Rule of Law : Jay Bernstein

Lucy Helton / Rockne, Bastrop County, Texas
Lucy Helton / Rockne, Bastrop County, Texas

Rule of Law / Jay Bernstein

I. Nazi Law and the Rule of Law

Gustav Radbruch twice served as the Minister of Justice for the Social Democratic Party during the Weimar period. The final version of his Legal Philosophy was published in 1932. He went to ground during the Nazi reign of terror, only to resurface in 1946 with an essay entitled “Statutory Lawlessness and Supra-Statutory Law,”1 that, in response to the gross perversions of Nazi law, argues that a statue, despite being on the books, can be so unjust that it no longer should count as law at all, and conversely, there are norms – say those that form the core of the consensus about fundamental human rights – that while not actual statutes can and should be used by judges. The essay immediately became a fount of post-war German law and jurisprudence. Lon Fuller began teaching the essay at Harvard Law School, where it quickly became a prime node in the debate between Fuller’s defense of law as having an “inner morality” and the legal positivism of H.L.A. Hart, who argued there was an uncrossable abyss separating positive law and morals: the law is the law whatever its moral merits. Some aspects of this debate will concern us later.

It is, however, not his effort to demonstrate the out limits of positive law in the idea of statutory lawlessness with which I wish to begin; rather, it is the conclusion of Radbruch’s essay, with its sweeping encomium to the Rule of Law:

We must seek justice, but at the same time attend to legal certainty, for it is itself a component of justice. And we must rebuild a Rechtsstaat, a government of law that serves as well as possible the ideas of both justice and legal certainty. Democracy is indeed laudable, but a government of law is like our daily bread, like water to drink and air to breathe, and the best thing about democracy is precisely that it alone is capable of securing for us such a government.

“Legal certainty” refers to the social actuality of law – the certainty of the ordinary citizen that the rule of law prevails practically, in everyday life, and procedurally in the courts and government administration. Democracy is indeed laudable, but our daily bread is legal order, without which democracy is meaningless. Thus, despite Radbruch’s urgent justification of justice as forming the moral horizon of intelligibility for any legal system, it is finally his vision of a modest utopia of legal certainty, of everydayness under the Rule of Law, the Rule of Law’s own deflationary utopia that concludes his essay. The Rule of Law (within the horizon of justice), Radbruch presumes, possesses a utopian kernel, an ethical ideal intended to govern and depict the determining moment of an intrinsically valuable form of life.  Thus Radbruch’s contention must be that the Rule of Law possesses a utopian ethical content and ideality that is nonetheless compatible with it being the case that governance by the Rule of Law does not itself preclude the obtaining of unjust laws. I further take it as essential to Radbruch’s thesis that there is an emphatic but unelaborated dialectic between law and democracy; if pressed into a formula, we might say: democracy without Rule of Law is empty, the Rule of Law without democracy is blind.

Although going back to the Greek notion of “isonomia,” the equality of all under law, the Rule of Law receives its clearest modern formulation – contrasting the coercive or forceful rule of one man over another with the rule of laws themselves – in Locke’s Second Treatise. Locke’s formulation significantly identifies the meaning of law as such, what having a legal system is, with the Rule of Law: “Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not: and not be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”2 Locke’s clinching last clause, as we shall see, sets in place a foundational element in arguments for the Rule of Law, namely, what is to be escaped from through it: a disorderly, threatening, fearful world in which what others will do (to me) is unregulated and unpredictable. Legal positivists and anti-positivists alike strike this note; here is Judith Shklar turning to the Rule of Law as a form negative ethics after excoriating affirmative views of it: “If one then begins with the fear of violence, the insecurity of arbitrary government and the discriminations of injustice one may work one’s way up to finding a significant place for the Rule of Law, and for the boundaries it has historically set upon those most enduring of our political troubles.”3 One patent extension in Shklar’s formulation in contrast with Locke’s is that the threat of the unregulated behavior of others is matched by the arbitrariness and violence of government action. These two sources of arbitrariness, private and state violence, should be thought of as equally threatening, and equally demanding of response. The stakes of arguments for the Rule of Law will turn on what affirmative provisions are necessary in order for those negative determinations to have normative authority.

While the notion of attaining meaningful freedom through ascension to life under law is palpable in Locke (as it is in Rousseau), so is his emphasis on “a liberty to follow my own will in all things.” It is this latter emphasis that forms the cornerstone of the skeptical regard in which the Rule of Law is held by socialists and radical democrats. Their suspicion is that the Rule of Law is nothing but the legal veneer and framework for capitalist economic relations; a suspicion that receives a modest confirmation by the Rule of Law’s eager embrace by conservatives and (some) libertarians. So Friedrich Hayek argues that the kind of rules appropriate to the Rule of Law is “formal rules which do not aim at the wants and needs of particular peopleThey are intended to be merely instrumental in the pursuit of people’s various individual ends.”4 He further contends: “any policy aiming at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.”5 Not only does the Rule of Law foster an instrumentalist conception of law and seek to protect existing inequalities, but, its critics argue, the requirements for stability and an enduring framework of action must curtail and inhibit radical democratic practice, while its formality is morally indifferent to significant differences in the life conditions under which different groups of individuals suffer, making equality under the law in practice a right to inequality.6 Nor can it be denied that under even the most progressive legal systems individuals will be required to follow some laws that they regard as unjust, and that, as the history of slavery, woman’s suffrage, criminal law, and the treatment of the poor amply demonstrates, most otherwise constitutional and legal states have tolerated large swathes of significant injustice throughout their history. How can the Rule of Law spell out even a modest utopian ideal if legality so easily consorts with injustice?

Because it insists upon the clean separation of law from morality, legal positivism has the singular virtue of being able to license the actuality and continuing possibility of there being unjust laws; indeed, legal positivism takes the inevitability of unjust law as a weighty argument in its favor. The positivist appropriation will be a running theme in the middle parts of my essay. Section II offers an examination Radbruch’s theory since his argument against the extremes of Nazi law was, rightly, a pivotal moment in the re-emergence of anti-positivist conceptions of legality. In Section III, I elaborate Lon L. Fuller’s account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” While important, these features of law are too formal in Fuller’s characterization to carry the weight he assigns to them. Arguably, the modern commitment to the idea of the Rule of Law has its genealogical source the eighteenth century Europe-wide decision to abolish first all judicial and then all penal torture. The argument connecting the abolition of judicial and penal torture with the Rule of Law is found in Caesar Beccaria’s On Crimes and Punishments.  Section IV offers a version of Caesar Beccaria’s argument that the formal and procedural elements constituting the Rule of Law should be conceived of as generating the necessary conditions for relations between the citizen and the state, on the one hand, and amongst citizens themselves on the other hand that will count as freeing individuals from coercive, force-based relations both among themselves and between themselves and the state.  The Rule of Law spells out the minimum institutional forms necessary to escape from arbitrary, dependent relations grounded on force alone.  If this is true, then it follows that the Rule of Law makes possible horizontal relations among citizens, and vertical relations between citizens and the state that recognize, protect, and foster a conception of humans as vulnerable and mutually dependent centers of self-determining agency. The Rule of Law thus projects a conception of dignity-preserving relations among citizens, and between citizens and the state using solely the modest means implied by the original contrast between coercive and lawful relations between persons – this is the claim that, however differently, both Radbruch and Fuller were searching after. It is a modest, even deflationary utopia of everydayness in that mutually respecting lives governed by the Rule of Law are not necessarily free from either injustice or tragedy.

