State theory, criminal justice decision making and the rule of law project

Traditional accounts of the rule of law do not normally question their theoretical conceptions of the state. As the concept itself deals with the idea of equal normative constraint of all members of a polis, it assumes a vision of the state that makes it partially identical to the formal law itself in both its generality and impersonality.
The paper seeks to question the performance of such an assumption by looking at the area of the state that is most sensitive to rule of law demands, namely criminal justice. Modern states show a level of bureaucratic fragmentation that challenges not only the reality but the utility of the impersonal and central image of the state. More importantly, fragmented and selective as it is, modern criminal justice can be hardly linked with the image of the impersonal state.
The paper will show how a revision of the state theoretical assumptions may hold much value for the development of the idea of the rule of law.

The blind-spot(s) of the rule of law thinking in (continental European) criminal law theory

German and continental European criminal law theory is rooted in 19th century rule of law thinking. My presentation will explore, by way of two examples, its blind-spot(s) and how they are to be remedied. With regard to criminalization theory, I will claim that substantive theories fail to address questions of procedural legitimation in democratic polities . With regard to criminal law doctrine, I will shed light on why (and if) justifications (like self-defense or possibly whistle blowing) do not require a positive codification in a certain and parliamentary norm. Put differently, I will explore why the legality principle is not applied to justifications, although actual criminal liability depends on both the realization of the positive elements of an offense, and the non-realization of any justification. My presentation will bring to the fore that this doctrinal state of affairs results from blind-spot(s) of an outdated rule of law thinking.

Hyperlexis and the rule of law

On a familiar view, the rule of law is valuable primarily because it enables people to plan their lives. Although familiar, I argue that planning-centered conceptions are undermined by equally familiar features of modern, institutionally dense administrative states. This is the phenomenon of “hyperlexis”: the sheer quantity of legal rules, regulations and policies, overwhelm law’s subjects. Under conditions of hyperlexis, people are reasonably ignorant of that law, as the costs of acquiring and maintaining accurate legal knowledge rise in the face of law’s superabundance.
Rather than conclude that the rule of law is an empty ideal, I sketch an alternative conception. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.