The rule of law: a basic account

Paul Gowder

doi:10.1017/CBO9781316480182.002

In this chapter and the next, I present a novel account of what the rule of law demands and why we should care. The account brings together pretheoretical evaluations of rule of law institutions in real states, functional generalizations of those institutions, and an account of their moral worth.Together, Chapters 1 and 2 defend two key theses. First, the rule of law is morally valuable because it is required for the state to treat subjects of law as equals (“the equality thesis”). Specifically, the rule of law fosters vertical equality between officials and nonofficials and horizontal equality among nonofficials.Second, states comply with the rule of law to the extent that they satisfy the following three conditions (“the three principles”):Regularity: Officials are reliably constrained to use the state's coercive power only when authorized by good faith and reasonable interpretations of preexisting, reasonably specific, legal rules.Publicity: The rules on which officials rely to authorize coercion are available for subjects of law to learn; officials give an explanation, on reasonable demand, of their application of the rules to authorize coercion in individual cases; and officials offer those who are the objects of state coercion the opportunity to make arguments about the application of legal rules to their circumstances; the public at large may observe these reasons and the arguments about them.Generality: Neither the rules under which officials exercise coercion nor officials’ use of discretion under those rules make irrelevant distinctions between subjects of law; a distinction is irrelevant if it is not justifiable by public reasons to all concerned.Each condition presupposes the satisfaction of those before it. (It is possible, however, to combine the partial satisfaction of a later principle with only a partial satisfaction of an earlier principle – for example, to have a state that is partly general, but excludes some discrete class of individuals from the protection of the laws, and hence is also only partly regular and public.) Regularity and publicity together lead to vertical equality. A state that has achieved them has achieved a weak version of the rule of law: its officials cannot easily abuse their power, and individuals can be fairly secure in their legal rights against the state. Generality leads to horizontal equality.

The rule of law: a basic account

View Online

Abstract

Details

Metrics