II. Radbruch’s Outer Limit of Law

Radbruch’s pre-war jurisprudence and his post-World War II writings have both been read as positivist and anti-positivist. That he has been interpreted in such radically opposing ways derives from the structural complexity of the basic elements of his philosophy of law. That complexity can already be glimpsed from the evidence of the famous core paragraph of “Statutory Lawlessness and Supra-Statutory Laws”. It will prove useful to have the paragraph in full before us.

The conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice. It is impossible to draw a sharper line between cases of statutory lawlessness and statutes that are valid despite their flaws. One line of distinction, however, can be drawn with utmost clarity: Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice. Measured by this standard, whole portions of National Socialist law never attained the dignity of valid law.7

The complexity of Radbruch’s theory derives from his idea that law itself has three constitutive elements: (political) purposiveness; justice; and legal certainty. Legal certainty is the domain of positivity, the empirical actuality of law. Even here, Radbruch is insisting that the domain of legal certainty – “positive law, secured by legislation and power” – takes precedence, practically and morally we might say. Legal certainty requires that even when the laws are unjust, like a non-progressive tax system, or, despite their claim to represent the general good, laws that only benefit the powerful or the wealthy should be taken as a legally valid. Both such occurrences are so pervasive and routine that were we to strike down a legal system on their basis alone, none would be left standing. It is assumed, for reasons we shall return to, that there is a good to legal order that is independent of both substantive justice and determinate social purpose.

Nonetheless, Radbruch is arguing, a complete separation between law and morality is unintelligible: beyond the broad structural fact that justice is that for the sake of which there is legal order in general – “law is the reality the meaning of which is to serve justice” (LP, 75)8 – there is something in the very idea of law demanding that once a certain threshold is passed, once the “conflict between statute and justice reaches an intolerable degree,” then statute must “yield” to justice, where so yielding provides the category of not merely “flawed law” – law failing the requirements justice generally – but “invalid law”, law no longer deserving the title of law. Radbruch understands this moment not as law yielding to morality as something external to it, but rather as a moment in which the justice-component of law trumps the legal-certainty component such that we must regard the statute in question as invalid, as law whose claim to authority and obedience has been internally subverted. At least this is necessary if the normative authority of law is going to be separable from the sheer force of command. Having an appropriate legislative source can never be a sufficient criterion of lawfulness – or rather, that restriction is what the exorbitance of patently morally evil laws seems to demand.

Why should we believe this thesis?  I construe the remainder of the paragraph to begin an answer to this question: we recognize the intelligibility and necessity of the idea of the extreme of “flawed law” if we can make out the case for statutory lawlessness – some statutes are so systematically flawed from the point of view of justice they can no longer be counted as an item of law at all. Justice functions as the outer limit of lawfulness. If this claim can be made out, then it will follow that law, including positive law, cannot “be otherwise defined than as a system and an institution whose very meaning is to serve justice.” In brief, Radbruch’s argument for statutory lawlessness is coextensive with his claim that justice is a structural element of the concept of law. Radbruch arrives at his formulation as a consequence of wanting to demonstrate, at least, that positivism’s “a law is a law” if unqualified would undermine judges’ capacity to challenge unjust laws since it makes the idea of statutory lawlessness a contradiction in terms; positivist conceptions of law, it is argued, entail that judges are abandoned to whatever laws have been enacted, and thus lack any resources internal to the law itself with which to confront blatantly unjust laws.

In attempting to locate the outer limit of lawfulness Radbruch opts for the formal principle of justice, the minimum core idea of the Rule of Law of “equal treatment of equals.”9 (In the form “Like cases should be treated alike and differences cases treated differently” this principle, in giving procedural heft to the difference between sameness and difference, is close to a formal principle of reason.) What he is considering is transparent, namely, Nazi laws that treated Germans and Jews differently; he continues: “Legal character is also lacking in all the statutes that treated human beings as subhuman and denied them rights, and it is lacking too, in the caveats that, governed solely by the momentary necessities of intimidation, disregarded the varying gravity of offenses and threatened the same punishment, often death, for the slightest as well as the most serious crimes.”10 All these are indeed instances of flouting the treating like cases alike principle. The problem is not that we are not tempted by the thought that statutes of this kind should not count as law; it is, rather, that it is not their disavowal of the principle itself that is at issue.  After all, the principle of equal treatment is broken whenever race, sex, class, party, et. al., are made legally disqualifying in some way. The issue is not whether laws embodying such disqualifications are unjust, it is whether their degree of injustice is so exorbitant that they thereby lose their title to lawfulness. Failing the equal treatment principle is not the same as an “intolerable” cleavage between statute and justice; and cannot be such for Radbruch precisely because he insists that degrees of injustice matter, and that there must conceptual space within our understanding of law for a notion of valid but unjust laws.

This is not to deny the thesis that extreme injustice is no law; it is to claim that searching out an outer limit of lawfulness is the wrong locale for defeating positivist conceptions of law and capturing law’s ethical impulse, for three reasons. First, because extreme injustice is necessarily indeterminate between an item that no longer deserves the title of law, and a laws that are, as H.L.A. Hart expresses it, “too evil to be obeyed.”11 The very idea of an outer limit place morals at the boundary of lawfulness, at which point there seems little to choose between saying that a statute does not deserve to be called law or to say the statute morally deserves to be disobeyed. Second, if one accepts the title of being lawful is only rarely categorically classificatory, that we rather tend to think of degrees of lawfulness, including considering whole legal systems as tainted, defective, more or less corrupt, barely legitimate, and so on, then extreme cases, outer limits, are, again, going to make us look in the wrong direction; we need to be able to speak of the kinds and degrees of “flawed law” even more that we require the concept of statutory lawlessness; given the force of the first argument against the outer limit thesis, it follows that statutory lawless should be an extreme of defective law, rather than considering flawed law an emanation of the absolute limit. Third, focusing on the instance of extreme injustice must betray Radbruch’s own lingering intuition that the Rule of Law, legal certainty, itself contains the orienting ethical idea of lawfulness.

