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Human Rights and Rule of Law: What's the Relationship?

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  • International Law
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  • Law
  • Philosophy

Abstract

Human Rights and Rule of Law: What's the Relationship? LAW REVIEW VOLUME XX 2004 NUMBER x Human Rights and Rule of Law: What’s the Relationship? Randall Peerenboom1 Rule of law in some form may be traced back to Aristotle, and has been championed by Roman jurists, medieval natural law thinkers, Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders, by German philosophers Kant, Hegel, and the nineteenth century advocates of the rechtsstaat, and in this century by such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan Yew.2 Until recently, however, the human rights movement paid relatively little attention to the relationship between rule of law and human rights.3 The Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that “human rights should be protected by the rule of law.”4 Neither the ICCPR nor ICESCR, the other two main pillars of the “international bill of rights,” mentions rule of law.5 Nor do most other early rights treaties, general assembly statements or committee reports or comments appeal to rule of law. In contrast, references to rule of law now regularly appear in general assembly resolutions, committee reports, regional workshop platforms and other human rights instruments.6 1 Professor of Law, UCLA School of Law; [email protected] 2 The Western literature on rule of law is vast. See, e.g., GEOFFREY DE Q. WALKER, THE RULE OF LAW: FOUNDATION OF CONSTITUTIONAL DEMOCRACY (1988); THE RULE OF LAW (Ian Shapiro ed., 1994); FRANZ NEUMANN, THE RULE OF LAW: POLITICAL THEORY AND THE LEGAL SYSTEM, IN MODERN SOCIETY 77 (1986); Fred Dallmayr, Hermeneutics and the Rule of Law, 11 CARDOZO L. REV. 1449 (1990); Richard Fallon, “The Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1 (1997). For a discussion of rule of law in Asian countries, see the essays in ASIAN DI

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