The Rule of Law

Abstract

Abstract The chapter investigates the significance of the rule of law for private law, first presenting a general account of the rule of law and then turning specifically to private law. The rule of law has the double function of ensuring that the exercise of state power is through law and in accordance with law. The first of these is the aim of Lon Fuller’s desiderata for governing human conduct through legal rules; the second is the concomitant of the separation of legislative, executive, and adjudicative powers in the form of government that Kant termed a ‘republic.’ The rule of law takes as its subject matter the constitutive (and not the regulative) aspects of a republican polity. The rule of law, therefore, differs from the Rechtsstaat, which in its contemporary version incorporates regulative notions of justice. However, taking over the argument of Julius Ebbinghaus, the chapter contends that injustice is to be distinguished from inhumanity (exemplified by Nazism and apartheid), which is never within the competence of legal authority. Turning to private law adjudication, the chapter argues that the retroactivity of adjudicated norms does not violate the rule of law. The separation of powers makes it implausible to assume that Fuller’s desiderata apply to adjudication in the same way that they apply to legislation. The rule of law is satisfied by the antecedent public availability of the legal materials out of which a new adjudicative norm is shaped. Prospective overruling is, accordingly, the solution to a non-existent problem.