I want to suggest, however briefly, that these tensions in Radbruch’s position are systematic, rooted in the Neo-Kantian disposition of his Legal Philosophy. Gaining a little clarity about these systematic issues will aid the argument further down the line. In 1932 Radbruch had argued that the three structural elements of the concept of law – justice, purposiveness, and legal certainty – were equiprimordial: “The three aspects of the idea of law are of equal value, and in the case of conflict there is no decision between them but by the individual conscience” (LP,118); by 1946 he found it necessary to rank the aspects, giving a nod to justice as the outer limit. The necessity for generating a rank value-ordering of the three aspects was to defeat not only Legal Philosophy’s equality of values arguments, but even more importantly, its own presumption that a judge had role-bound “professional duty… to validate the law’s claim to validity, to sacrifice his own sense of right to the authoritative command of the law, to ask only what is legal and not if it is also just” (LP, 119).12 This argument, if carried forward, would have legitimated Nazi jurists in rationally and morally following the dictates of unjust law; Radbruch had good reasons for wanting a revision in his theory. Yet, if the argument for a rank ordering amounts to no more than an argument that justice should be a structural aspect of law in general, then we are deposited back in the situation of the three value aspects being equal and the decision between them left to the extra-legal determinations of conscience; and once conscience is the pivot, then claiming that it is a jurisprudential question rather than a directly moral one is hard to make emphatic.

In an effort to undermine the positivist exigencies of Nazi law, Radbruch’s late essays attempt a response to the logical anarchy among the three governing ideals of law proposed in Legal Philosophy. Yet, since the late essays are operating with the same three elements, each having precisely the same features as they possessed previously, it is unclear how the introduction of a rank ordering is possible. Further, if one agrees that the application of the ideal of justice requires supplementation in order to be effective, then one might even urge that it is precisely the laws that one believes one is morally compelled to disobey that should be designated by the idea of statutory lawlessness – thus subsuming the anti-positivist locution within the positivist separation of spheres.

If one agrees that law fundamentally concerns the precepts determining good living-together (LP, 81), and further that there is something correct about Radbruch’ three-part schema, that the law is answerable to and yet constitutively determined by irreducibly competing ideals, then we require some explanation as to how it can be that the logical anarchy of the three elements can so radically bring ruin to the orienting ideal of our good living-together; how can the end and terms of law so ruinously come apart? One simple hypothesis here is that Radbruch’s methodical dualism between fact and value leads him to interpret legal certainty in wholly factual – positivist – terms as power and effectiveness, yielding a baroque notion of the validity of the factual: “The law is valid not because it can be carried through effectively; rather, it is valid if it can be carried through effectively, because it is only then that it can afford legal certainty” (LP, 118). Radbruch’s conception of legal certainty, despite itself, contains nothing that might distinguish the “peace” (ibid.) it is meant to afford from sheer terror. If legal certainty is not only challengeable by justice and purpose, but lacking in the wherewithal to distinguish certainty from arbitrariness, then Radbruch’s version of legal certainty is radically inadequate in its own terms.

Now recall that it was legal certainty that was at the center of the immanent utopian ideal of the Rule of Law and we have an even sharper puzzle: what sense can be made of legal certainty representing indifferently a utopian ideal and a terroristic threat? I take the simple explanation of this to be that Radbruch has severely stripped the idea of legal certainty of any idealizing, normative elements through which we might recognize the kind of certainty provided as lawful and not merely powerful, as a certainty belonging to the notion of law itself.  The positivism of his concept of legal certainty deprives that certainty of the qualification of lawfulness, such that precepts having the structure and form of law, in being in effect, might yield a certainty providing confidence, security, and trust.  Law’s positivity must itself possess a ‘legal’ character, where that character belongs to empirical actuality and is not solely a creature of an ideality – justice or purpose – external to it. What Radbruch’s account of legal certainty lacks (or lacks in his central accounts of it) is an appropriate conception of the Rule of Law, that is, of the kind of rule which law alone provides. Because of his methodical fact/value dualism, he transposes into the notion of justice both substantive justice, the just distribution of power, rights, welfare, et. al., and the demands of formal justice, the kinds of formal considerations that belong to a legal regime as such.

III, Fuller’s Inner Morality of Law

If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark.13

Although Lon Fuller is responsible for inserting Radbruch’s anti-positivist legal theory into English-speaking jurisprudence, making it a pivot in his debate with H.L.A. Hart, Fuller too was skeptical about the proposal of making extreme injustice an outer limit to legality that would thereby secure law’s relation to morality. Fuller’s conception of the Rule of Law as providing an “inner morality” of law plants law’s authority and dignity in the very place where Radbruch locates its utopian ambition, namely, in the domain of legal certainty. Rather than conceiving of legal certainty as an achievement of stability through force alone, Fuller contends that the stable framework of interaction that legal certainty provides is an ethos, a form of ethical life that receives its shape from the Rule of Law itself. But this claim would be suspicious in the extreme if the Rule of Law was presented in terms of lofty moral ideals, joining law and morality through subsuming the law directly under morality or justice conceived in thick moral terms.

Fuller’s philosophical tour de force is to “establish a necessary connection between law and justice, on the ground that the precepts of formal legality [that are the fundaments of the Rule of Law are] necessary conditions for the existence of law.”14 Fuller proposes eight wholly formal criteria for lawfulness that are not themselves transparently moral in character that nonetheless, he thinks, are ingredient in the goodness of law; so the idea of an “inner morality” of law turns how these eight formal, even grammatical characteristics of lawfulness secrete an ideality that makes fidelity to law morally compelling. The eight criteria are:

Generality: legal rules are general – addressing types of activities and social roles, never individuals; which supports the principle that like cases are to be treated alike, and thereby that the law applies to all equally (no one is above the law).

Publicity: laws are to be promulgated widely and publically so that they can be known by all those affected by them; laws should not be kept secret from those affected. Secrecy is antithetical to legality as such.

Prospectivity: laws should govern future actions, and retrospective laws should be avoided except in extreme instances. Retrospective laws would be versions secret laws since like them the agent could not have planned his actions differently; and further, since retrospective laws cover what has already been done, then even if stated in general terms, they carry the unmistakable taint of particularity.

Clarity: laws should be comprehensible to those they affect, or, where that is not possible, comprehensible to those with legal expertise who can represent those affected (entailing the sub-requirement of the need for sufficient access to legal representation when necessary).

Noncontradiction: legal norms should be consistent with one another sufficient to allow individuals to satisfy all legal obligations imposed on them.

