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Constitutionalism: The Rule of Law and the Separation of Powers

  • John Alder
Chapter
Part of the Macmillan Law Masters book series

Abstract

The concepts of the rule of law and the separation of powers are associated with the liberal notion of ‘constitutionalism’. Hunt (1997 at 22) describes the notion of constitutionalism thus: ‘in any democratic system there are certain transcendental values that which enjoy a “constitutional” status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals.’ Fuller (1969) identifies features necessarily associated with the idea of law such as openness, clarity and coherence that give a moral quality to a state. The rule of law is therefore a set of moral and political values. They support democracy but are not necessarily connected with democracy, being important whatever the complexion of the government.

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Further Reading

  1. Allan, T., ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999), 115 Law Quarterly Review, 221.Google Scholar
  2. Allan, T., Law, Liberty and Justice, chapters 2, 3, 5.Google Scholar
  3. Barendt, An Introduction to Constitutional Law, chapter 7.Google Scholar
  4. Barendt (1997) ‘Separation of Powers and Constitutional Government’, Public Law, 599.Google Scholar
  5. Brazier, R. (1989) ‘Government and Law’, Public Law, 64.Google Scholar
  6. Craig, P. (1997) ‘Formal and Substantive Concepts of the Rule of Law: An Analytical Framework’, Public Law, 467.Google Scholar
  7. Dicey, The Law of the Constitution, Part 2.Google Scholar
  8. Harlow and Rawlings, Law and Administration, pp. 37–47.Google Scholar
  9. Jowell and Oliver, The Changing Constitution, chapter 3.Google Scholar
  10. Loughlin, Public Law and Legal Theory, chapters 4, 7, 8.Google Scholar
  11. Mackay (1994) The Administration of Justice ( London, Stevens).Google Scholar
  12. Marshall, Constitutional Theory (1971), chapters V, VI, VII, IX.Google Scholar
  13. Steyn, (1997) ‘The Weakest and Least Dangerous Department of Government’, Public Law, 84.Google Scholar
  14. Sugerman (1983) ‘The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science’, Modern Law Review, 102.Google Scholar
  15. Turpin, British Government and the Constitution, pp. 36–68.Google Scholar
  16. Waldron, The Law, chapters 1 and 2.Google Scholar
  17. Woodhouse, D. (1998) ‘The Office of Lord Chancellor’, Public Law, 617.Google Scholar

Copyright information

© John Alder 1999

Authors and Affiliations

  • John Alder
    • 1
  1. 1.Newcastle Law SchoolUniversity of NewcastleUK

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