Liberty, Justice, and the Rule of Law

Abstract

Law has a notably respectable place in liberal political theory. Everyone agrees that the "rule of law" is one of the core principles of liberal constitutionalism. Here, it is said, we enjoy a "government of laws, and not of men." But why do liberals, as a rule, share this respect, even reverence, for law? The rule of law need not be so honored; it has not been so honored in many (less liberal, but nevertheless respectable) times and places. Political theorists who are not liberals have rarely bestowed upon the idea of law the privileged place it has always held for liberal political theorists, from Locke to Dworkin. So why is law so honored here, both in the ideas of liberal political theorists and in the practice of contemporary liberal democracies? What is so special about law for liberals? It is my task here to discuss the place of political theory or political philosophy in legal scholarship. It is tempting to begin by emphasizing the gulf between justice and law: The job of political philosophers is to worry about justice; the job of lawyers is to worry about the law. Someone might say, then, to the lawyers and law professors: Justice is none of your business. (That is, it is none of your business as lawyers: We are all citizens too.) But this useful division of labor is perhaps not quite intelligible in the liberal polity, where it is so hard to think about justice without also thinking about the law. So we must begin this inquiry, it seems to me, with this superficial appearance: Law has an unusually proud place in the liberal understanding. Liberal political theory somehow teaches us that law and justice are inextricably bound, and so it might seem to authorize lawyers to become political philosophers. What's wrong with that?