Practicability: a version of the “ought implies can” principle, requiring that legal obligations be within the ordinary powers of citizens to satisfy them.

Constancy: a principle opposing the idea of continuous and radical transformations in the law; laws should remain stable and continuous through time in a manner sufficient to allow those affected to know them and plan their actions accordingly. Constancy naturally clusters with the demands for prospectivity, consistency, and practicability since, in practice, lack of constancy will abridge the purpose served by the other three.

Congruence: laws should be effectuated; and there should be a continuous relation between the laws that are officially promulgated and the administration of the law.

As presented here, these eight criteria are starkly formal in character, none containing substantive moral content. This formality is central to the power of Fuller’s argument: justice and legality are to be conceptually connected through the form of law alone.

Even on the basis of their bare statement and without further elaboration, it is clear that Fuller’s eight precepts of legality are the beginning of a resolution to the difficulties besetting Radbruch’s theory. Let us say that the eight precepts for legality are the fundamental requirements for legal certainty: we cannot conceive of a legal system that would deliver the stability, the trustworthiness, and the claim to legal validity – which jointly are the conditions necessary to invite fidelity to the law – without conforming to these eight principles. While the bulk of what he wants to say about justice is packed into the principle of generality, even Radbruch’s conceptions of force and effectivity are here provided with a normative profile in terms of constancy and congruence.  Legal certainty always did mean to point to the actuality of the Rule of Law; what Fuller’s precepts demonstrate is that legal positivity, the actuality of the law, is itself normatively constituted. The Kantian image of metaphysically discrete domains of facts and values as “closed circles” (LP, 53) incapable of thoroughgoing interpenetration and fusion is overcome if to be a law or, better, to be a (recognizable) legal system is itself in part constituted by conformity to formal principles; the positivity of law is suffused with principle through form alone.

There is fair agreement now that the appropriate unit for consideration of legality is not the individual statute, but a legal system as a whole since each of the formal principles intend to pick out a threshold along a continuum of degrees of more or less: a legal system is not disqualified as delivering legal certainty if there are some laws that are never enforced (jaywalking), or where some laws change regularly (yearly changes in the tax code is acceptable, if irksome, while monthly changes would not be), or if some retrospection is found necessary in order to correct a previous wrong; nor is it disqualified if publicity remains narrowly relative to who is affected by a law or even more narrowly to those who represent those affected, or where clarity for some laws is narrowly construed as relative to a small segment of legal professionals, etc. As Fuller’s fable of the hapless Rex – in which Rex insistently flouts each of the principles in turn – is meant to illustrate, even an enlightened, well intentioned, and benevolent legislator will fail to provide anything recognizable as a legal system if any one of the precepts is systematically and routinely flouted: all secret laws or incomprehensible laws or laws that change week to week or are never enforced or are physically impossible to satisfy or contradict one another or are legislated only after the act in question has been done or apply to only arbitrarily selected individuals. In each of these cases the law would be incapable of being followed; individuals would not be able to regulate their conduct in accordance with law because either the law was not available, or impossible to follow, or utterly arbitrary in its application or meaningless because not a reliable indicator of government action. Together with further requirements for the successful implementation of the Rule of Law – a competent judiciary, access to legal representation, separation of powers, and, as we shall see, a series of procedural and due process requirements (e.g., Habeas Corpus15) – a legal system will possess more or less validity, be more or less corrupt, more or less effective, more or less just; and at the extremes we will want to withhold the title of “legal system” altogether: not every system of rule and control is a legal system.16

The high formality of the principles themselves and the persuasiveness of Fuller’s argument that flagrant disregard for any one of these requirements over an extended period of time would undermine legal validity and the conditions that make fidelity to a legal system possible has led even some leading positivist legal theorists to accept Fuller’s precepts.17 While testimony to the power of Fuller’s argument, still since Fuller’s ambition in generating a conception of the “inner morality” of law was to overturn legal positivism, then to begin with we need an account of the connection between a narrow view of the principles as providing the minimum necessary conditions for legality which captures their appeal to even positivist jurisprudence, and Fuller’s own robust interpretation of them as constituting the “inner morality” of law.18

It is important to note that Fuller’s precepts are neither essential to human action generally nor even to cooperative action: we often aim at unachievable perfection; hold competing values that cannot be jointly realized; sometimes discover that secrecy is the morally generous gesture; opacity in the context of the arts can be an affirmative value; we eschew routine and stability because we find being sensitive to changing conditions, individually or as a group, requires a willingness to be spontaneous rather planning far ahead; and of course we often tailor our actions to just the individual before us, where to treat her as “alike” relevant others would be to mistreat her. Despite their broad and patent formality, the eight precepts do seem specific to legal systems, which is to acknowledge that the ‘good’ of a legal system is distinct from the morally good itself (whatever it is). What are the stakes of a legal system that make the flagrant failure of any of those eight principles disqualifying?

In contrast with a managerial system directed toward achieving particular ends, Fuller argues that law “is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another, the role of government being that of standing as a guardian of the integrity of the system.”19 The primary emphasis in consideration of law is not about rule or governmentality or political processes; in the first instance, to think about law is consider the characteristics necessary for a framework and infrastructure, without any particular purposes of its own, that is suitable for a large and diverse community to interact with one another in pursuit of their routine and everyday affairs; that is, legality refers to a particular form of collective life that we lead with a large and diverse cohort of anonymous others who we understand to have ground desires, contingent preferences, and orienting values that are different from our own, where our shared life together is one in which these diverse desires, preferences, and values are capable of being acted on. Something like this thought is percolating behind Radbruch’s espousal of legal certainty with his claim that legal value points to precepts good for living-together. Law is about a form of living-together that arises when we can no longer rely on tradition (customary practices) or a unifying collective purpose or set of purposes, or the pertinences of affect and context suitable for practical engagement in a narrow setting or the absolute authority of a recognized ruler in order to solve the problems of action coordination, moral disagreement, and the sheer multiplicity of ends we must mutually accommodate. In brief, a modern legal system provides an escape from arbitrariness under conditions of value pluralism, social complexity, and social change that enables individualized life-plans and pursuits of desire.

A legal system is further distinguished from a managerial system (or a system of training and habituation in which conformity and obedience are essential) by addressing its demands to the deliberative capacities of individuals construed as self-determining and responsible agents.20 All the business about publicity, prospectivity, clarity and the like only makes sense if we conceive of laws as items that agents are to deliberatively take into account in interacting with others here and now, and in planning their future course of action. (Notice as well how these particular principles converge to underwrite the principle nulla poema sine lege – no penalty without law.) But this entails, Fuller argues, that “there is a kind of reciprocity between government and citizen with respect to the observance of rules;”21 in addressing citizens in this manner the government is simultaneously binding itself to those rules and the procedures for determining what rules should be instituted and how that institution is to occur. In addressing citizens as deliberative agents, governments generate a structure of vertical reciprocity in which they become answerable to citizens if they fail to live up the rules of law; without answerability to citizens, the address to them as deliberative agents would be hollow. But this is also to say that within a system of law citizens are responsible for judging the worthiness of the rules addressed to them.22 From this perspective, democracy can be interpreted as the fulfillment of law’s deliberative address, as the authorized authority of law rather than, say, the workings of an imposing collective will.  Law is the resultant of the on-going dialogue between legislator and citizen.

