Is the Rule of Law Really Indifferent to Human Rights?

Abstract

A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context of legal relationships. I argue that the state and its legal subjects are in a particular kind of legal relationship with one another, a fiduciary relationship, and that the content of the state's ensuing fiduciary obligation is the rule of law. Because the rule of law is intelligible in terms of the right, and independently of the good, it follows that compliance with the rule of law necessarily makes a moral difference regardless of how poorly the state lives up to the demands of the good. This is a conceptual rather than an empirical claim, and it leads to the conclusion that respect for human agency in the context of the state-subject fiduciary relationship necessarily entails respect for human dignity, respect for human dignity entails respect for human rights, and therefore a commitment to the rule of law entails a commitment to human rights.

Keywords: rule of law, human rights, fuller, raz, hart, philosophy of law, legal positivism, legal philosophy, agency, dignity