Br. J. Am. Leg. Studies 10(1) (2021), DOI: 10.2478/bjals-2020-0013
A Structuralist Concept of the Rule of Law
Alani Golanski*
ABSTRACT
The prevalent approach to the concept of the rule of law among legal theorists puts
attributes first, assigning certain features of laws and sometimes legal systems as
rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel,
structuralist view of the rule of law. While honoring theoretical constraints that guard
against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills,
this approach shows that the concept implicates inequalities sustained by a society’s
social, economic, and political structures. This is accomplished by demonstrating
that the rule-of-law project holds a structural position in the collective normative
discourse as a vehicle by which people morally evaluate the interplay between the
actual capabilities of individuals and groups to participate in law, and the legal
system’s treatment of those individuals and groups.
Law’s procedural outputs may formally provide the public with access to the
legal system, but the rule-of-law project goes to the actual capabilities of the people
to access the system in reality, to have a fair opportunity to participate in the inputs
into the system, and to have that participation impartially adjudicated. Conditions
impacting a diversity of stakeholders – and particularly the most disadvantaged
within the population – perturb the virtues typically associated with the rule-of-
law ideal when those conditions, and the power exercised to maintain them, impair
capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral
operator, (1) makes sense of the schism we normally accept between the concepts
of law and the rule of law, (2) reorients the source of rule-of-law thinking from
theorists bent on fixing a conceptual definition to communities engaged in first-order
interactions with the legal system, (3) helps explain why citizens come not only to
expect law to constrain official coercive powers but also to demand that law promote
their actual capabilities to participate in the legal system on an egalitarian and
dignitarian footing, and hence (4) implicates a critique of conditions of political and
material inequalities that cannot but impair the healthy functioning of the rule-of-law
project.
KEYWORDS
The Rule of Law; Jurisprudence; Legal Theory; Waldron; Dworkin; Plato;
Aristotle; Dicey; Raz; Rousseau; Amartya Sen
*
LL.M., James Kent Scholar, Columbia University School of Law; M.A. Philosophy,
Graduate Center of the City University of New York; Director, Weitz & Luxenberg,
P.C., New York, New York. I thank David Beatty, Karuna Nundy, Gianluigi Palombella,
Brian Tamanaha, John Tasioulas, and Michel Troper for comments, encouragement of
the project, and for sharing their own materials. And I specially thank Martin Krygier
for the same, and also for his extraordinary generosity in affording the piece the benefit
of his readings and comments, as well as for his kindness and friendship.
© 2021 Alani Golanski, published by Sciendo.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
, 10 Br. J. Am. Leg. Studies (2021)
CONTENTS
Introduction.............................................................................................3
I. Realigning Concepts of Law and The Rule of Law..........................8
II. The Rule of Law as a Moral Operator............................................19
III. The Rule of Law Implicates Conditions That Impact Access
to Law.................................................................................................28
Conclusion...............................................................................................34
2
, A Structuralist Concept of the Rule of Law
Introduction
As urgently as ever, the rule of law is a paradigm worth revisiting. As one leading
theorist has said, “[r]ecent developments in Poland, Hungary, and elsewhere have
raised disturbing questions about the conditions and nature of the rule of law and of
threats to it.”1 Elsewhere’s domain is now widely deemed to include the American
experience, its iconic claim of governance by the rule of law having lost its seeming
immunity from grave challenge.
What do theorists reference, however, when they speak of the rule of law? It
hasn’t always been clear whether they have trained their sights on formulating a
robust concept or, with some distinction, on grappling with what it means to have
rule by law and then importing those characteristics into an idea of the rule of law.2
The somewhat diaphanous border between the two notions has been well-rehearsed,
the rule of law often being described in terms of rule-by-law’s formal features and
arguably thin constituent elements, and sometimes alternatively in terms of thicker
procedural and substantive rule-of-law conceptions.3
The prevalent approach puts attributes first, assigning certain largely non-
negotiable features of laws, lawmaking, official accountability, and sometimes
legal systems as rule-of-law virtues, and then contemplating whether to go further,
and if so how much further without diluting the distinctive value of the rule of law.4
Seen that way, it’s useful to reflect upon the extent of the overlap between qualities
of the rule of law and those requisite to considering an arrangement of governance
to be a legal system.
This article advances a novel view of the rule of law.5 I think that the rule of
law is an evaluative lens by virtue of which participants in the legal system and
1
Martin Krygier, What’s the Point of the Rule of Law?, 67 Buffalo L. Rev. 743, 745
(2019).
2
See generally Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory
96 (2004) (opining that “it is correct to conclude that formal legality has more in common
with the idea of rule by law than with the historical rule of law tradition”).
