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Jurisprudence

Rule of law

Law Faculty Articles and Essays

Publication Year

Articles 1 - 2 of 2

Full-Text Articles in Law

Natural Law And The Limits To Judicial Review, David F. Forte Jan 1996

Natural Law And The Limits To Judicial Review, David F. Forte

Law Faculty Articles and Essays

The very premise of judicial review in America is rooted in the structure of natural law. Judges have no authority to make any kind of law. They can only enforce and apply authoritatively passed positive law. But if the positive law has not been enacted, either in form or substance, without proper authority, then if the judge should enforce such a law, he would in fact be making new positive law, and would be acting outside of his authority.


The Rule Of Law And The Rule Of Laws, David F. Forte Jan 1990

The Rule Of Law And The Rule Of Laws, David F. Forte

Law Faculty Articles and Essays

The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller (which John Finnis accepts), but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of …