David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 27 (6):533 - 581 (2008)
A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context of legal relationships. I argue that the state and its legal subjects are in a particular kind of legal relationship with one another, a fiduciary relationship, and that the content of the state's ensuing fiduciary obligation is the rule of law. Because the rule of law is intelligible in terms of the right, and independently of the good, it follows that compliance with the rule of law necessarily makes a moral difference regardless of how poorly the state lives up to the demands of the good. This is a conceptual rather than an empirical claim, and it leads to the conclusion that respect for human agency in the context of the state-subject fiduciary relationship necessarily entails respect for human dignity, respect for human dignity entails respect for human rights, and therefore a commitment to the rule of law entails a commitment to human rights.
|Keywords||Law Logic Political Science Social Sciences, general Philosophy of Law Law Theory/Law Philosophy|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
John R. Morss (2010). Shadow of a Gunman? Legal Obligations, Wizards, and the Persistence of Evil Systems. Ratio Juris 23 (2):274-281.
Similar books and articles
Thérèse Murphy (ed.) (2009). New Technologies and Human Rights. Oxford University Press.
Jürgen Habermas (2010). The Concept of Human Dignity and the Realistic Utopia of Human Rights. Metaphilosophy 41 (4):464-480.
Kevin T. Jackson (1993). Global Rights and Regional Jurisprudence. Law and Philosophy 12 (2):157 - 192.
Denis G. Arnold (2010). Transnational Corporations and the Duty to Respect Basic Human Rights. Business Ethics Quarterly 20 (3):371-399.
M. Kamminga, Final Report on the Impact of International Human Rights Law on General International Law.
Dolores A. Donovan & Getachew Assefa, Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism.
Ch Perelman (1982). The Safeguarding and Foundation of Human Rights. Law and Philosophy 1 (1):119 - 129.
Colleen Murphy (2005). Lon Fuller and the Moral Value of the Rule of Law. Law and Philosophy 24 (3):239-262.
Added to index2009-01-28
Total downloads26 ( #79,354 of 1,692,491 )
Recent downloads (6 months)1 ( #184,284 of 1,692,491 )
How can I increase my downloads?