[Vnbiz] 'rule of law' and/or 'rule by law'

[Craig Stevenson]

Hoanh,

Frankly, didn't read them, just looked for a couple of comprehensive
writings (from Google) and posted for those interested. I have been swamped
with  learning a new job and recovering from jet lag from a compacted
training abroad.  No time for reading anything longer than a page for fun.
Anyway I thought, was it Shane's posting, the original reply, to be great.

Craig

On 10/30/06, Tran Dinh Hoanh <tdhoanh at gmail.com> wrote:
>
>
> [Vietnam Business Forum]
>
>
>
> Dear anh Craig and CACC,
>
> Thanks for good postings, anh Craig.
>
> I just want to make a clarification on the message below.  This
> message is obviously written by a person with a religious perspective.
> Note that he writes: "Rule of law is an intrinsically moral notion.
> Indeed, I don't see how one can have a consistent theory of rule of
> law without appealing either to natural law theory or to some higher
> rule by law ( e.g., divine command theory)".
>
> Without arguing that he is right or wrong, I would like to point out
> that he uses the word "rule of law" to indicate "rule of natural law
> and of its maker, i.e., God."  This is an abusive use of language.
> Basically he takes the universally-respected phrase "rule of law" and
> gives it a new, religious meaning.
>
> The original (and main stream) concept "Rule of law" is something
> completely different.  It only means everyone is ruled by the law, is
> under the law, and no one is above the law.
>
> Don't let this kind of abusive use of language confuse you.
>
> (As you know, I don't mind to be religious myself.  But when religious
> people become abusive, they annoy me.  God and Jesus and the Buddha
> are not abusive).
>
> Again, outside of this kind of religious vs. secular philosophical
> dispute, "rule of law" and "rule by law" are very much the same, and
> they mean "Everyone has to follow the law."
>
> Have a great day!
>
> Hoanh
> ___________
>
> On 10/30/06, Craig Stevenson <cstevenson2000 at gmail.com> wrote:
> >
> > [Vietnam Business Forum]
> >
> >
> >
> >
> >
> > Here's a poli philo perspective
> > (not my writing to follow)
> > "Rule of Law vs. Rule by Law
> >
> >
> > An important distinction needs to be made between rule of law and rule
> by
> > law.
> >
> > (1) Rule of law is an intrinsically moral notion. Indeed, I don't see
> how
> > one can have a consistent theory of rule of law without appealing either
> to
> > natural law theory or to some higher rule by law ( e.g., divine command
> > theory).
> >
> > (2) Rule by law is very different, despite some superficial
> similarities.
> > Rule by law is prudential: one rules by law (properly speaking) not
> because
> > the law is higher than oneself but because it is convenient to do so and
> > inconvenient not to do so. In rule of law, the law is something the
> > government serves; in rule by law, the government uses law as the most
> > convenient way to govern.
> >
> > (3) The two chief arguments for rule by law rather than rule of law are
> > exactly the same ones that are always used against natural law theory:
> >
> > (a) disagreement and uncertainty in moral judgments;
> > (b) the claim that rule of law is seminal anarchy.
> >
> > (4) The chief arguments against rule by law and for rule of law are
> exactly
> > the same ones that are always used against the opponents of natural law
> > theory:
> >
> > (a) the question of how one can have authority without any moral basis;
> > (b) the claim that rule by law is seminal despotism.
> >
> > (5) Rule by law can be either ad hoc (which is genuine despotism) or
> > principled. Principled rule by law theory shares with rule of law theory
> the
> > arguments that a stable, generally recognized law is needed in order to
> > maintain generality, impersonality, and effectiveness of government.
> Thus
> > principled rule by law theory allows for what Fuller has called "the
> > internal morality of law" to the extent that this is prudentially
> > justifiable as conducive to the ends of government. (There is an
> interesting
> > paper by Kenneth Winston on this subject in the context of Chinese
> Legalism
> > at SSRN; much of what I say in this post is influenced by Winston.)
> >
> > (6) Much of what we call rule of law today is really rule by law; a very
> > serious equivocation given that they tend in entirely different
> directions."
> >
> >
> >
> >
> >
> >
> > On 10/29/06, Craig Stevenson <cstevenson2000 at gmail.com> wrote:
> > >
> > > Not a lawyer, but have studied a fair amount of political philosophy
> and I
> > believe it is a wonderful articulation of the two phrases.  I will look
> for
> > a "definition" if you will.
> > >
> > > Craig
> --
> Tran Dinh Hoanh, LLB, JD
> Attorney of Law
> Washington DC
> _______________________________________________
> To subscribe/unsubscribe, please contact admins at
> vnbizadmin at vietlinks.net
> Info at http://mail.saigon.com/mailman/listinfo/vnbiz
> Archive at http://groups.yahoo.com/group/vnbiz
> Or http://groups-beta.google.com/group/VNBIZforum/
> Or http://mail.saigon.com/pipermail/vnbiz
> Or http://www.tin.le.org/archive
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.saigon.com/pipermail/vnbiz/attachments/20061031/c9dafa02/attachment-0001.html