The Rule of Law and Human Dignity: Reexamining Fuller’s Canons
David J. Luban
Georgetown University Law Center
May 24, 2010
The Hague Journal on the Rule of Law, Forthcoming
Georgetown Public Law Research Paper No. 10-29
Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity - a ‘substantive’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller’s overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ‘in books’ and law’s enforcement. However, to succeed such an account must emphasize the lawyer’s counseling role and access to legal services, which Fuller neglects.
Number of Pages in PDF File: 17
Keywords: Rule of Law, Practice of Law, Dignity
JEL Classification: K00, K40Accepted Paper Series
Date posted: May 25, 2010
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