Law, Democracy, and the Rule of Law

Abstract

Abstract This chapter faces the question of law's ‘mode of existence’, by asking what law does—and how. To accomplish this, the chapter explains the concept of the ‘sources of law’ and the nature of legal reasoning, notably the attribution of legal effect when specified legal conditions apply. The crucial distinction between primary (regulative) and secondary (constitutive) rules is discussed, thus demonstrating that law is not a ‘bag of rules’ but a dynamic architecture of legal norms (rules and principles). Finally, we address the question of the relationship between law, democracy, and the rule of law. To qualify as law, a normative framework must aim to sustain, develop, and balance certain values—even though they may be incompatible in concrete cases. These constitutive values are defined as legal certainty, justice, and instrumentality.