The Rule of Law and the Importance of Procedure

Nomos 50:3-31 (2011)
Download Edit this record How to cite View on PhilPapers
Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law.
No keywords specified (fix it)
(categorize this paper)
PhilPapers/Archive ID
Upload history
Archival date: 2020-10-02
View other versions
Added to PP index

Total views
232 ( #24,993 of 2,432,663 )

Recent downloads (6 months)
187 ( #2,776 of 2,432,663 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.