Gerald J. Postema (University of North Carolina – Philosophy) has posted From Law’s Existence to Law’s Rule: Reflections on Kramer’s Understanding of the Rule of Law (Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer Oxford University Press, Mark McBride and Visa A. J. Kurki, eds. (Oxford, Forthcoming)) on SSRN. Here is the abstract:
Matthew Kramer accepts Lon Fuller’s eight standards articulates the core of the rule of law. These standards, he agrees, are internal to law and, taken together, they constitute a “morally cherishable” ideal. But, against Fuller, he insists that the respect in which they are internal to law is not the respect in which they speak the language of moral ideals. The two conceptions offer separable ways of articulating the significance of Fuller’s eight standards. These distinct accounts, Kramer argues, pivot on the shared assumption that individual legal subjects are rational, self-directing agents. Lawgivers acknowledge and assume for their purposes, that legal subjects are rational, self-directing agents, because law’s fundamental function is to guide behavior through addressing rules to them. And, from the liberal-democratic moral point of view, this feature of legal subjects is a fact of fundamental moral importance, demanding our respect.
Building on Kramer’s analysis, this essay argues that, understood in a particular way, the pivotal assumption provides a reasonably solid bridge between these two conceptions. It argues, further, that (1) the Fuller-Kramer account of legality needs the notion of fidelity, which plays a crucial role in the realization of the rule of law, and (2) that Kramer’s plausible individualist account of the rule of law’s grounding value must be embedded in a broader notion of membership that makes room for dignity and equality understood as relational values.
Highly recommended.