The Rule of Law and the Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law
![handle is hein.journals/macq4 and id is 139 raw text is: Macquarie Law Journal (2004) Vol 4
THE RULE OF LAW AND THE TINKERBELL EFFECT: THEORETICAL
CONSIDERATIONS, CRITICISMS AND JUSTIFICATIONS FOR THE RULE
OF LAW
CAMERON STEWART*
'If you believe', he shouted to them, 'clap your hands; don't let Tink die.'
Some clapped.
Some didn't.
A few little beasts hissed.
The clapping stopped suddenly ....but already Tink was saved... (Peter Pan by JM
Barrie (first published in 1911, by Hodder & Stoughton)).
I INTRODUCTION
Peter Pan was able to save Tinkerbell from poisoning, using the healing power of
imagination. According to the laws of Barrie's tale, fairies cannot exist unless we
believe in them. Even if we believe in them at first, but come to doubt them later,
they will die.
The rule of law concept is much like Tinkerbell. In the words of Neil MacCormick,
'[t]he very idea of the rule of law or Rechtsstaat is that of a state in which
determinate and pre-determined rules govern and restrict the exercise of power and
regulate the affairs of citizens. Primarily, the rule of law principle requires that the
legal system comply with minimum standards of certainty, generality and equality.
The rule of law is a fundamental ideological principle of modem Western
democracies, and as such, we are often asked to believe in it with unquestioning
acceptance, even though Western states often honour the principle in the breach.
Unfortunately, the modern history of Western democracies has shown that the rule
of law was not able to prevent some of the worst behaviour of states or individuals
within states. It is not surprising that critics of modern Western democracies have
taken the rule of law as a key target. For Marxists it is a legitimating ideology
Senior Lecturer in Law, Macquarie University. My thanks to Chris Birch, Andrew Lynch,
Margaret Kelly, Tom Campbell and Bruce Kercher for their helpful discussions with me on
these topics over the last few years. I am also extremely grateful to the Editor. Any errors and
misdescriptions are mine.
Neil MacCormick, Legal Reasoning and Legal Theory (1995) xi.](ViewImageLocal?handle=hein.journals/macq4&div=10&collection=&method=preview&ext=.png&size=3)
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The Rule of Law and the Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law
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