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Constitutional JusticeA Liberal Theory of the Rule of Law$
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T. R. S. Allan

Print publication date: 2003

Print ISBN-13: 9780199267880

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199267880.001.0001

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First Principles: the Rule of Law and Separation of Powers

First Principles: the Rule of Law and Separation of Powers

(p.31) 2 First Principles: the Rule of Law and Separation of Powers
Constitutional Justice


Oxford University Press

When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This chapter discusses the rule of law and equal justice, legislative authorisation of executive power with emphasis on common law rights and public purposes, and procedural legality citing Lon Fuller's ‘internal morality’ of law.

Keywords:   rule of law, separation of powers, equal justice, common law rights, executive power, legislative authorisation, Lon Fuller, internal morality of law

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