The Rule of Law and Equality
Paul A. Gowder Jr.
University of Iowa - College of Law
August 29, 2011
Law and Philosophy, Forthcoming
This paper prevents a novel account of the rule of law and its normative value.
Conventional conceptions of the rule of law are rooted in an idea of liberty. The standard account supposes that the rule of law is valuable because, e.g., it permits citizens to plan their lives, and thereby supports their free choices.
This paper, by contrast, defends an egalitarian theory of the rule of law. The rule of law fosters vertical equality between officials and ordinary citizens by requiring officials to treat citizens with respect when they use their public powers, and by forbidding systems of state terror. It fosters horizontal equality among ordinary citizens by requiring citizens to reciprocally share the cost to produce the public good of law and order, and by forbidding the creation of legal castes.
Reimagining the rule of law as an egalitarian principle supports a new account of what the rule of law demands, focused on three principles: regularity, publicity, and generality. Together, they require that official power be used only under laws that citizens can participate in enforcing, and that treat all citizens as equals.
Number of Pages in PDF File: 76
Keywords: rule of law, legal theory, political theory, jurisprudence, political philosophy, legal philosophy, generality, publicity, regularity, predictability, equality, libertyAccepted Paper Series
Date posted: August 29, 2011 ; Last revised: November 6, 2012
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