The Rule of Law, Validity Criteria, and Judicial Supremacy

Abstract

The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This chapter analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standards, which are also standards of political legitimacy, it does not follow that judicial supremacy is politically illegitimate. The analysis here is concerned with just one element that contributes to political legitimacy; no assumption is made, though, satisfaction of procedural rule of law standards is a necessary condition of legitimacy.