Critique of Is the Rule of Law an Essentially Contested Concept? by Jeremy Waldron

Is the Rule of Law an Essentially Contested Concept? is a reflection by Jeremy Waldron on the various ways in which the rule of law has been invoked, specifically in the Florida fiasco. Waldron presents the varied opinions of different people on the contestability of the concept of the rule of law and how the understanding of various people of the idea differs. I think Waldron overloads the topic of contestability of the rule of law with too many theoretical concepts.

I think Waldron overloads the contestability of the idea of the rule of law with many theoretical concepts from the various people he quotes in his work concerning the controversy between the rule of law and the power allocated to the judiciary. Two such examples are the opinions of Aristotle and Lawrence Solum. Aristotle suggests that allocate as little personal discretion to judges as possible (Waldron, 2002). Lawrence Solum, on the other hand, says Have faith in the virtue of the judiciary (Waldron, 2002). In his arguments, in addition to the authors he cites, I feel Waldron overloads with theories of contestability of the subject without giving sufficient in-depth look at the core reason as to why the rule of law is emphasized. The rule of law is stressed majorly to hold those in power accountable for their actions. Whether jurists exercise, discretion is little a matter of concern to most as long as they do so within the legal framework in existence and accordance with established public norms. I differ with Waldron on his opinion that a cause for the contest on the concept of the rule of law particularly concerning the announcement of certification of the US presidential elections by Katherine Harris, the secretary of state in Florida, is that the law could be used to suit peoples political interests. In my opinion, the controversy has little to do with the rule of law. The reason is the rule of law serves to elevate the law above political interests. The idea that the law could be used as a tool to benefit some politicians should be attributed to the rule by law which devalues legality and is not a matter that is to be discussed as an issue within the rule of law. In my view, discretion is ineliminable, and the bone of contention is on whether the law accurately frames the extent to which the discretion may be permitted more so in cases where wellbeing and liberty are at stake.

The writers opinion on the contestability of the rule of law about the judiciary is based more on theoretical concepts than real life scenarios. Waldrons view that within the judicial system there has to be either the ultimate law or the ultimate person which is a cause for debate is not as it is within the existing judicial systems in many states. In most instances, a balance that has to be established regarding the extent to which personal discretion is involved in the practice of law by judges. Not all situations will the rule of law be the logical way to arrive at a given verdict. Although it may be argued that with the judiciary, the rule of law could involve personal biases as the judges are human, I believe the focus here ought to have been debating on whether the individual discretion impedes the administration of justice. Waldrons views on the extent to which personal discretion should be permitted and his ideas regarding the same are theoretical.

In his arguments on the controversies about the rule of law, Waldron gives too much attention to theoretical views. I believe he ought to have focused more on the debates regarding the fact that adherence to the rule of law is a guarantee that justice will be achieved for all. Waldron argues that the contestation of the concept lies not in characterizing the achievements already made by it but in responding to the challenge- how can the law be made to rule rather than men. The problem he alleges is an urgent one that needs a solution if any. He alleges that much controversy is in the proposals made as to how this can be resolved. Whether it should be addressed by separating powers, emphasizing on rules or secondary rules, emphasizing on common laws, or the feeling that encircles constitutional norms. I think where much controversy is in whether the men in charge particularly judges have the power to exercise discretion outside the bounds of the existing laws and in the process impede the administration of justice. In conclusion, I believe Waldron overloads the concept of the contestability of the rule of law with too many theoretical ideas rather than the day to day controversies regarding the rule of law. The impact of this is that his views are focused more on the theories about the concept rather than what happens in the real world and the matters that spark a lot of debate regarding the rule of law in the real world.

References

Waldron, J. (2002). Is the Rule of Law an Essentially Contested Concept (In Florida)? Law and Philosophy, 21(2), 137. doi:10.2307/3505128