The Rule of Law: Controlling Government

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I. Introduction

A. The Rule of Law: An Overview

i. Overview and Principal Focus

ii. The Rule of Law: Exploring the Concept

-Law for the Purpose of Enforcing the Will of the State (or the will of the ruling elite) or Law for the Purpose of Promoting Liberty and Individual Freedom (protecting against interference with liberty from either individuals or the State)

-Elements of the Rule of Law and a Jurisprudence of Freedom and Human Dignity

B. Modes of Analysis: Scholasticism vs. Scientific Method

i. Sir Francis Bacon (The New Organon), the Newtonian Revolution and Scientific Method

ii. A Word About Epistemology

-Rationalism, Plato, and Descartes (deductive mode)

-Empiricism, Aristotle, and Locke/Montesquieu (inductive mode)

II. Constitutionalism and the Rule of Law: Historic, Jurisprudential, and Comparative Antecedents

A. Historic and Comparative Antecedents in Political Theory: Competing Streams of Thought

i. Empowering the Government: The Traditions of Interventionist Government and Ruthless Power

- Interventionist Government: Plato (The Republic: the “organic” theory of government and rule by “philosopher kings”), Sir Thomas More (The Utopia), Hobbes (The Leviathan), Rousseau ( The Social Contract ), Joseph de Maistre (Considerations on France), Hegel (Elements of the Philosophy of Right) , Marx, Lenin, and Habermas & the Frankfurt School (though contradictory), Heidigger

- Ruthless Pursuit of Power: Machiavelli (The Prince), Nietzsche (“warrior” vs. “herd” morals), von Bernhardi, Lenin, Stalin, Hitler, Mao, Pol Pot, Guzmán & the Shining Path, and al Qaeda (Training Manual)

ii.Empowering the Individual: Toward Human Freedom

- Aristotle (The Politics —with, however, the prevailing errors of his day concerning slavery and second-class status for women), Magna Carta, Locke ( Second Treatise of Civil Government), Sidney (Discourses Concerning Government), Montesquieu (The Spirit of the Laws), Rousseau (The Social Contract), the French Declaration of the Rights of Man, Adam Smith (The Wealth of Nations), Constitution of Massachusetts, Jefferson (U.S. Declaration of Independence), Madison ( U.S. Constitution ), Hamilton, Madison, and Jay ( The Federalist Papers), Olympe de Gouge (Declaration of the Rights of Women), Benjamin Constant (Political Writings), Alexis de Tocqueville (Democracy in America), Mill (On Liberty), Emile Durkheim (founder of sociology, supports democracy, and rejects claim of socialism and communism to be “scientifically based”) Hayek (The Constitution of Liberty) & the Austrian School, Hannah Arendt, George Orwell, the CSCE Copenhagen Document and other modern human rights norms and processes

iii. Recurrent Underpinnings in the Debate

- The Nature of Man: From Plato's “Philosopher King” to Freud's “Realism”

- Anti-modernism (the idealization of man in a state of nature and the charge of “alienation” from modern society; “natural,” primitive needs vs. “artificial,” social needs): Rousseau, Marx (though contradictory), Nietzsche (The Spirit of Modernity), and Claude Lévi-Strauss

- Property and its Effects: Plato, Rousseau, and Marx vs. Aristotle, Smith, Jefferson, Madison, and Hamilton

- Meaning and Language: Plato (refuting the arguments made by Gorgias and Phaedrus in Gorgias and Phaedrus),

Immanuel Kant, Michael Walzer (about the politics of Michel Foucault), Jurgen Habermas (“destruction is renamed deconstruction”), Václav Havel vs. Gorgias, Phaedrus, Friedrich Nietzsche (meaning is relative and all meaning is will to power in The Will to Power ), Jean Baudillard, Michel Foucault (“truth isn't outside power” in Power/Knowledge ) Jacques Derrida (“Force of Law: The ‘Mystical Foundation of Authority'”) Stanley Fish (Doing What Comes Naturally).

- Within the Democratic Tradition—the Appropriate Degree of “Democratic” vs. “Republican” Forms of Government

B. Jurisprudential Antecedents: The Continuing Influence of the Legal Realist Movement

C. The “ New Haven ” Approach: A Methodology for Appraising Alternative Theories of Jurisprudence

On Your Own:

D. A Review of Past and Present Influential Approaches (Marxist Legal Theory, Law and Economics, and Critical Legal Studies)

III. Exploring the Rule of Law

A. Controlling Leviathan: The Rule of Law and the Judicial Decision Process

i. “The Case of the Speluncean Explorers”

ii. The Neutral Principles Debate

iii. Decision Theory: Judicial Decision-making and the Doctrine of Precedence

Guest Participant: James M. Buchanan, Center for the Study of Public Choice, George Mason University

B. Controlling Leviathan: Case Study of Campaign Finance “Reform”: A Study in Unintended Consequences

i. Overview

- Reforms Related to the Modalities of Government Action (taxation and spending, regulation, takings, and creation of civil and criminal law, among other actions)

- Reforms Related to the Modalities of Government Process (constitutional structure, interpretation and amendment; legislative process; executive and regulatory processes; judicial process; and voting processes)

Case Study of Social Security Reform

On your own: Case Studies of the Balanced Budget Amendment, the California Energy Crisis, and Term Limits

Professor Moore's office is located in SL 348. He can be reached by telephone at (434) 924-7441 or by fax at (434) 924-7362.