Return to the initial question of freedom from arbitrariness that legal certainty is to provide; this can now be refined to say that where “the rule of law is observed in a community, i.e. where law rules, it provides a substantial measure of protection in two dimensions: protection of the governed against arbitrary power of those who govern (vertical) and protection of members of the society against the arbitrary exercise of power by their fellows (horizontal).”23 Fuller’s principles provide, precisely, legal certainty; but, as Radbruch rightly states, legal certainty remains distinct from concrete legislative and political purposes – the Rule of Law is about legal form – and even more radically distinct from substantive conceptions of justice; a fully just society or a society in which the full raft of international human rights where law would be something more and other than a legally certain one.  Law, in this sense, is a morality for grown-ups: it, again, assumes that those affected will have desires, ends, and moral commitments that are diverse; that there will be not only bad laws, but routinely there will be laws that some affected take to be immoral and unjust but still, somehow, deserving of respect because they are the law; that laws can be legally valid without being morally true; that we do not need to judge our fellow citizens’ motives for conforming their behavior to law – law-abidingness is sufficient, and virtue unnecessary; unlike ideal morality, a system of law leaves scope for the alienated and the disaffected to cooperate in whatever way they deem appropriate so long as they are, in fact, law-abiding (and when they are not, sanctioning can kick in); but, the determinations of the Rule of Law itself are of a kind to invite moral allegiance when they are widely and consistently implemented, that is, the idea of the Rule of Law invites (summons) moral allegiance and responsiveness.

This is, one might argue, the great achievement of Fuller’s theory: from one angle, legality appears wholly in the guise of an instrumental good, allegiance to which can be as narrow fear of punishment; while from an opposing angle it can appear as a moral summons to an adult form of mutually respectful living-together, where even government acts in a manner that is respectful of citizen’s individuality, autonomy, and conception of self-worth. Nonetheless, there would appear to remain an essential gap between the inner morality of the Rule of Law and morality proper, a gap that is, one might argue, sufficient for the purposes of bending even the Rule of Law back in a positivist direction since for each citizen there will be a gap between legal validity and moral truth; but if for each citizen there is a separation between law and morality, then essentially the law is first positive before it is moral. Said somewhat differently, it is the persistence of the Radbruchian tri-partite schema in Fuller that continues to generate a gap between morality proper – the justice and substantive (moral) purposes of law – and legal certainty as constituted by the Rule of Law, making the latter continue to appear as mere form, as depicting a collective social arrangement that insists upon a certain gap between itself and morality in its substantive sense, and which hence can be designated for all intents and purposes as value-neutral.  So it remains the Radbruch tri-partite schema that enables the perception of not only Radbruch’s own thought, early and late, as being positivist despite his insistence to the contrary, but also further permits Fuller’s principles to be adopted by positivism.

IV. Legal Persecution: The Red Herring Returns

There is an evident clash between interpreting Fuller’s eight Rule of Law principles as the ethics of a deflationary utopia – “a government of law is like our daily bread, like water to drink and air to breathe” – as opposed to taking them as providing the conditions for the operation of a complex, value-neutral instrument, the Swiss army knife of human institutions, with many purposes but no generic purpose.24 I term this clash the problem of the persistence of positivism in the analysis of the Rule of Law. Positivism persists in jurisprudence with more title than elsewhere because: (i) laws are human creations, posits, enacted rules, that, in the first instance and in the final instance, have whatever force they do because humans are willing to have their conduct ordered by them; (ii) laws are components of social practices that can be observed and analyzed like any other stretch of social reality; (iii) however else they are understood, laws are also instruments that solve a diversity of social problems, including moral problems, entailing that at least some part of their value is instrumental; (iv) strong readings of (i) – (iii) take them to entail that law is morally value-neutral. The final inference is certainly overly hasty. My analysis of the persistence problem begins from the continuance of the Radbruchian tri-partite schema whereby the legal certainty provided by the Rule of Law remains distinct from substantive conceptions of justice and concrete political purposes.  Legal positivists attempt to leverage the weak morality of the Rule of Law into outright value-neutrality by arguing that logically and conceptually the Rule of Law is compatible not only with flawed law, bad law, and laws with which we morally disapprove, but compatible with even outright evil practices dressed in legal form.

Raz: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.”25

Hart: “Proof that the principles by which we evaluate and condemn laws are rationally discoverable… leaves untouched the fact that there are laws which may have any degree of iniquity or stupidity and still be laws. And conversely there are rules that have every moral qualification to be laws and yet are not laws.”26

Hart’s and Raz’s claims strike me as true but irrelevant.  As we have already seen Radbruch argue, no account of formal justice and formal equality on its own is sufficient to determine who belongs within the class of justice-deserving individuals and who does not; the scope of ‘all’ in any formation of ‘all individuals are to be treated equally’ has always been and must always be determined historically, with each widening and inclusion of a heretofore excluded group the consequence of moral and political struggle. That a formally excluded class of persons comes to be included within the scope of justice-deserving regard is a matter of moral truth – ‘the individuals belonging to class X possess the same intrinsic moral (and therefore civic) worth as the individuals belonging to class Y, and therefore deserve the same treatment’ – not moral principles.27 Moral principles, norms, and values do not themselves determine who or what falls within their scope.  Hence the argument that a law, norm, principle, or value is compatible with great iniquity is no less true of the Rule of Law than it is of Kant’s Moral Law: Kant’s own emphatic racism only comes to contradict the Categorical Imperative once the moral equality of the races is acknowledged – because there are no races – and the meaning of that acknowledgement taken as entailing a strong version of the equal treatment principle; neither of those two claims automatically belong to the Categorical Imperative itself.28 No one, however, supposes that because the actual scope of Kant’s moral law requires further appraisals and empirical determinations for its application that the Categorical Imperative is itself value-neutral, or of only instrumental value.

