Abstract
If we have an account of the rule of law connected with the inner morality of law, we may claim that our formal account of the rule of law is not separable from the political ideal of it. In this chapter, it is argued, firstly, that the rule of law has features that lead to claims that it is on the line between the formal and the moral, and explains why this line is blurred. Secondly, suggests that our formal account of the rule of law is not separable from the political ideal of it.
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Notes
- 1.
Fuller’s eight principles are publicity, retroactivity, clarity, constancy, feasibility, prospectivity, generality, congruence (Fuller 1978, 65).
- 2.
I am indebted to David Luban for pointing out the need to make this point explicit.
- 3.
Luban states with regard to Fuller’s other aim: “he announced that the canons are conditions that make law possible – in other words, that enactments which deviate too much from the canons are not bad law, but rather no law at all” (vid. Luban 2010, 31).
- 4.
I was inspired in this point by Waldron (2008, 49).
- 5.
Here I elaborate an idea of David Luban’s stated in his comments.
- 6.
I was inspired at this point by David Luban (2007, 104)
- 7.
I was inspired in this point by Nigel Simmonds (2005, 62).
- 8.
Rawls, in the list of the first principle of justice, also gives a place to the rights and liberties covered by the rule of law beside other rights and liberties (Rawls 2003, 44). For example, “freedom from arbitrary arrest and seizure as defined by the concept of the rule of law”. In this respect his rule of law conception provides a more secure basis for the liberties.
- 9.
In this respect, we should notice three perspectives regarding the rule of law in this text. Two of them are Kramer’s two conceptions of the rule of law. The third one, which occurs as the basic problem of this text, explains it in connection with moral theory (I am indebted to Brian Bix for the distinction among three perspectives regarding the rule of law in this text).
- 10.
On the other hand, whether legal autonomy enhances human dignity is a different problem. In fact, this conception of autonomy, David Luban rightly states, does not suffice to guarantee human dignity: “Private oppression, domestic violence, workplace exploitation, and radical inequality are evils that legal autonomy will not cure. Indeed, legal autonomy may contribute to them by insulating private power from the state” (2010, 43).
- 11.
In this respect, Luban rightly states that this is also connected with what is wrong in Fuller’s theory: “those whose self-determining agency law aims to further need not include the entire population subject to the law, because the rules may really be addressed only to a numerical or power majority … That is, it may well be that the legal edifice of patriarchy aims to enhance the self-determining agency of men. But it does so at the expense of women, who are subject to the tyranny… of their husbands and fathers. Justice for guys coexists with injustice for women” (2007, 126).
- 12.
Meanwhile, these canons are also considered in the context of the law’s action-guiding function. But, Waldron rightly states, positivists, although they accept this function of the law, may not accept that it is connected with a dignitarian value. In this respect, it seems important to insist on distinctiveness of “an action-guiding rather than a purely behaviour-eliciting model of social control” (2008, 28).
- 13.
While Fuller stresses the importance of the courts, for him it is not enough to insist solely on these institutions. Fuller says that “in this country it is chiefly to the judiciary that is entrusted the task of preventing a discrepancy between the law as declared and as actually administered. … there are, however, serious disadvantages in any system that looks solely to the courts as a bulwark against the lawless administration of the law. It makes the correction of abuses dependent upon the willingness and financial ability of the affected party to take his case to litigation” (1978, 81).
- 14.
For example, in Turkey, there is a serious problem connected with the discretionary power of the courts, especially in political and gender-related cases. It is possible to see easily that the determinants of law are prejudices, ideologies or the judges’ beliefs in many cases.
- 15.
I was inspired at this point by Luban (2010, 44).
- 16.
At this point, one may claim that arbitrariness in law is connected with the arbitrariness in political theory, since to reduce arbitrariness in law is appealed to political morality.
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Acknowledgements
The author is thankful to Brian Bix and David Luban for constructive comments and helpful suggestions on earlier drafts; and to David Luban, Ioanna Kuçuradi and Sahir Özdemir for the English editing.
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Uygur, G. (2013). The Rule of Law: Is the Line Between the Formal and the Moral Blurred?. In: Flores, I., Himma, K. (eds) Law, Liberty, and the Rule of Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4743-2_7
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