Presentation Transcript

1. Tamanaha,Rule of Law Requirements: Cultural Belief in Law Independent Judiciary Legal Profession and Tradition
2. Tamanaha,Rule of Law Not Required, Nor Identical With: Democracy Morality Human Rights
3. Sources of Law Natural Law Customary Law Statutory Law Judicial Precedent (Common Law)
4. Natural Law Religious conception, or at least theistic (“endowed by their Creator”) Pre-exists state, beyond human choice, and universal (“inalienable”) Requires acceptance of premise and poorly defined (“these truths to be self-evident”)
5. Customary Law Specific to a single society – not universal: “the rights of Englishmen” Fills in natural rights due process comes to include jury trial Often relies on invented history “ancient constitution,” Magna Carta Should be understood as tradition, not history
6. Statutory Law Primary attribute is that it is clearly STATED and thus created by the sovereign Applies only within single state May be foundational (Constitution) or ordinary (regular statutes or regulations) Governed by legislative intent Sovereign may state law through its representatives
7. Judicial Precedent (Common Law) Judge-made Applies only within court’s jurisdiction Non-democratic, may be countermajoritarian Dependent on other forms of law, texts Driven by specific, often insoluble conflicts between other stated norms which require innovative solutions Mostly incremental, with few sudden changes