2429.14 - The Rule of Law

Course number
The Rule of Law
Bachelor degree or equivalent with adequate component of law
The course will invite students to think reflectively about the institution in which they intend to participate as practitioners - what we call "the law" - and more broadly about governance. As a course in theoretical jurisprudence, it may be found more abstract and less ‘lawyerly’ than a typical law course, but an attempt will be made to show its relevance for legal practice. The connection between governance by law and democracy will be considered, and also the connection between governance by law and constitutionalism. Traditionally, the central question of legal theory is "What is law?" The way in which this is typically approached tends to obscure the fact that what is really at stake is the nature of governance: what is it to govern by law and to be governed by law? In jurisprudential literature in the Anglo-Saxon tradition, something called "the rule of law" is discussed; and there is correspondingly an idea of a state in which there the rule of law is in place, usually spoken of (even in English) as the "Rechtsstaat", although this concept reflects more Continental thinking. There are various theories of the rule of law and of the Rechtsstaat; the course looks at established literatures surrounding both, comparing the various theories. This course will explore the subject of the rule of law - what is it to govern by law and to be governed by law - in a non-traditional way.
One of the main readings will be the so-called "Treatise on Law" (Summa Theologiae IaIIæ, QQ. 90-97) of Thomas Aquinas (1225-1274) where, it will be argued, Thomas is largely concerned to articulate a certain idea about governance by law and to contrast it with what he thinks of as the main competing idea. As a source for looking at that competing idea (one that is more familiar in the contemporary context) we will read large parts of The Province of Jurisprudence Determined (1832) by the 19th-century English jurist, John Austin (1790-1859) and will also consider some more recent works, such as The Concept of Law by H. L. A. Hart (1907-1992), and some rather more unexpected sources. Theories on rule of law and the Rechtstaat are most often thought to have emerged in the late 18th century and to reflect Enlightenment ideas about law and governance and attendant changes in political practice, particularly the development of what might be called ‘modern democracy’. The course will be taught in English and students will be asked to use readings in English, although some of them may also be used in other languages.
Learning and teaching approaches
40 hours, of which 36 are organised into a schedule and others include visits and special exercises, partly as intensive teaching with the foremost global expert in the field. The teaching shall be organised as lectures and exercises in addition to student presentations.
Learning outcomes
The students shall: -be introduced to a non-traditional conception of the Rule of Law developed by the teacher and have become familiar with the classical sources upon which it is based; -have compared this new theory to traditional accounts of the Rule of Law and the Rechtsstaat; -have reflected upon the significance of the conception of the Rule of Law for legal practice; -have explored the connection between the Rule of Law and democratic governance; -present and pursue arguments in a balanced manner with an understanding of the differing interests, scopes of interpretation, and developments of the field.
Assessment method
External examiners (with teachers) Written exam that shall be answered in English, French, Danish or Norwegian
Bárður Larsen