Reason, Freedom, and the Rule of Law

American Journal of Jurisprudence 46 (2001). Reprinted in the American Philosophical Association Newsletter on Philosophy and Law 1:1 (Fall 2001), Regent University Law Review 15:2 (2002-2003), Charles W. Dunn (ed.), Faith, Freedom, and the Future:  Religion in American Political Culture (Rowman & Littlefield, 2003), The Clarion Review 2 (2004), and Michael  A. Scaperlanda and Teresa Stanton Collet (eds.), Recovering Self-Evident Truths:  Catholic Perspectives on American Law (Catholic University of America Press, 2007).

The idea of law and the ideal of the rule of law are central to the natural law tradition of thought about public (or “political”) order. St. Thomas Aquinas went so far as to declare that “it belongs to the very notion of a people {ad rationem populi} that the people’s dealings with each other be regulated by just precepts of law.” In our own time, Pope John Paul II has forcefully reaffirmed the status of the rule of law as a requirement of fundamental political justice. For all the romantic appeal of “palm tree justice” or “Solomonic judging,” and despite the sometimes decidedly unromantic qualities of living by pre-ordained legal rules, the natural law tradition affirms that justice itself requires that people be governed in accordance with the principles of legality. Among the core concerns of legal philosophers in the second half of the twentieth century has been the meaning, content, and moral significance of the rule of law. The renewal of interest in this very ancient question (or set of questions) has to do, above all, I think, with the unprecedented rise and fall of totalitarian regimes. In the aftermath of the defeat of Nazism, legal philosophers of every religious persuasion tested their legal theories by asking, for example, whether the Nazi regime constituted a legal system in any meaningful sense. In the wake of communism’s collapse in Europe, legal scholars and others are urgently trying to understand the role of legal procedures and institutions in creating and sustaining decent democratic regimes. It has been in this particular context that Pope John Paul II has had occasion to stress the moral importance of the rule of law. One of the signal achievements of legal philosophy in the twentieth century was Lon L. Fuller’s explication of the content of the rule of law. Reflecting on law as a “purposive” enterprise – the subjecting of human behavior to the governance of rules – Fuller identified eight constitutive elements of legality. These are as follows: (1) the prospectivity (i.e., non-retroactivity) of legal rules, (2) the absence of impediments to compliance with the rules by those subject to them, (3) the promulgation of the rules, (4) their clarity, (5) their coherence with one another, (6) their constancy over time, (7) their generality of application, and (8) the congruence between official action and declared rules.5 Irrespective of whether a legal system (or a body of law) is good or bad, that is to say, substantively just or unjust, to the extent that it truly is a legal system (or a body of law) it will, to some significant degree, exemplify these elements.

It was a mark of Fuller’s sophistication, I think, that he noticed that the rule of law is a matter of degree. Its constitutive elements are exemplified to a greater or lesser extent by actual legal systems or bodies of law. Legal systems exemplify the rule of law to the extent that the rules constituting them are prospective, susceptible of being complied with, promulgated, clear, and so forth.

American Journal of Jurisprudence [pdf]
Regent University [pdf]