Why the Rule of Law Project Demands Extralegal Change

Abstract

Rule of law scholarship overwhelmingly presupposes that the discipline does not place moral demands on the extralegal conditions in which people live and work. Theorists take the rule of law construct to be concerned nearly exclusively with certain of the legal system’s characteristics, or additionally with official expressions of power.

This paper disagrees, and views social and economic conditions as correlative to a legal system’s rule of law-relevant attributes. As such, extralegal conditions are important in determining the practical impact of those attributes. Individuals’ actual capabilities affect their access to, and ability to meaningfully interact with, law’s procedural mechanisms and official exercises of power. Because core rule of law interests in autonomy require sufficient access to law and governance to enable people to assert rights and claim defenses, safeguard negative freedom, and participate in democratic initiatives, the rule of law project appropriately demands that lived conditions not preempt such interactions.

Practical considerations rooted in the legal community’s ethos, on the one hand, and philosophical approaches to the avoidance of moral dilemmas, on the other, further underwrite this reimagined conception whereby the rule of law discipline may demand extralegal change