Law and Philosophy,
Vol. 24, 2005.
Available at SSRN
It is often argued that the rule of law is only instrumentally morally valuable, valuable when and to the extent that a legal system is used to purse morally valuable ends. In this paper, I defend Lon Fuller’s view that the rule of law has conditional non-instrumental as well as instrumental moral value. I argue, along Fullerian lines, that the rule of law is conditionally non-instrumentally valuable in virtue of the way a legal system structures political relationships. The rule of law specifies a set of requirements which lawmakers must respect if they are to govern legally. As such, the rule of law restricts the illegal or extra-legal use of power. When a society rules by law, there are clear rules articulating the behavior appropriate for citizens and officials. Such rules ideally determine the particular contours political relationships will take. When the requirements of the rule of law are respected, the political relationships structured by the legal system constitutively express the moral values of reciprocity and respect for autonomy. The rule of law is instrumentally valuable, I argue, because in practice the rule of law limits the kind of injustice which governments pursue. There is in practice a deeper connection between ruling by law and the pursuit of moral ends than advocates
of the standard view recognize.
The next part of this paper outlines Lon Fuller’s conception of the rule of law and his explanation of its moral value. The third section illustrates how the Fullerian analysis draws attention to the impact that state-sanctioned atrocities can have upon the institutional functioning of the legal system, and so to their impact on the relationships between officials and citizens that are structured by that institution. The fourth section considers two objections to this account. According to the first, Razian objection, while the Fullerian analysis accurately describes the nature of the requirements of the rule of law, it offers a mistaken account of its moral value. Against my assertion that the rule of law has non-instrumental value, this objection argues that the rule of law is only instrumentally valuable. The second objection grants that the rule of law has non-instrumental moral value but claims that the Fullerian account of the requirements of the rule of law is incomplete.