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The rule of law: beyond contestedness

Burgess, P; (2017) The rule of law: beyond contestedness. Jurisprudence , 8 (3) pp. 480-500. 10.1080/20403313.2017.1341203. Green open access

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In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the Rule of Law. By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness.

Type: Article
Title: The rule of law: beyond contestedness
Open access status: An open access version is available from UCL Discovery
DOI: 10.1080/20403313.2017.1341203
Publisher version: https://doi.org/10.1080/20403313.2017.1341203
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
Keywords: Legal theory, Rule of Law, element, canon, compliance, contest
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10075557
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