The strong version of the rule of law

Paul Gowder

doi:10.1017/CBO9781316480182.003

It is widely accepted among rule of law scholars, as well as lawyers and philosophers at large, that the law must be general – that it must treat all in the community equally, or as equals (as will be seen, those two phrases mean different things). This ideal appears in more familiar forms in the demands of activists and the provisions of constitutions worldwide, such as the Equal Protection and the Privileges and Immunities Clauses of the US Constitution. It's surprisingly hard, however, to sort out what that abstract ideal should actually require of our political communities.I have said that achieving regularity and publicity rules out hubris and terror, but this is only partially true: a state can be regular and public with respect to only some of the subjects of law, while still inflicting hubris and terror on others (e.g., slaves). To be wholly free from hubris and terror, a state's laws must be minimally general in that official coercion of all subjects of law satisfies regularity and publicity.However, even if the state achieves publicity and regularity with respect to all subjects of law, its legal system still might not treat the subjects of law as equals, if there is one (public and regular) law for some individuals (i.e., elites) and another for the masses. Generality, the third and strongest principle of the rule of law, forbids this. For the state to comply with the principle of generality, officials must substantially satisfy the principles of publicity and regularity and only use the state's coercive power in accordance with laws that do not draw irrelevant distinctions between individuals (that is, general laws). They must also use the discretion given to them consistently with the same principle: in a standard formulation, they must treat like cases and individuals alike, treating them differently only if there is a relevant distinction between them.Most of the argument in this chapter will be devoted to filling out the idea of a “relevant distinction.” This, I argue, means that when a law or exercise of official discretion treats people differently from one another, there must be public reasons to justify the different treatment. I also add some more flesh to the notion that generality is about equality.

The strong version of the rule of law

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