Neutrality Isn’t Neutral: On the Value-Neutrality of the Rule of Law

Broadly, this Article is in four parts, with the middle being the meat of it. First (in Part II), I sketch the basic appeal of the longstanding ideal of the Rule of Law. Next (in Parts III and IV), I present the principal arguments on behalf of a value-neutral conception of the ideal and try to show the failings of these arguments. Third, (in Parts V and VI) I make the positive case for the Rule of Law as a moral good and directly address several objections to this view.

And in the final portion (Parts VII and VIII), I clarify my position in light of the two chief ways of understanding the ideal and briefly indicate the damage done by harboring misconceptions about its value. The analysis in both the critique of value neutrality and the defense of the Rule of Law’s moral character relies heavily (implicitly, when not explicitly) on the nature of objectivity in this context and on the principle that form follows function. An appreciation of these, in turn, should help us to see that denials of moral value in the Rule of Law inevitably incorporate such values, however inadvertently.