Throughout modern history, presumptively universalist moralities have treated some humans as less than fully equal and fully human – those others are human, but too emotional or ignorant or uneducable or dependent to be fully morally responsible for their own lives or to participate fully in civic life; they are human, but perpetual children in need of governance and guidance from above. Women, we should recall, did not have the right to vote in France until 1944, and in Switzerland not until 1971; marital rape laws were still in effect in the United States in the 1980s. Moral values and principles require substantive moral beliefs about others before they can become empirically effective. The Rule of Law is in this regard no different than any other morality; substantive universalism and equality are always a concrete moral-political achievement based on substantive moral beliefs about others, rather than a feature of moral values and principles themselves. Hence, the inference from cases of the Rule of Law being compatible with gross iniquity says nothing about whether the Rule of Law is moral in itself or value-neutral.

Although never elaborated in sufficient detail, Fuller insists that the moral stakes of the Rule of Law turn on their capacity to acknowledge, protect, and nurture human dignity.

Every departure from the law’s inner morality is an affront to man’s dignity as a responsible agent.  To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination.29

In my initial pass at the inner morality of law, I underlined how law as determining what is good for acting together assumed both a horizontal and vertical reciprocity among agents: law provides the broad framework through which we can in our everyday affairs treat one another as self-determining agents, which in turn presumes, vertically, that the law must itself treat all those affected as self-determining agents.  To so regard agents is to respect their dignity.

Raz agrees with this claim: “…observance of the rule of law is necessary if the law is to respect human dignity.  Respecting human dignity entails treating humans as persons capable of planning and plotting their future.”30 After usefully profiling offenses to dignity as falling into three classes – insults (humiliation), enslavement, and manipulation (brainwashing) – and pressing, once more, a version of the iniquity argument – “The law may… institute slavery without violating the rule of law”31 – Raz attempts to drive a wedge between law and morality by claiming that the essential virtue of the rule of law is its preventing legal abuses, that is, the rule of law is corrects forms of abuse that are internal to having a legal regime, and hence the idea of a legal regime is antecedent to the rule of law. This is both stipulative and implausible.  As Jeremy Waldron pointedly argues: “…the Rule of Law aims to correct abuses of power by insisting on a particular mode of the exercise of political power: governance through law;” and this, he continues, is thought to better protect us from abuse, better protect our dignity, than managerial governance or rule by decree, for example.32

V. Beccaria’s Reformation: Notes for a Genealogy of the Rule of Law

Although Raz is conceptually wrong, he is historically correct: the modern idea of the Rule of Law took hold in the eighteenth century precisely in response to massive abuses that were then endemic to the law. It was those abuses that collectively defined “arbitrariness”; hence, if the Rule of Law is for the sake overcoming arbitrariness, and preserving and protecting human dignity, then a survey of the eighteenth context of its emergence is required.33

Judicial and penal torture were essential ingredients in all continental European legal regimes from the eleventh century until their remarkable abolition in the latter part of eighteenth century and the early part nineteenth century. In ways that might now seem implausible, torture was not regarded as the paradigm of human cruelty, the worse thing one person might do to another, but, on the contrary, formed a pivot of the entire Roman-canon criminal law system first, as a pivotal element in the law of evidence; and second, as a component of the penal system. In the Roman-canon legal system that began emerging the 12th century crimes punishable by the death penalty, or by severe mutilation or maiming, required either the testimony of two eyewitnesses or a confession. This was a hard standard to satisfy – murderers tend not to commit the vile deeds before eyewitnesses nor do they readily confess them; hence, torture was used as a supplement in order to ‘prompt’ a confession.

The intelligibility of penal torture had a different source: it depended on the general configuration of the relation between the sovereign authority of the monarch and the body of the victim that was displayed in penal torture – which was as common in England (the “Bloody Code” that made death by hanging and associated tortures the punishment for over 200 different crimes, many minor) as on the continent. In a world in which there was as yet no police, no routine mechanisms of law enforcement, punitive public executions were certainly meant to terrify and deter. But these characteristics had a specific contour in monarchies in which the authority of the law and the authority of the sovereign person were united. In breaking the law, the criminal is attacking the very person of the sovereign, attacking her or his authority. Public executions thus had a juridical-political function of reconstituting the momentarily injured sovereignty; it “restores sovereignty by manifesting it as it most spectacular…Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength.”34 What the tortured body spectacularly demonstrates is the power of the sovereign, that is, both the authority or validity or legitimacy of the sovereign’s laws and the force of those laws.

In the course of the eighteenth century, the sovereign law of torture entered into crisis because the fundamental form of its affirmation and vindication, penal torture, came increasingly to be experienced as brutalizing and violating, as cruel and vicious.35 Foucault carefully documents how the collapsing sovereign system came to be viewed as arbitrary and irrational, where this change of perception is what lay behind the view that sovereign torture was a violent attack on the individual, as something personal and therefore not lawful, as arbitrary and therefore illegal. The hollowness of sovereign authority was perceived as pervasive in the system as a whole by the reformers, from “too much power in the lower jurisdictions… [who] could carry out arbitrary sentences without adequate supervision,” to “too much power in the hands of judges who were able to content themselves with futile evidence,” to, finally, “too much power exercised by the king, who could suspend courts of justice, alter their decisions, removes magistrates from office, or exile them…. This dysfunction of power was related to a central excess: what might be called the monarchical ‘super-power’, which identified the right to punish with the personal power of the sovereign.”36 I understand the shift in the perception of torture from celebration to horror as generating a contradiction in the very idea of the sovereign law of torture: the event that was demonstrate the authority of the sovereign, the meaning of sovereignty and the meaning of law, demonstrated, at the very least, an abuse of authority, and even more, an arbitrariness in the application of law that effectively reduced legal to brute power. This is the arbitrariness that the rule of law is designed to curb. The abolition of first judicial torture and then penal torture that tore through Europe in less than a century, was not solely about the abolishing of a practice that had come to be pervasively viewed as the paradigm of cruelty and brutality; to abolish torture was to alter the relation of the citizen, and the bodies of citizens, to the state; it was to adopt an opposing conception of legality – it was to embrace the Rule of Law as the determinate negation of the sovereign law of torture.

Cesare Beccaria’s On Crimes and Punishments, first published in 1764, with its short but fierce arguments against “the barbarous tortures that have been elaborated with prodigal and useless severity, to punish crimes either unproven or illusory.”37 Beccaria’s work was almost immediately translated in twenty-two European languages, including Dutch, Polish, and Spanish; it went through 28 Italian editions and 9 French ones before 1800 (often accompanied by a laudatory commentary by Voltaire); it was translated into English in 1767 (Jeremy Bentham becoming Beccaria’s “apostle”), with multiple editions in both Britain and the United States (Jefferson copied long passages from it into his commonplace book; his proposals for revising the Virginia criminal code were drawn directly from Beccaria). It played a direct role in law reforms initiated by Catherine II, Frederick the Great of Prussia, and those carried out in France. Comprehending why Beccaria’s work was so influential is impossible if one directly focuses on his famous detailed arguments against torture (Chapter 16), or even his novel arguments against the death penalty (Chapter 28), the first systematic philosophical and jurisprudential critique of it of which I am aware.

