A Substantive Conception of the Rule of Law: Non-Arbitrary Treatment and the Limits of Procedure

Abstract

In his contribution to this volume of Nomos, Jeremy Waldron develops a conception of the rule of law that emphasizes the centrality of procedural guarantees in the courtroom, such as rights to an attorney, to an impartial judge, and to a fair trial. Procedural guarantees should be respected, writes Waldron, because they protect the dignity of individuals as “active intelligences.” In my contribution to the same Nomos volume, I draw on Waldron’s powerful case for the importance of procedures to develop an argument for a more substantive understanding of the rule of law. Specifically, I emphasize two ways that Waldron’s argument might be expanded. I argue first that Waldron’s appeal to dignity as the moral basis of procedures commits him to an account of substantive guarantees. These guarantees may limit, at times, the procedural dimensions of both law and democratic decision-making. Second, I expand on Waldron’s notion of dignity - itself a substantive value - as respect for “active intelligence.” In particular, I argue that those subject to law are entitled to non-arbitrary treatment. When dignity is theorized in this way, we can better understand the relationship between the substantive values at the heart of the rule of law and their substantive implications. This expanded conception of dignity more clearly distinguishes between the concept of the rule of law and the ideal of democratic self-rule. I also specify ways in which our approaches to theorizing the rule of law parallel our competing theories of democracy.

Keywords: Rule of Law, Waldron, Democracy, Fuller, Jurisprudence, Criminal Law, Procedure, Substance, Self-Government, Dignity