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Political ConceptsA Critical Lexicon$
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J. M. Bernstein, Adi Ophir, and Ann Laura Stoler

Print publication date: 2017

Print ISBN-13: 9780823276684

Published to Fordham Scholarship Online: May 2018

DOI: 10.5422/fordham/9780823276684.001.0001

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The Rule of Law

The Rule of Law

(p.167) 10 The Rule of Law
Political Concepts

J. M. Bernstein

Fordham University Press

This chapter analyzes the concept of rule of law. It examines Gustav Radbruch's theory since his argument against the extremes of Nazi law was a pivotal moment in the re-emergence of antipositivist conceptions of legality. It then elaborates Lon L. Fuller's account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” Next, the chapter offers a version of Caesar Beccaria's argument that the formal and procedural elements constituting the rule of law should be conceived as, on the one hand, generating the necessary conditions for relations between the citizen and the state and, on the other hand, among citizens themselves that will be sufficient to free individuals from coercive, force-based relations both among themselves and between themselves and the state.

Keywords:   political concept, rule of law, legal positivism, Gustav Radbruch, Lon L. Fuller, Caesar Beccaria

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