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When Governments Break the LawThe Rule of Law and the Prosecution of the Bush Administration$
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Austin Sarat and Nasser Hussain

Print publication date: 2010

Print ISBN-13: 9780814741399

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814741399.001.0001

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Democracy as the Rule of Law

Democracy as the Rule of Law

(p.153) 5 Democracy as the Rule of Law
When Governments Break the Law

Paul Horwitz

NYU Press

This chapter explores the implications of the question of “prosecuting Bush,” or any of the members of his administration, for democracy and the rule of law. It first considers the distinction between the rule of law as an ideal and the implementation of the rule of law, along with the complicated and contextual nature of the relationship between democracy and the rule of law. It then discusses the value and viability of particular implementing mechanisms for the rule of law in relation to transitional justice, with particular emphasis on the amount of prior social investment in the conditions under which the rule of law is viable (“past investments”) and the costs that a particular implementing mechanism will have downstream (“future costs”). It also examines rule of law mechanisms in stable democracies and concludes by asking whether it is necessary to proceed with a criminal prosecution of former members of the Bush administration in order to vindicate the rule of law.

Keywords:   democracy, rule of law, transitional justice, social investment, criminal prosecution, Bush administration

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