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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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The Rule of Law

The Rule of Law

(p.201) 10 The Rule of Law
Philosophical Foundations of Constitutional Law

T. R. S. Allan

Oxford University Press

While the rule of law is sometimes regarded as a shield against the abuse of law, it is better understood as a bulwark against arbitrary power. Law, in its primary sense, is intimately linked to liberty. The rule of law serves the ideal of liberty as independence, preserving a domain of individual freedom which is resistant to interference. It encompasses not only the formal precepts of legality applicable to legislation, but also principles of equality and due process that underpin the ideal of independence. It extends to protection of the basic constitutional rights that impose limits on governmental discretion, which would otherwise threaten that ideal of independence. Implicit in the rule of law is the principle of separation of powers; and absolutist notions of parliamentary sovereignty are repudiated. The rule of law amounts, then, to a theory of legitimate governance, reconciling public authority with individual autonomy and human dignity.

Keywords:   due process, equality, human dignity, legality, liberty as independence, parliamentary sovereignty, separation of powers

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