H. L. A. Hart allowed that “there are many different types of relation between law and morals.” But he mostly, and sparingly, focused on law’s role in facilitating human survival, necessitating the legal system’s “minimum content of natural law.” Hart’s minimum-content view, in service of his concern to separate law and morals, spilled over into his laconic pronouncement on “legality,” typically deemed synonymous with the rule of law. He claimed that, if the legal system is to fulfill its social control function while abiding by legality, it will have to enact rules that are “within the capacity of most to obey.” This minimal expression has influenced slim and formal conceptions of the rule of law ideal and, as argued here, counts as the sort of reductive misapprehension that he himself so masterfully refuted with respect to the concept of law itself. Taking issue with such a thin view of the rule of law, this Article’s starting premise is that the concept affords “a” critical relation between law and morals by providing both legal officials and ordinary citizens with a construct by which to evaluate legal systems in progress. Because a legal system’s central features are both duty-imposing and power-encouraging, those are the features naturally appropriate for the rule of law appraisal. Unappreciated in the academic literature, this in turn suggests that, within conceptual constraints discussed, the rule of law project implicates a moral inquiry into the legal system’s impacts upon both the capacity of the people to comply with law’s commands and their capabilities — whether political, economic, or within some other adjectival category defining life’s lived qualities and conditions — to partake of the powers and entitlements sought to be conveyed by legal norms.
Northern Illinois University Law Review
"The Rule of Law: “A” Relation Between Law and Morals,"
Northern Illinois University Law Review: Vol. 42:
2, Article 2.
Alani Golanski, The Rule of Law: “A” Relation Between Law and Morals , 42 N. Ill. U. L. Rev. 208 (2022).