Two Types of Formalism of the Rule of Law.
Oxf J Leg Stud
Oxford University Press (OUP)
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Nishigai, K. (2022). Two Types of Formalism of the Rule of Law.. Oxf J Leg Stud https://doi.org/10.1093/ojls/gqab039
The aims of this article are twofold: (i) to propose an explanatory framework, focusing on law-making acts, for accounting for whether the formal requirements of the rule of law are fulfilled; and (ii) to propose two further models within this framework. One model, which I call 'rulebook formalism', pertains to Parliament's law-making acts; another model, which I call 'rights formalism', concerns the courts' law-making acts. This distinction results from the different modality of law, ie the different natures of law-making acts. Drawing on speech act theory, I give a general account of the formal requirements as the success conditions of law-making acts. Then, applying this framework, I discuss the formal requirements for Parliament's law-making acts and the courts' law-making acts respectively.
Dicey, adjudication, common law, jurisprudence, rule of law
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External DOI: https://doi.org/10.1093/ojls/gqab039
This record's URL: https://www.repository.cam.ac.uk/handle/1810/329729
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Licence URL: http://www.rioxx.net/licenses/all-rights-reserved
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