Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Philosophy

Supervisor

Dennis Klimchuk

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.

Summary for Lay Audience

The phrase “rule of law” has become of universal significance both at the national and international levels. Its constant invocation despite political, economic, or cultural differences, shows unanimity on its importance in the defense, or legitimization, of a variety of actions, such as the protection of human rights, or the defense of the territorial integrity of a nation. There are however disagreements about how to define the rule of law. Some theorists argue that the rule of law only includes certain formal requirements such as, for instance, that laws must be publicly promulgated, that they must be clear, or that no one should have any penalty by government without a hearing by an impartial and independent tribunal. Other theorists however argue that the rule of law should also include substantive contents in its definition, such as human rights and democracy. Formalists argue that this inclusion creates difficulties, especially between peoples who defend conflicting values. We could end up in disputes between groups that try to see their special aspirations incorporated in ‘the rule of law,’ making thus difficult its definition and applicability. On the other hand, by considering only formal requirements we seem to make a sharp separation between the rule of law and morals, making the rule of law compatible even with authoritarian regimes who, in the name of their own promulgated laws, can violate human rights. I propose an account of the rule of law that seeks to reconcile essential aspects of both formal and substantive definitions. I am suggesting a comprehensive way how to think about the relation between the rule of law and the idea of the common good. It is in the latter that we may situate all those ideals and values that we, as a community, may develop and want to defend and promote. We can understand this close relation in a dynamic that I am calling the telos of the rule of law, where the common good, as an open project always subject to debate, is seen as that end for the sake of which the rule of law acquires its proper significance.

Download

Share

COinS