The Rule of Law
1. Different Conceptions of the Rule of Law:
The Rule of Law is a contested topic – there is not one accepted version.
Thicker and Thinner Conception:
Thin – proposed by writers like Fuller and Raz:
Very much concerned about the character of laws themselves and
about legal procedures.
Criteria include prospectivity, clarity, stability and congruence
between announced rules and their administration.
Thicker – proposed by writers like Bingham:
Includes everything in the thinner conception but adds important
substantive values.
e.g., democratic process, social justice, and human rights.
It is not true that every legal system has to abide by the thicker conception of the Rule
of Law.
There are many legal systems which aren’t democratic, many that are unjust
and some that don’t systematically protect human right.
Why must every legal system follow the thinner conception of the Rule of Law?
If we take Raz’s idea that fundamental point is to guide behaviour, if it is not
capable of guiding behaviour, cannot be a legal system.
2. Different Question Terminology:
Virtue:
A virtue can be defined as a good or useful quality of a thing.
BUT – the idea of virtue has another dimension, one that has been
contested heavily by academics (and which will form the focus of
this essay).
A virtue is a quality considered morally good or desirable and thus is valued
as a foundation of principle and good moral being.
The question then becomes whether the Rule of Law is a morally
valuable quality of a legal system.
Instrumental vs Intrinsic Value:
Instrumental – value depends on its contribution to some other value.
e.g., exercise is valuable because it contributes to our health – it is
instrumental to our health.
Intrinsic – valuable in and of itself.
e.g., friendship.
Not mutually exclusive – things can be both.
e.g., friendship can also have instrumental value – gives you other
opportunities/experiences that you wouldn’t have if you didn’t have
friends.
If best conception of the Rule of Law is the thicker conception, then clearly
the Rule of Law has intrinsic value.
Some of its components have intrinsic value which confer on the rule
of law some intrinsic value.
3. Fuller’s Conception:
Fuller is, perhaps, the strongest proposer of the idea that the Rule of Law is morally
valuable.
He envisages 8 desiderata that every legal system must adhere to, to a
considerable extent: laws should be general, open, prospective, clear,
consistent, stable, capable of being obeyed and upheld by officials.
These, he states, make up what he calls “the inner morality of law”.
By this, he means that such desiderata are not derived from ‘external’
moral principles but rather are an outline of what is necessary for the
1. Different Conceptions of the Rule of Law:
The Rule of Law is a contested topic – there is not one accepted version.
Thicker and Thinner Conception:
Thin – proposed by writers like Fuller and Raz:
Very much concerned about the character of laws themselves and
about legal procedures.
Criteria include prospectivity, clarity, stability and congruence
between announced rules and their administration.
Thicker – proposed by writers like Bingham:
Includes everything in the thinner conception but adds important
substantive values.
e.g., democratic process, social justice, and human rights.
It is not true that every legal system has to abide by the thicker conception of the Rule
of Law.
There are many legal systems which aren’t democratic, many that are unjust
and some that don’t systematically protect human right.
Why must every legal system follow the thinner conception of the Rule of Law?
If we take Raz’s idea that fundamental point is to guide behaviour, if it is not
capable of guiding behaviour, cannot be a legal system.
2. Different Question Terminology:
Virtue:
A virtue can be defined as a good or useful quality of a thing.
BUT – the idea of virtue has another dimension, one that has been
contested heavily by academics (and which will form the focus of
this essay).
A virtue is a quality considered morally good or desirable and thus is valued
as a foundation of principle and good moral being.
The question then becomes whether the Rule of Law is a morally
valuable quality of a legal system.
Instrumental vs Intrinsic Value:
Instrumental – value depends on its contribution to some other value.
e.g., exercise is valuable because it contributes to our health – it is
instrumental to our health.
Intrinsic – valuable in and of itself.
e.g., friendship.
Not mutually exclusive – things can be both.
e.g., friendship can also have instrumental value – gives you other
opportunities/experiences that you wouldn’t have if you didn’t have
friends.
If best conception of the Rule of Law is the thicker conception, then clearly
the Rule of Law has intrinsic value.
Some of its components have intrinsic value which confer on the rule
of law some intrinsic value.
3. Fuller’s Conception:
Fuller is, perhaps, the strongest proposer of the idea that the Rule of Law is morally
valuable.
He envisages 8 desiderata that every legal system must adhere to, to a
considerable extent: laws should be general, open, prospective, clear,
consistent, stable, capable of being obeyed and upheld by officials.
These, he states, make up what he calls “the inner morality of law”.
By this, he means that such desiderata are not derived from ‘external’
moral principles but rather are an outline of what is necessary for the
