The Rule of Law and Concepts of Justice: Justice as
Morality and the Hart/Devlin Debate
What is Law
‘The body of rules, whether customary or formally enacted, which regulates the actions of
people within a community, city, state, etc and which is enforced by the imposition of
penalties by a ruler or government.’
Jurisprudence: the study of law
Legal Positivism focuses on the Rules and Applications of Law in a legal system.
- Law is a society constructed ( case law, legislation, custom, etc ) - Bentham, Austin,
Hart.
Natural Law Theory: Law is more than just a system of rules - inherent universal moral
principles that form the basis of a just legal system ( based on reason ) - Aristotle, St
Thomas Aquinas, Kant, Locke, Fuller, Finnis
The Rule of Law
What is the Rule of Law?
The rule of law is that all persons and authorities within the state, whether public or private,
should be bound by, and entitled to the benefit of, laws publicly promulgated and publicly
administered in the courts.
- Lord Bingham, Sir David Williams Lecture 2006
Argument for the Formal Rule of Law
● Procedural argument - Law is a set of rules that should be applied and should be
kept separate from morality ( Raz )
● Positivist argument - Law is a set of rules which confer rights ( rights are not intrinsic)
( Hart )
Argument for Substantive Rule of Law
● Law has intrinsic ( higher ) values, and rights are part of the rule of law ( Dworkin,
Lord Bingham )
● Rights and Dignity ( Natural law/Rights Theory ) - Human beings as moral agents;
dignity of humankind. No human being should be objectified ( used as a means to an
end ) ( Kant )
~ The degree of civilisation in a society can be judged by entering its prisons.
Example: Nuremberg and Tokyo Trials ( 1945-49)
Can judges be held liable for enforcing the ( unjust ) law of the state?
● Answer at Nuremberg (applied to War Crimes; Crimes Against Humanity )
- If the law itself is unjust, then judges should not enforce it
- The rule of law includes values common to humanity ( Rights )
Morality and the Hart/Devlin Debate
What is Law
‘The body of rules, whether customary or formally enacted, which regulates the actions of
people within a community, city, state, etc and which is enforced by the imposition of
penalties by a ruler or government.’
Jurisprudence: the study of law
Legal Positivism focuses on the Rules and Applications of Law in a legal system.
- Law is a society constructed ( case law, legislation, custom, etc ) - Bentham, Austin,
Hart.
Natural Law Theory: Law is more than just a system of rules - inherent universal moral
principles that form the basis of a just legal system ( based on reason ) - Aristotle, St
Thomas Aquinas, Kant, Locke, Fuller, Finnis
The Rule of Law
What is the Rule of Law?
The rule of law is that all persons and authorities within the state, whether public or private,
should be bound by, and entitled to the benefit of, laws publicly promulgated and publicly
administered in the courts.
- Lord Bingham, Sir David Williams Lecture 2006
Argument for the Formal Rule of Law
● Procedural argument - Law is a set of rules that should be applied and should be
kept separate from morality ( Raz )
● Positivist argument - Law is a set of rules which confer rights ( rights are not intrinsic)
( Hart )
Argument for Substantive Rule of Law
● Law has intrinsic ( higher ) values, and rights are part of the rule of law ( Dworkin,
Lord Bingham )
● Rights and Dignity ( Natural law/Rights Theory ) - Human beings as moral agents;
dignity of humankind. No human being should be objectified ( used as a means to an
end ) ( Kant )
~ The degree of civilisation in a society can be judged by entering its prisons.
Example: Nuremberg and Tokyo Trials ( 1945-49)
Can judges be held liable for enforcing the ( unjust ) law of the state?
● Answer at Nuremberg (applied to War Crimes; Crimes Against Humanity )
- If the law itself is unjust, then judges should not enforce it
- The rule of law includes values common to humanity ( Rights )
