Cambridge Studies in the Theory of Democracy: Series Number 5: Democracy and the Rule of Law

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to la, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest.

List of contributors; Acknowledgments; Introduction Jose Maria Maravall and Adam Przeworski; Part I: 1. Lineages of the rule of law Stephen Holmes; 2. Power, rules, and compliance Ignacio Sanchez-Cuenca; 3. Obedience and obligation in the Rechtsstaat Michel Troper; 4. A postscript to 'Political foundations of democracy and the rule of law' Barry R. Weingast; 5. Why do political parties obey results of elections? Adam Przeworski; Part II: 6. The majoritarian reading of the 'rule of law' Roberto Gargarella; 7. How can the rule of law rule? Cost imposition through decentralized mechanisms Catalina Smulovitz; 8. Dictatorship and the rule of law: rules and military power in Pinochet's Chile Robert Barros; Part III: 9. Courts as instruments of horizontal accountability: the case of Latin Europe Carlo Guarnieri; 10. Rule of democracy and rule of law John Ferejohn and Pasquale Pasquino; 11. The rule of law as a political weapon Jose Maria Maravall; 12. The question of the rule of law in Michel de Montaigne's Essais Biancamaria Fontana; Author index; Subject index.