Chapter

The Supposed Formality of the Rule of Law

John Gardner

in Law as a Leap of Faith

Published in print September 2012 | ISBN: 9780199695553
Published online January 2013 | e-ISBN: 9780191741296 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199695553.003.0008
The Supposed Formality of the Rule of Law

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Certain accounts of the idea of the rule of law, such as Lon Fuller’s, have come to be described as ‘formal’ or ‘formalistic’. This chapter casts doubt on the aptness of this designation while trying to discover what (apt) thought might lie behind it. The proposal is floated and defended that what commentators are getting at is really the modal (rather than the formal) character of the ideal as explained by Fuller. It is a modal ideal for a modal kind (law). The modal is opposed to the functional, and efforts are made to rescue Fuller from the damaging charge that his account of law is a functional one, and that he is thereby rendered a ‘legalist’.

Keywords: formal; substantive; modal; functional; legality; legalism; internal; external; morality; Fuller

Chapter.  10833 words. 

Subjects: Jurisprudence and Philosophy of Law

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