Two Threats to the Rule of Law: Legal and Epistemic (Between Technocracy and Populism)
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Joseph Raz wrote that as a ‘negative’ value, the rule of law minimizes the dangers that the law might itself create (Raz 1979, 224). It is true, for example, that conceptions of ‘law and order’ are at odds with the rule of law (Cheesman 2015). In more than one sense, a first threat to the rule of law (RoL) can realistically be of a legal nature. In this scenario the rule by law reigns, and it might still be mistaken as the rule of law. An example of this can be, as we shall see below, ‘populist governments’.
A second scenario where a threat surfaces instead seems to be rather opaque and is not even associated with any actual ‘power’. It relates to the new governance structures on a transnational scale, and the protagonists are epistemic authorities.
The two threats work jointly or through opposite routes, at times unnoticed in the list of RoL concerns.
The first scenario:One general problem with the theoretical definitions of the RoL is our reluctance to ‘distinguish’ its notion...
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