The Telos of the Rule of Law
Abstract
I propose a relatively modest account of the rule of law that seeks to reconcile aspects of both formal and substantive definitions of this concept. Formal definitions only include formal and procedural principles, with the instrumentality of the law and the notion of efficacy as essential aspects. Substantive definitions include the same principles but also substantive content, with the connection between law and morals as an essential aspect. I am suggesting a way how to think about the relation between the rule of law and the common good, in a dynamic that I am calling ‘the telos of the rule of law.’ In the first part I analyze both types of definitions and the traditional way that the distinction is drawn between them. This analysis will provide concepts and ideas that will be part of a conciliatory way how to think about that distinction. In the second part I discuss core elements of the rule of law implied by the ‘basic principle’ of being ruled by law – without addition of substantive content. They are part of what is described as ‘an internal morality of law.’ In the third part I connect key ideas previously discussed, showing their presence in definitions of the rule of law of intergovernmental organizations such as the United Nations. I will follow the same outline of such definitions but making explicit the connection between the rule of law and the substantive dimension comprised in a general idea of the common good.