The all-too-familiar and now accepted ideas that Beccaria presents are just standard Rule of Law and procedural due process requirements: separation of powers, judicial constraint, clear laws publically communicated, trial by a jury of peers, public trials, etc.  What gives these thoughts their power in the context in which they are presented is that they emerge as determinate negations of the sovereign law of torture. Beccaria argues that each Rule of Law and procedural due process provisions, as well as the general constraints for a just system of punishments, is a necessary condition to escape from the arbitrariness and cruelty of the sovereign law of torture. For example, in his critique of judicial (interrogational) torture, while Beccaria underlines all the ancient ideas about why pain does not conduce to truth, and that a system of interrogation through torture presents massive jeopardy to the sensitive innocent and maximal benefit to the guilty brute, the core of his argument is the adoption of the principle of “innocent until proven guilty”: “No man may be called guilty before the judge has reached his verdict; nor may society withdraw its protection from him until it has been determined that he has broken the terms of the compact by which that protection was extended to him” (p. 39). The principle that a person is innocent until proven guilty is precisely what is denied by legal torture for purposes other than punishment. Judicial torture takes possession of the body of the accused anterior to the proceedings that are for the sake of determining innocence or guilt. This is contradictory, however, only if it is assumed that criminal justice is for the sake of protecting the freedom and well-being of citizens through the establishment of the Rule of Law.  One might say that the presumptive innocence of the accused follows from individuals’ moral independence from the criminal justice system, whose existence depends on their voluntary adherence – conceptually and morally the state must be conceived of as a voluntary association. Only by being found guilty of, effectively, breaking his contractual promise does the citizen lose more than the portion of freedom originally surrendered in consenting to the social compact; any earlier interference in his liberty and well-being usurps his freedom, his legal personality, and thus his dignity.

Beccaria elaborates this collapsing sovereign logic thus: “the laws torture you because you are guilty, because you may be guilty, or because I want you to be guilty” (p. 43). Although Beccaria will lodge a series of empirical criticisms against the use of torture – showing its fundamental uselessness with respect to the purposes for which it is employed – his fundamental critique of judicial torture is not humanitarian (although its cruelty matters), but that its judicial uses for other than punishment run contrary to the very idea of the Rule of Law. To employ the means of punishment prior to the establishment of guilt involves government employing a power that no one has given to it, it denies the individual charged has standing and rights, and it transforms legality into the rule of the greater force, reintroducing the very arbitrariness that having a legal system was meant to overturn. Nothing could be worse for an individual than to lose the very freedom for the sake of which he agreed to the social contract in the first instance. Hence, not only must an individual be presumed innocent until proven guilty, but also, Beccaria insists, nothing less than a moral “certainty” is adequate for the sake of establishing guilt (p. 34) – guilty, we now say, beyond a reasonable doubt.

The kind of argument offered in defense of the principle of “innocent until proven guilty” could be developed for each of Fuller’s eight principles since the converse of each was indeed a feature of the sovereign law of torture – this, in effect, is just what Beccaria does. The ambition is to make the law legislatively just, transparent in its meaning and in its operation, and judgment of individual cases fair, constrained, and, again, transparent. In the language of contemporary jurisprudence, Beccaria is engineering a double transformation of the Rule of Law: from a “thin” to a “thick” conception of the rule of law in accordance with “substantive” principle, so making the “thick” conception itself substantive. The thin conception of the Rule of Law is intended to provide a wedge separating law from personal command: coercive government powers can be legitimately exercised only if they are the product of recognized legislative practice. Legitimate legislative processes beget legitimate legal products. It was this positivist conception of the Rule of Law that Beccaria was protesting against since patently the right to make law does not entail the making of right law; even if laws derive from a legitimating source, those laws may be not only unjust and unfair, but even lacking in those syntactical and formal features requisite for ‘lawfulness’ in general. The idea of a “thick,” formal and procedural Rule of Law stipulates the Fuller and Beccaria principles – broadly: generality, prospectivity, clarity, and neutrality – together with the requisite procedural and due process analogues. For Beccaria, however, we adopt these formal and procedural thick Rule of Law and due process requirements not for formal reasons (that they can be viewed as formal constraints on the legality is no part of Beccaria’s argument), but above all in order that the conditions for our protection from civil violence – the provision of a system of criminal justice – not become a form of legal, state violence as exemplified by arbitrary laws, arbitrarily applied, backed by judicial and penal torture. Hence, for Beccaria formal and procedural Rule of Law considerations themselves embody substantive ethical conceptions of human freedom and dignity. Or better, the entire purpose of Rule of Law considerations is to generate a moral standing of the citizen-subject in relation to the law; legality is a self-limiting construction of a living-together where the citizen-subject is the limit that must not be transgressed upon until and unless he or she is shown to have transgressed the limit represented by another subject. The citizen-subject as the limit and condition of legality is just what Fuller saw as the foundational “inner morality” of his eight precepts.

The provision of that substantive basis is always elliptical in On Crimes because Beccaria so emphatically eschews the use of natural law and natural rights considerations; their adoption, he argues, is always and necessarily historically provincial and thus, whatever the intention, conventional once more – just ‘our’ provincial conception of what natural law requires or what natural rights we possess. In place of natural law and natural rights, Beccaria discretely places before us, as the rhetorical and moral center of his argument, the broken bodies of the tortured, and the long history of morally horrific legal state violence. If we could not agree that that is wrong, then no further moral or legal agreements are possible. Even Beccaria’s deployment of the ideals of moral freedom and equality as premises for his argument takes its force as a determinate negation of palpable forms of social domination, state violence, unfreedom – of various ways in which we are enslaved – and inequality.  Beccaria’s elaboration and imaging of formal and procedural Rule of Law arrangements as possessing and generating a substantive ethical idea is the transfiguration of a massive, enduring, and finally all too visible history of legal state violence into an image of justice and public well-being. Beccaria’s Rule of Law doctrine, we might say, erects an image of a dignified civil body out of the remnants of its repeated sovereign mutilation through a process of determinate negation: what must a system of laws, criminal procedures, and practices of punishment be that would prohibit all the excesses, vices, arbitrariness, and cruelty of the system of sovereign torture? What idea of lawfulness can be offered as an alternative to the idea of sovereign law? As we answer these questions via the adoption of formal and procedural Rule of Law requirements what begins to emerge is a conception of the autonomous and dignified human subject whose body is her own and thus should never be violated by the hand of the state. Hence, formal and procedural Rule of Law as the generative mechanism for a conception of human dignity arises, in its first announcement, as nothing other than the determinate negation of sovereign torture or, what is the same, as a remembrance of suffering. By its restraint, the Rule of Law remembers past suffering as that which should never be repeated.

1. Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies 26, no. 1 (2006): 11.

2. John Locke, The Second Treatise of Civil Government, Chapter 4: Slavery, Section 22.

3. Judith Shklar, “Political Theory and the Rule of Law,” Political Thought and Political Thinkers (Chicago: University of Chicago Press, 1998), 36.

4. F.A. Hayek, The Road to Serfdom, (London: Routledge, 1944), 55 (second italics: JMB). For a fair minded evaluation of the policy implications of the Rule of Law as the necessary condition for a modern, capitalist economy see the Carnegie Endowment sponsored evaluations in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington, D.C.: Carnegie Endowment for International Peace, 2006).

5. Hayek, The Road to Serfdom,  59.  A few sentences later, Hayek unproblematically assimilates the socialist objection to merely “formal justice” to the Nazi objection to that idea. For Hayek’s most replete defense of the Rule of Law see his The Constitution of Liberty (London: Routledge, 1960), Part II.

6. For a documenting and response to the “equality,” “difference,” and “democracy” critiques of the Rule of Law from the perspective of socialism, see Christine Sypnowich, “Utopia and the Rule of Law,” Recrafting the Rule of Law: The Limits of Legal Order, ed. David Dyzenhaus (Oxford: Hart Publishing, 1999), 178-195.  Sypnowich presents an interesting defense of The Rule of Law with respect to the issue of socialist freedom in her The Concept of Socialist Law (Oxford: Clarendon Press, 1990), Chapter 3.

7. Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law,”  7.

8. LP = Gustav Radbruch, Legal Philosophy, trans. Kurt Wilk,  The Legal Philosophy of Lask, Radbruch, and Dabin (Cambrdige, MA: Harvard University Press, 1950).

9. Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” 8. We might sense that the gap between anti-positivism and positivism is less than meets the eye when we notice that H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (1958): 623-4, is equally emphatic that the “one essential element of the concept of justice is the principle of treating like cases alike.  This is justice in the administration of law [that is, procedural justice], not justice of the law” (italics Hart’s).

10. Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” 8.

11. H.L.A. Hart, “Positivism and the Separation of Law and Morals,” 620. Hart’s critique of Radbruch is that, beginning with the separation of law and morals does not entail an inability to make moral criticisms of law; moral criticism of the law is preferable to attempting to say of some statute that it is not law.  One need not agree with Hart’s preference in order to accept that simply on their own extremely unjust statutes say nothing about whether morality is integral to legality.

12. In 1932 this struck Radbruch as a way of correcting the prejudicial practice of the German courts for habitually failing to indict right-wing political murders (354 murders resulting in only one life sentence), and routinely sentencing left-wing murderers to death (22 murders punished by 10 death penalties and 3 life sentences). For this see Stanley L. Paulson, “Lon. L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses,” Law and Philosophy 13, no. 3 (1994): 354.

13. Lon Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harvard Law Review 71, no. 4 (1958): 632.

14. T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001), 61.  Allan’s book offers a sweeping and detailed defense of Fuller’s theory.

15. A fine handling of Habeas Corpus in the light of Fuller’s precepts cam be found in Larry May, “International Criminal Law and the Inner Morality of Law,” The Hart-Fuller Debate in the Twenty-First Century, ed. Peter Cane (Oxford: Hart Publishing, 2010), 79-96.

16. Agreeing here with Jeremy Waldron’s critique of “casual positivism” in his “The Concept and the Rule of Law,” Georgia Law Review 43, no. 1 (2008): 13-19.  The emphases of Waldron’s argument are broadly convergent with the ambition of this essay.

17. Mathew H. Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge University Press, 2007), Chapter 2; Scott J. Shapiro, Legality (Cambridge, MA: Harvard University Press, 2011), Chapter 14.

18. So Kramer (Objectivity and the Rule of Law, 28), argues that the eight principles “do not have any inherent moral bearings”; although they “acquire” moral bearings from the character of any regime in which they exist;” and in particular, acquire deep moral substance in liberal-democratic societies.

19. Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale University Press, 1969), 210.  This quotation is from “A Reply to Critics,” which concludes the Revised Edition.

20. Fuller, The Morality of Law, 162.

21. Fuller, The Morality of Law, 39.

22. The theme of law’s address to the deliberative capacity of agents is developed in potent ways by Gerald J. Postema, “Implicit Law,” Law and Philosophy 13, no. 3 (1994): 361-387.

23. Gerald J. Postema, “Positivism and the Separation of Realists from their Skepticism: Normative Guidance, the Rule of Law and Legal Reasoning,” The Hart-Fuller Debate in the Twenty-First Century, ed. Peter Cane, 275-76.

24. While the knife image is Raz’s, I cannot now recall the origin of the Swiss army elaboration.

25. Joseph Raz, “The Rule of Law and its Virtue,” The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), 211.

26. H.L.A. Hart, “Positivism and the Separation of Law and Morals,” 626 .  On p. 624 Hart points to our recent past: “This is so because a legal system that satisfied these minimum requirement might apply, with the most pedantic impartiality as between those affected, laws which were hideously oppressive, and might deny to a vast rightless population the minimum benefits of protection from violence and theft.  The stink of such societies is, after all, still in our nostrils. . .”

27. See J.M. Bernstein, Recovering Ethical Life (London: Routledge, 1994), 191-196.

28. Robert Bernasconi, “Who Invented the Concept of Race? Kant’s Role in the Enlightenment Construction of Race,” Race, ed. Bernasconi, (Oxford: Blackwell, 2001), 11–36.

29. Fuller, The Morality of Law, 162.

30. Raz, “The Rule of Law and its Virtue,” 221.

31. Raz, “The Rule of Law and its Virtue,” 221.

32. Waldron, “The Concept and The Rule of Law,” 11.

33. This section excerpts the argument of Chapter One of my Torture and Dignity: An Essay on Moral Injury (Chicago: University of Chicago Press, 2015).

34. Michael Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979), 48.

35. For historical refinements to this analysis see Pieter Spierenburg, The Spectacle of Suffering (Cambridge: Cambridge University press, 1984); and his useful survey, “Punishment, Power, and History: Foucault and Elias,” Social Science History 28, no. 4 (2004): 607-36.

36. Foucault, Discipline and Punish, 79-80.

37. Cesare Beccaria, On Crimes and Punishments and Other Writings, trans. Richard Davies, Virginia Cox, and Richard Bellamy (Cambridge: Cambridge University Press, 1995), 8. All page references in the text in this section are to this edition.