“Taking Hamlet out of the Play: In Defense of a Substantive Conception of the Rule of Law”
with Carmen Pavel
October 18, 2022
The rule of law has implications for how we evaluate in practice the acceptability of various legal systems. The philosophical debate about the appropriate content of the rule of law has failed to capture the multidimensional character of the rule of law. The dominant view, one shared by Lon F. Fuller, Joseph Raz, H.L.A. Hart, F.A. Hayek and others is that the rule of law must embody at most formal or thin rule of law criteria. Prospectivity, publicity, and consistency are said to be formal features of the law which protect individual autonomy. Yet the dominant view does not do justice to the rich history of the rule of law ideal and the diverse problems of arbitrary rule it was seeking to correct. Also, on its own the formal conception cannot protect individual autonomy, which is its main function. Thus, leaving out substantive rights from a conception of the rule of law is like taking Hamlet out of the play. Substantive rights ought to be the main character in a conception of the rule of law which is morally meaningful and practically consequential. In this article, I defend a conception of the rule of law which includes individual rights such as individual sovereignty rights, non-discrimination, freedom of speech, property, and due process rights. This conception is the appropriate way to understand the ideal of the rule of law as a measure which should help us assess the legitimacy of various legal systems. It can also better address the problems that historically gave rise to the rule of law ideal in the first place.
Carmen Pavel specializes in political philosophy and the history of political thought. Her interests include international justice and international law, liberal theory and contemporary challenges to it, and ethics and public policy. She received her Ph.D. from Brown University and then served as a postdoctoral fellow and lecturer in the Program in Political Philosophy, Policy and Law at University of Virginia and subsequently at the University of Arizona.
Dr Pavel’s recent work has examined the nature and limits of institutionalizing rights and theories of constitutionalism. Her current book project, under contract with Oxford University Press, focuses on the reasons we have to develop international law and the appropriate scope of its authority over sovereign states.