Rules, Rights, and The Rule of Law
Committee: Eric Mack (chair), Oliver Sensen, David Shoemaker, Jeremy Waldron (New York University School of Law)
Immanuel Kant, Tübingen University Library, Tübingen, Germany
Most legal philosophers reject Lon Fuller’s claim that the rule of law’s demands (the ‘principles of legality’) constitute an ‘internal morality of law’. Fuller’s main critics – i.e. H.L.A. Hart, Ronald Dworkin, Joseph Raz, and Matthew Kramer – dismiss that claim by arguing (1) that the moral desirability of conformity to the rule of law within a given community derives wholly from the goals which that community’s legal system happens to promote, and (2) that conformity to the rule of law does not preclude widespread violations of human rights between that community’s members. According to this line of objection, the rule of law’s demands are not properly characterized as an internal morality of law because conformity with the rule of law is thus merely instrumentally, not intrinsically, morally desirable. Further, whatever degree of moral desirability attaches to a community’s conformity to the rule of law would seem to be only trivial in light of the rule of law’s compatibility with widespread human rights violations.
However, this dissertation argues that, by their own lights, Fuller’s main critics should nevertheless affirm that conformity to the rule of law is intrinsically and non-trivially morally desirable. This is because they all have reasons of their own to affirm that members of a community will treat each other’s human rights with due respect only if, and insofar as, that community conforms to the rule of law. And they should all affirm this claim because they all have reasons to accept the following premises--
Because Fuller’s main critics all have reasons for accepting that members of a community will treat each other’s human rights with due respect only if, and insofar as, that community conforms to the rule of law, Fuller’s main critics should thus all hold that conformity to the rule of law is intrinsically, and not merely instrumentally, morally desirable. Moreover, the fact that the moral desirability of the rule of law itself derives from due respect for human rights undercuts their insistence that the compatibility of the rule of law with widespread human rights violations implies that conformity to the rule of law is only trivially morally desirable.
However, this dissertation argues that, by their own lights, Fuller’s main critics should nevertheless affirm that conformity to the rule of law is intrinsically and non-trivially morally desirable. This is because they all have reasons of their own to affirm that members of a community will treat each other’s human rights with due respect only if, and insofar as, that community conforms to the rule of law. And they should all affirm this claim because they all have reasons to accept the following premises--
- Members of a community will treat each other’s human rights with due respect only if, and insofar as, they do not interfere with each other’s full enjoyment of those rights.
- Members of a community will not interfere with each other’s full enjoyment of their human rights only if, and insofar as, they do not interfere with each other’s free exercise of those rights.
- Members of a community will not interfere with each other’s free exercise of their human rights only if, and insofar as, they do not interfere with each other’s secure expectations that others will not interfere with their exercises of their rights.
- Members of a community will not interfere with each other’s secure expectations that others will not interfere with their exercises of their human rights only if, and insofar as, that community conforms to the rule of law.
Because Fuller’s main critics all have reasons for accepting that members of a community will treat each other’s human rights with due respect only if, and insofar as, that community conforms to the rule of law, Fuller’s main critics should thus all hold that conformity to the rule of law is intrinsically, and not merely instrumentally, morally desirable. Moreover, the fact that the moral desirability of the rule of law itself derives from due respect for human rights undercuts their insistence that the compatibility of the rule of law with widespread human rights violations implies that conformity to the rule of law is only trivially morally desirable.