The rule of law matters. But what it requires is, as Jeremy Waldron famously observed, “essentially contested.”1 There’s no shortage of scholarly work on the topic;2 harder to find are accessible, article-length treatments that accomplish more than map entrenched positions or presuppose mastery of technicalities. We should therefore welcome Felipe Jiménez’s article, The Rule of Law.
The piece’s stated aim is modest. Jiménez seeks to restate and clarify existing ideals that, in his view, explain why the rule of law matters. But this modest enterprise delivers a user-friendly and philosophically serious account that distinguishes the rule of law from nearby concepts and explains why it remains so valuable.
The article accomplishes far more than I can convey here. Jiménez addresses, among other things, whether the rule of law favors particular institutional arrangements, the role legality played in facilitating Chile’s transition from Pinochet’s regime, the distinction between law-and-order rhetoric and the rule of law, and how the state-of-nature tradition illuminates the value of legality. He also offers a memorable suggestion that governing without legality amounts to governing like an “asshole,” in the technical, philosophical sense.3 Any one of these points is worth the price of admission.
My review will instead focus on what I’ll call the weightiness problem for certain theories of the rule of law, and how Jiménez has alleviated some of my concerns about the problem.
Some background. Consider two schools of thought about the rule of law. “Thin” approaches insist that, to understand the rule of law, we must not conflate it with the rule of good law. Joseph Raz, for example, once asserted that the rule of law requires only that the state rule by law, that people be guided by it, and that the law be capable of being followed.4 On this view, the rule of law consists of formal virtues but remains compatible with grave injustice. “Thick” accounts resist this conclusion. They embrace formal principles of legality. But they also insist that the rule of law exists in a community only if it secures substantive goods like basic human rights.5
Thin accounts are conceptually tidy and theoretically well motivated. But there’s a problem. The rule of law’s value is often taken to be weighty—so weighty, in fact, that it can require officials to adhere to law even when justice appears to demand the contrary. But it is not obvious why formal virtues should prevail against countervailing demands of substantive justice. This is the weightiness problem. Thick views seem to have a ready answer to this challenge that thin views seem to lack.
Against this backdrop, Jiménez aligns himself with the thin school, while also agreeing with proponents of thicker accounts that the rule of law cannot be normatively toothless. On Jiménez’s formulation, the rule of law requires “the subjection of political power to the discipline of law.” From this core idea flow two familiar requirements: that individuals be able to conform their behavior to law, and that officials themselves be bound by law. Neither claim is novel. But the way that Jiménez elaborates on these themes brings into focus a possible answer to the weightiness problem.
He does so, first, by drawing attention to the rule of law’s intrinsic value. Republicans have long emphasized freedom as non-domination, which in turn opposes arbitrary and capricious exercises of official power that subject persons to official whim. Jiménez shows how this conception of freedom flows naturally from subjecting official power to legal discipline. As he puts it, “The fact that public officials are constrained by law means that we are not subject to their whim, and that we can plan and decide what to do by relying on public, general legal rules.” (P. 16.) One could, of course, question this formulation.6 But the deeper point stands: robust republican freedom and a relatively thin conception of the rule of law fundamentally demand the same thing. True, the striking overlap between republican freedom and certain thin views of the rule of law has been glossed before. But rarely have the two been drawn together so clearly and explicitly. This maneuver, if successful, would render the normative stakes of the thin conception’s “merely” formal values higher than one might have initially expected.
The rule of law also has instrumental value. Although it does not guarantee substantive justice, democratic self-governance, or any other social good, Jiménez reminds us that these goods are extremely difficult to achieve or maintain without the rule of law, even if they don’t strictly speaking require it. He also cites empirical work that connects the rule of law to economic flourishing. Other thin accounts, by contrast, tend to downplay instrumental value in emphasizing the rule of law’s intrinsic value or lack thereof. (Raz himself once denied that the rule of law had overriding importance as a political value,7 in part because its relation to substantive goods was only contingent.) Taken together, these intrinsic and instrumental considerations strengthen the case for normally embracing the rule of law even when it seems to collide with the requirements of substantive justice.
This paper is rich. As I warned earlier, I couldn’t address everything worthy of attention. Yet for all its richness, The Rule of Law remains highly accessible—and already appears on my jurisprudence syllabus, as a result. I liked it (lots).
- Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida), 21 L. & Phil. 137 (2002).
- A recent book-length treatment is Gerald Postema, Law’s Rule (2022).
- Aaron James, Assholes: A Theory (2014).
- See Joseph Raz, The Rule of Law and its Virtue, in the Authority of Law 210 (1979). I say “once” because he later revised his views. See Joseph Raz, The Law’s Own Virtue, 13 Oxford J. of L. Studies 1 (2015).
- See, e.g., Lord Bingham, The Rule of Law, 66 Cambridge L.J. 67, 76 (2007).
- Can official discretion have limits, yet be exercised to persecute one’s enemies within those limits, while still being compatible with the rule of law?
- See Joseph Raz, The Rule of Law and its Virtue, in the Authority of Law 210 (1979).
