The Rule of Law and Human Rights

Abstract

Chapter IX considers the lessons to be drawn from the fiduciary model concerning the form and content of legislation. Most contemporary scholarship on the rule of law follows Fuller in presuming that legislation respectful of the rule of law must generally conform to formal requirements such as publicity and clarity. Yet there is no consensus on the justification of these requirements. Against the instrumental view of positivists such as Joseph Raz, I argue that the rule of law has intrinsic moral value. This intrinsic value arises from the state-subject fiduciary relationship and is grounded in human agency and dignity. Once we situate this understanding of the rule of law within a fiduciary conception of the state, we can see that the rule of law, properly understood, places limits on the content of legislation: the legislature cannot pass laws that unjustifiably violate human rights without running afoul of the rule of law.