3
See Robert Barros, Dictatorship and the Rule of Law: Rules and Military Power in
Pinochet’s Chile, in Democracy and the Rule of Law 188, 189-90 (José María Maravall
& Adam Przeworski eds. 2003) (distinguishing the “narrow,” “formal” conception of “rule
by law” from a “more demanding” notion of the rule of law); David Dyzenhaus, Schmitt
v. Dicey: Are States of Emergency Inside or Outside the Legal Order, 27 Cardozo L. Rev.
2005, 2031 (2006) (writing that someone endorsing a fairly think conception of the rule
of law will likely conclude “that there is a point on a continuum of legality where rule by
law ceases to be in accordance with the rule of law”); Stephen Holmes, Lineages of the
Rule of Law, in Democracy and the Rule of Law 19, 49 (José María Maravall & Adam
Przeworski eds. 2003) (noting Rousseau’s idea that, “in existing societies, rule of law and
rule by law occupy a single continuum and do not present mutually exclusive options”); cf.
Joseph Raz, The Authority of Law: Essays on Law and Morality 222 (2d ed., Oxford
U. Press, 2009) (saying “[c]onformity to the rule of law is a matter of degree”).
4
See John Tasioulas, Penultimate version: The Rule of Law, in The Cambridge Companion
to the Philosophy of Law, at *4 (John Tasioulas ed., 2020) (John Tasioulas ed.,
forthcoming), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216796 (visited
Jan. 14, 2020).
5
The context in which I use the phrase the rule of law should make clear that the reference
is not to a particular rule or type of legal institutional pronouncement, but rather to the
larger term as commonly used in ordinary discourse.
3
, 10 Br. J. Am. Leg. Studies (2021)
individuals in the larger community assess the legal system’s functioning. A rule of
law appraisal is a certain type of evaluation that, for the most part, is appropriately
delimited by imperative legal procedural concerns. A disciplined focus on broadly
conceived procedural concerns (1) retains the distinctive values connoted by a rule-
of-law evaluation, (2) appears to align empirically with the way most people think
of the rule of law, (3) implicates the material conditions that impact people’s actual
capabilities to participate in governance, and thereby (4) accommodates a wide
ethos that tasks the rule of law with fairly heavy lifting. As such, the concept
holds a structural position in the collective normative discourse, functioning as
a vehicle for morally evaluating the interplay between the actual capabilities of
individuals and groups to participate in law, and the legal system’s treatment of
those individuals and groups.
Being vigorously procedural, the rule of law focuses not solely on static
features such as the clarity and generality of legal norms, but on questions of
access to justice and the legal system’s openness to the ordinary citizen or other
participants in the legal process.6 Ordinary individuals seeking redress are entitled
to the opportunity to advance their claims and to have their arguments treated with
dignity and considered fully, without regard to their social or economic status.7
Yet the very social and economic conditions that determine that status impact
the integrity of the rule-of-law project. If the individual is not afforded open and
dignified access to the legal system, then the rule of law is diminished—which
means that the rule-of-law evaluation of the legal system comes out poorly.
Hence the rule-of-law project concerns not solely the quality of the legal
system’s outputs, but also the capabilities of the people, acting responsibly on
their own behalf, to participate free of avoidable external obstacles. Those outputs
include law’s formal rules and procedures that condition the nature and ease of
entering into law’s argumentative or legislative structures. In other words, although
the general rules governing equality of access to justice, and the standards that
apply to everyone and that structure participation in the legal system, guide the
nature and form of inputs, these rules are themselves law’s outputs. This may
be enough to realize a procedural version of the rule of law affording “a mode of
governance that allows people a voice, a way of intervening on their own behalf in
confrontations with power.”8 Yet the well-being of the rule-of-law project demands
more to the extent that asymmetries of political power and economic well-being
trammel people’s capabilities to take advantage of the pathways that may formally
be open to them.9
6
Citizenship is not requisite to seeking legal redress in the American legal system. See
Graham v. Richardson, 403 U.S. 365, 371 (1971) (reaffirming that the Constitution
“entitles both citizens and aliens to the equal protection of the laws of the State in which
they reside”). But, for economy’s sake, I will often just use “citizen” to refer to anyone
having legal rights in the society.
7
See Jeremy Waldron, Dignity, Rank & Rights 33 (2012) (hypothesizing that “the
modern notion of human dignity involves an upwards equalization of rank, so that we
now try to accord every human being something of the dignity, rank, and expectation of
respect that was formerly accorded to nobility”).
8
Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 8 (2008).
9
See Jean-Jacques Rousseau, A Discourse on Inequality 133 (Maurice Cranston
trans., 1984) (1755) (discussing “all the different masks behind which inequality has
hidden itself up to the present time”).
