THE RULE OF LAW: A CURRENTLY INCOHERENT IDEA THAT CAN BE REDEEMED THROUGH VIRTUE

The crucial idea of “the rule of law” comes in several varieties, or conceptions. One family of traditional conceptions of the rule of law focuses primarily on procedures, processes, formalities, and decision-making structures. Another family of rule of law conceptions places a greater emphasis on substantive or “positive” rights. These two contending families may or may not be reconcilable. More fundamentally, I argue herein that all of the mainstream understandings of the rule of law are internally inconsistent. Recognizing this surprising fact, however, can lead to favorable consequences. The mainstream ideas of the rule of law are indeed internally inconsistent, and thus misconceived, but they are not beyond any useful reconstruction. A genuinely coherent idea of the rule of law can be developed, and at least approached, in practice. The key point is that the rule of law, in and of itself, requires more than the currently dominant theories recognize or admit. The crucial missing element, as I discuss below, is that of the basic virtues and vices.

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