Natural Law Liberalism and the Defence of the Rule of Law

Chapter 5 focusses on the centrality of the Rule of Law to any regime likely to provide competent governance. A commitment to the Rule of Law is common to all forms of natural law theory, and to all forms of liberalism, and is thus a natural locus of mutual support. This chapter addresses some of the challenges that have been brought against the legitimacy of Rule of Law as found in the legal realism and critical legal studies traditions. These are connected to the underlying tension between the liberal’s commitment to the division of powers as standardly understood and an independent judiciary in which judges are the final arbiters of the fundamental law of the land. I draw on resources developed in Chap. 2 to resolve these tensions by reconceiving the division of powers. The division of powers between the legislature and the judiciary is no longer based on the untenable distinction between making and applying the law, or even making and interpreting the law, but rather on the type and token conditions of instances of practical reasoning. The discussion is bolstered by a comparison with other legal systems—in particular the Rule of Political Law and the Rule of Traditional Law—with respect to their performance on the United Nations Human Development Index.