Keywords

rule of law, theories of law, legal theory, natural law, positivism

Abstract

This article proposes that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this conventionalist concept of law in the sense that natural lawyers have wanted, but they arise from a social fact, not a background moral or political theory, thus bridging the persistent chasm that divides positivist and natural law theorists.

Original Publication Citation

“Legal Theory and the Rule of Law,” APA Newsletters (American Philosophical Association) , Vol 01, No. 2 (Spring 2002): 117–122.