomplishes Buchanan’s announced purpose. I will ...


Thomas Hobbes's "A Discourse Of Laws", Noel B. Reynolds Sep 1994

Thomas Hobbes's "A Discourse Of Laws", Noel B. Reynolds

Faculty Publications

The recent discovery that an anonymously published 1620 essay was an early writing of Thomas Hobbes invites investigation of his early thinking. Hobbes relied on mostly classical sources to advance a basically conventionalist theory of law and to anticipate twentieth century analyses of the principles of rule of law such as that made famous by F. A. Hayek.


Rule Of Law In Legal And Economic Theory, Noel B. Reynolds Apr 1993

Rule Of Law In Legal And Economic Theory, Noel B. Reynolds

Faculty Publications

Legal positivism, the leading version of legal theory, has shown that a concentration on the meanings and logical relations of legal concepts, however much supplemented by intuition, common sense and legal experience, is not adequate to make full sense out of the human experience of law, and the traditional understandings of legal obligation and rule of law in particular. However, modern economic science has advanced a radically individualistic theoretical approach which has propelled economics to the fore as the most successful of the social sciences. And its basic theoretical stance is proving both attractive and adaptable to all the other ...


Conventionalism And Contractarianism, Noel B. Reynolds Nov 1992

Conventionalism And Contractarianism, Noel B. Reynolds

Faculty Publications

In this paper Noel B. Reynolds’s theory of law as convention is compared to the public choice contractarian theory of James M. Buchanan. While there are numerous similarities, major differences emerge. Only conventionalism can produce legal and political authority and norms to guide the use of that authority in maintaining the rule of law. The concept of constructive unanimity is introduced to overcome the ultimate failure of contractarianism to legitimate the authority of law.


The Separation Of Law And Morals, Noel B. Reynolds Nov 1986

The Separation Of Law And Morals, Noel B. Reynolds

Faculty Publications

The classic opposition of legal positivism and natural law theory resurfaces continually and reminds us that we have yet to resolve this key conflict in our ways of understanding the moral authority of law. The strengths and weaknesses of the two theories are reviewed—both have fatal flaws. Conventionalism is proposed as a means of finding internal standards in a man-made system of law. The naturally emerging standards for a conventionalist system of law turn out to be the already familiar principles of the rule of law.


Morality And The Rule Of Law, Noel B. Reynolds May 1986

Morality And The Rule Of Law, Noel B. Reynolds

Faculty Publications

This paper lays out the logic of a conservative view of liberty and morality based on an understanding of human nature as both social and rational on the one hand, and radically individual and self-seeking on the other. Without public virtue, a people cannot govern itself as a free people. But neither virtue nor moral truth can be legislated. The rule of law under constitutionalism is the most successful human arrangement for providing freedom and allowing moral action on the part of individuals.


Liberal Political Theory And The Rule Of Law, Noel B. Reynolds Apr 1986

Liberal Political Theory And The Rule Of Law, Noel B. Reynolds

Faculty Publications

The efforts of liberal political theorists like John Rawls and Ronald Dworkin to identify principles and rights based on moral truth as authoritative bases for law and politics ignore the insight of Hume and other conservative theorists that the moral possibilities of human nature generally are limited and are in turn limiting on what can be accomplished, from a moral point of view, through law and politics.


The Union Of Legal And Political Theory, Noel B. Reynolds Jan 1986

The Union Of Legal And Political Theory, Noel B. Reynolds

Faculty Publications

This paper explores the social science concept of conventions as a way of understanding law that would bridge the enduring gap between natural law and legal positivist legal theories. It further finds in the conventionalist approach a promising account of the rule of law—both in how it may be characterized and in how it can be assessed in particular legal systems.


Constitutionalism And The Rule Of Law, Noel B. Reynolds Jan 1986

Constitutionalism And The Rule Of Law, Noel B. Reynolds

Faculty Publications

Constitutionalism is the practical science of designing and balancing institutions of public power and authority so as to prevent monopolies of power or the emergence of tyranny. In spite of continuing attempts to ground constitutions in moralistic political theories, they are best understood as formalizations of citizenry agreements to manage their affairs under the rule of law following rules formulated by their legislatures and applied by their judges, all of which are to be selected through established procedures. The emergence of rule of law in primitive societies and in early modern European politics is noted, and the chief contributors to ...


The Doctrine Of The Rule Of Law In The Twentieth Century, Noel B. Reynolds Jan 1985

The Doctrine Of The Rule Of Law In The Twentieth Century, Noel B. Reynolds

Faculty Publications

The concept of rule of law has been recognized repeatedly in twentieth century political and philosophical discussion, but with a constantly shifting meaning. In this paper we document most of the serious contributions to thought about rule of law before 1985 as a background to further work on the topic.


George Orwell: Socialist Or Liberal?. Big Brother And The Abuse Of Power., Noel B. Reynolds Jun 1984

George Orwell: Socialist Or Liberal?. Big Brother And The Abuse Of Power., Noel B. Reynolds

Faculty Publications

For although he was too strongly independent in his thinking to accept the Marxist or socialist dogmas of his associates, because they did not seem to square with experience, and though he admired the tough resistance of English character and legal institutions to tyranny, Orwell never did tumble to the understanding of man and government which had shaped each over the centuries. Failing to see the constants in human nature as the key to the political problem, he looked around the world both as he perceived it and his literary fellows portrayed it, and concluded that power lust was the ...


The Challenge Of Socialist Thought, Noel B. Reynolds Sep 1982

The Challenge Of Socialist Thought, Noel B. Reynolds

Faculty Publications

This presentation points to socialists’ mistaken assumptions of a malleable and perfectible human nature as an insuperable reason for the inevitable failure of socialist systems. It also points to socialist and liberal dependence on declarations of human rights as ineffective protections for human freedom—protections which can only be maintained in constitutionalist systems with deeper structural safeguards against tyranny.