Foreword

What is the rule of law, and why does it matter?Scholars have tended to pose this question as a conceptual one: does organizing power and authority by means of law imply certain moral commitments, ways that power should be shaped and constrained?In the twentieth century, Lon Fuller argued that law required certain formal characteristics-government through general rules, promulgated in advance and available to the public, reasonably stable and internally consistent, possible to obey, and actually implemented by officials. 1Without these qualities, Fuller argued, we should not say that law is present at all.These qualities, moreover, seemed to him to imply a certain moral relationship between state and subject: a respect for the self-responsibility of the individual as a rational planner of her own life.To this, H.L.A. Hart replied that Fuller's formal characteristics of law were, unfortunately, compatible with extremely evil regimes, so that the presence or absence of law said very little about the political morality of a government. 2Since then, much of the debate over the rule of law has taken place on this philosophical landscape.At one pole of doubt, skeptics follow Hart in denying that talk of "the rule of law" reveals much worth understanding. 3At an opposite pole of conviction, thinkers associate the rule of law with more robust and substantive commitments, such as certain human rights and a liberal idea of equal treatment. 4In between, theorists continue to spell out versions of legality with more or less tropism toward the pole of substantive conviction, such as Jeremy Waldron's argument that the rule of law includes both an idea of the power of living generations to make the law they think best and orientation of government toward the common good. 5Another such argument is John Finnis's contention that although the rule of law can be specified in minimal, Fuller-style terms, the value of these qualities emerges only in light of a broader conception of how law serves human freedom and flourishing, and that only a regime oriented to those values will have reason to uphold the rule of law.