4
A Structuralist Concept of the Rule of Law
Alani Golanski*
ABSTRACT
The prevalent approach to the concept of the rule of law among legal theorists puts
attributes first, assigning certain features of laws and sometimes legal systems as
rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel,
structuralist view of the rule of law. While honoring theoretical constraints that guard
against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills,
this approach shows that the concept implicates inequalities sustained by a society’s
social, economic, and political structures. This is accomplished by demonstrating
that the rule-of-law project holds a structural position in the collective normative
discourse as a vehicle by which people morally evaluate the interplay between the
actual capabilities of individuals and groups to participate in law, and the legal
system’s treatment of those individuals and groups.
Law’s procedural outputs may formally provide the public with access to the
legal system, but the rule-of-law project goes to the actual capabilities of the people
to access the system in reality, to have a fair opportunity to participate in the inputs
into the system, and to have that participation impartially adjudicated. Conditions
impacting a diversity of stakeholders – and particularly the most disadvantaged
within the population – perturb the virtues typically associated with the rule-of-
law ideal when those conditions, and the power exercised to maintain them, impair
capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral
operator, (1) makes sense of the schism we normally accept between the concepts
of law and the rule of law, (2) reorients the source of rule-of-law thinking from
theorists bent on fixing a conceptual definition to communities engaged in first-order
interactions with the legal system, (3) helps explain why citizens come not only to
expect law to constrain official coercive powers but also to demand that law promote
their actual capabilities to participate in the legal system on an egalitarian and
dignitarian footing, and hence (4) implicates a critique of conditions of political and
material inequalities that cannot but impair the healthy functioning of the rule-of-law
project.
KEYWORDS
The Rule of Law; Jurisprudence; Legal Theory; Waldron; Dworkin; Plato;
Aristotle; Dicey; Raz; Rousseau; Amartya Sen
*
LL.M., James Kent Scholar, Columbia University School of Law; M.A. Philosophy,
Graduate Center of the City University of New York; Director, Weitz & Luxenberg,
P.C., New York, New York. I thank David Beatty, Karuna Nundy, Gianluigi Palombella,
Brian Tamanaha, John Tasioulas, and Michel Troper for comments, encouragement of
the project, and for sharing their own materials. And I specially thank Martin Krygier
for the same, and also for his extraordinary generosity in affording the piece the benefit
of his readings and comments, as well as for his kindness and friendship.
© 2021 Alani Golanski, published by Sciendo.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
, 10 Br. J. Am. Leg. Studies (2021)
CONTENTS
Introduction.............................................................................................3
I. Realigning Concepts of Law and The Rule of Law..........................8
II. The Rule of Law as a Moral Operator............................................19
III. The Rule of Law Implicates Conditions That Impact Access
to Law.................................................................................................28
Conclusion...............................................................................................34
2
, A Structuralist Concept of the Rule of Law
Introduction
As urgently as ever, the rule of law is a paradigm worth revisiting. As one leading
theorist has said, “[r]ecent developments in Poland, Hungary, and elsewhere have
raised disturbing questions about the conditions and nature of the rule of law and of
threats to it.”1 Elsewhere’s domain is now widely deemed to include the American
experience, its iconic claim of governance by the rule of law having lost its seeming
immunity from grave challenge.
What do theorists reference, however, when they speak of the rule of law? It
hasn’t always been clear whether they have trained their sights on formulating a
robust concept or, with some distinction, on grappling with what it means to have
rule by law and then importing those characteristics into an idea of the rule of law.2
The somewhat diaphanous border between the two notions has been well-rehearsed,
the rule of law often being described in terms of rule-by-law’s formal features and
arguably thin constituent elements, and sometimes alternatively in terms of thicker
procedural and substantive rule-of-law conceptions.3
The prevalent approach puts attributes first, assigning certain largely non-
negotiable features of laws, lawmaking, official accountability, and sometimes
legal systems as rule-of-law virtues, and then contemplating whether to go further,
and if so how much further without diluting the distinctive value of the rule of law.4
Seen that way, it’s useful to reflect upon the extent of the overlap between qualities
of the rule of law and those requisite to considering an arrangement of governance
to be a legal system.
This article advances a novel view of the rule of law.5 I think that the rule of
law is an evaluative lens by virtue of which participants in the legal system and
1
Martin Krygier, What’s the Point of the Rule of Law?, 67 Buffalo L. Rev. 743, 745
(2019).
2
See generally Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory
96 (2004) (opining that “it is correct to conclude that formal legality has more in common
with the idea of rule by law than with the historical rule of law tradition”).
