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- Title
Principle, Discretion, and Symbolic Power in Rousseau's Account of Judicial Virtue.
- Authors
Daly, Eoin
- Abstract
Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy-and correspondingly, judicial discretion-may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics-and specifically, his peculiar concept of republican virtue-to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy.
- Subjects
ADMINISTRATIVE discretion (Law); JUDICIAL discretion; JURISPRUDENCE; LEGISLATIVE power; DIFFERENTIATION (Sociology)
- Publication
Ratio Juris, 2016, Vol 29, Issue 2, p223
- ISSN
0952-1917
- Publication type
Article
- DOI
10.1111/raju.12125