A new interpretivist conception of the rule of law

Abstract

Ronald Dworkin argues that the content of the law is limited to the set of judicially enforceable rights. For him, legality, the value that law distinctively serves when it goes well, is primarily a virtue of judicial decision-making. The purpose of this article is to criticize Dworkin's court-centrism on the ground that it delivers an impoverished conception of legality. Legality has a systemic as well as an adjudicative dimension. In its systemic dimension it requires that government as a whole is structured in a way that guarantees the proper exercise of public power. Accordingly, for a legal system to exhibit the value of legality, it is not sufficient that its judges direct the use of state coercion under certain conditions. Additionally the exercise of public power must accord with a scheme of separation of powers that is geared towards justice. Not all the requirements of legality thus understood are judicially enforceable. This expansive conception of legality is underpinned by a theory of political legitimacy that differs from Dworkin's. Legitimacy is not merely a retail thing. A political community is also legitimate when it has standing guarantees for the proper exercise of power. Separation of powers is crucial among them.