3
See Robert Barros, Dictatorship and the Rule of Law: Rules and Military Power in
Pinochet’s Chile, in Democracy and the Rule of Law 188, 189-90 (José María Maravall
& Adam Przeworski eds. 2003) (distinguishing the “narrow,” “formal” conception of “rule
by law” from a “more demanding” notion of the rule of law); David Dyzenhaus, Schmitt
v. Dicey: Are States of Emergency Inside or Outside the Legal Order, 27 Cardozo L. Rev.
2005, 2031 (2006) (writing that someone endorsing a fairly think conception of the rule
of law will likely conclude “that there is a point on a continuum of legality where rule by
law ceases to be in accordance with the rule of law”); Stephen Holmes, Lineages of the
Rule of Law, in Democracy and the Rule of Law 19, 49 (José María Maravall & Adam
Przeworski eds. 2003) (noting Rousseau’s idea that, “in existing societies, rule of law and
rule by law occupy a single continuum and do not present mutually exclusive options”); cf.
Joseph Raz, The Authority of Law: Essays on Law and Morality 222 (2d ed., Oxford
U. Press, 2009) (saying “[c]onformity to the rule of law is a matter of degree”).
4
See John Tasioulas, Penultimate version: The Rule of Law, in The Cambridge Companion
to the Philosophy of Law, at *4 (John Tasioulas ed., 2020) (John Tasioulas ed.,
forthcoming), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216796 (visited
Jan. 14, 2020).
5
The context in which I use the phrase the rule of law should make clear that the reference
is not to a particular rule or type of legal institutional pronouncement, but rather to the
larger term as commonly used in ordinary discourse.
3
, 10 Br. J. Am. Leg. Studies (2021)
individuals in the larger community assess the legal system’s functioning. A rule of
law appraisal is a certain type of evaluation that, for the most part, is appropriately
delimited by imperative legal procedural concerns. A disciplined focus on broadly
conceived procedural concerns (1) retains the distinctive values connoted by a rule-
of-law evaluation, (2) appears to align empirically with the way most people think
of the rule of law, (3) implicates the material conditions that impact people’s actual
capabilities to participate in governance, and thereby (4) accommodates a wide
ethos that tasks the rule of law with fairly heavy lifting. As such, the concept
holds a structural position in the collective normative discourse, functioning as
a vehicle for morally evaluating the interplay between the actual capabilities of
individuals and groups to participate in law, and the legal system’s treatment of
those individuals and groups.
Being vigorously procedural, the rule of law focuses not solely on static
features such as the clarity and generality of legal norms, but on questions of
access to justice and the legal system’s openness to the ordinary citizen or other
participants in the legal process.6 Ordinary individuals seeking redress are entitled
to the opportunity to advance their claims and to have their arguments treated with
dignity and considered fully, without regard to their social or economic status.7
Yet the very social and economic conditions that determine that status impact
the integrity of the rule-of-law project. If the individual is not afforded open and
dignified access to the legal system, then the rule of law is diminished—which
means that the rule-of-law evaluation of the legal system comes out poorly.
Hence the rule-of-law project concerns not solely the quality of the legal
system’s outputs, but also the capabilities of the people, acting responsibly on
their own behalf, to participate free of avoidable external obstacles. Those outputs
include law’s formal rules and procedures that condition the nature and ease of
entering into law’s argumentative or legislative structures. In other words, although
the general rules governing equality of access to justice, and the standards that
apply to everyone and that structure participation in the legal system, guide the
nature and form of inputs, these rules are themselves law’s outputs. This may
be enough to realize a procedural version of the rule of law affording “a mode of
governance that allows people a voice, a way of intervening on their own behalf in
confrontations with power.”8 Yet the well-being of the rule-of-law project demands
more to the extent that asymmetries of political power and economic well-being
trammel people’s capabilities to take advantage of the pathways that may formally
be open to them.9
6
Citizenship is not requisite to seeking legal redress in the American legal system. See
Graham v. Richardson, 403 U.S. 365, 371 (1971) (reaffirming that the Constitution
“entitles both citizens and aliens to the equal protection of the laws of the State in which
they reside”). But, for economy’s sake, I will often just use “citizen” to refer to anyone
having legal rights in the society.
7
See Jeremy Waldron, Dignity, Rank & Rights 33 (2012) (hypothesizing that “the
modern notion of human dignity involves an upwards equalization of rank, so that we
now try to accord every human being something of the dignity, rank, and expectation of
respect that was formerly accorded to nobility”).
8
Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 8 (2008).
9
See Jean-Jacques Rousseau, A Discourse on Inequality 133 (Maurice Cranston
trans., 1984) (1755) (discussing “all the different masks behind which inequality has
hidden itself up to the present time”).
4
