Still a Rule of Law Guy

Abstract

Marc Hertogh was a commentator at a public seminar on my thoughts on the rule of law, held at the Paul Scholten Center for Jurisprudence, University of Amsterdam on April 23, 2013. His comments are available at SSRN: http://ssrn.com/abstract=2285996, and will shortly be published, together with this response. Hertogh commends me for advocating, but faults me for not pushing far enough, our supposedly common goal: a ‘sociological research agenda’ on the rule of law. In this response I argue that developing a ‘sociological research agenda’ is not my aim, or rather it is a secondary subaltern part of a conception that must begin with a philosophical question, and only then, as a necessary implication move on to sociology. The philosophical part argues that exploration of what I have variously called the goal, point, value or end of the rule of law must precede attempts to say what it is and how it might be achieved. Without some view on that first matter, we are flying blind on the second and third. I then propose such a value, opposition to arbitrary exercise of power. I acknowledge that the proposal is eminently, indeed essentially contestable, which is pretty obvious since it has been contested. I am committed to it, but the larger point about priorities doesn’t depend upon the particular value I propose. Sociology doesn’t help with the first question, but the need for it follows. It is a necessary part of reflection on what might help or hinder the achievement of those values, why it is likely to vary between societies and over time, and in particular why a narrow legalism is unlikely to be the answer anywhere. In some pieces, the emphasis is more on the philosophical component, in others the sociological gets greater attention. Both are, and I argue need to be, always present.

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