Ruler’s sword, citizen’s shield: the rule of law & the constitution of power

About the talk

The article begins by asking how we should go about trying to explain the nature of the Rule of Law, and proposes a particular method of enquiry. 

The second part employs that method in order to give an account of what is called the ‘limited government tradition’s’ Rule of Law project.

The third part of the article considers the origins of the rivalry between the traditional and formal visions of the Rule of Law.

It is speculated that the rivalry stems from two closely related developments. The first development is the decline of the traditional way of thinking about law.

The second development is the rise of interpretations of law and of the Rule of Law from the distinctive tradition-independent standpoint of the modern bureaucratic manager (the ‘bureaucratic standpoint’).

That standpoint subscribes to no moral limits concerning the choice of ends and means, looking solely for instruments of efficient behaviour guidance, which may (or may not) include the law.

In the fourth part of the article, attention shifts to the formal vision of the Rule of Law, the most influential account of which appears in Joseph Raz’s ‘The Rule of Law and its Virtue’.

It argues that the formal vision of the Rule of Law, as presented by Raz, is best understood as an expression of the bureaucratic standpoint.

That standpoint understands the Rule of Law according to the lights of a certain kind of instrumental, bureaucratic rationality.

The argument tries to convince those persuaded by Raz’s account that there are good reasons to reconsider (i) the method he employs to explain the nature of the Rule of Law and (ii) the case he presents in favor of the formal account and against its substantive rival.

About the speaker

Julian Sempill is a Senior Lecturer at Melbourne Law School (the University of Melbourne), where he has taught since 2009. He holds an LLB (Hons) and a BA from Melbourne Law School and has recently submitted his DPhil thesis at the University of Oxford. He has also served as a Researcher at Centre for Socio-Legal Studies at Oxford and is Solicitor of the Supreme Court of England & Wales, as well as a Barrister & Solicitor of the Supreme Court of Victoria.

Julian’s research focuses on moral, political, and legal philosophy, and, in particular, on the relationship between law, social power, and human rights. In 2014, he was invited by the Palais de Tokyo, Paris, to give two presentations as part of Thomas Hirschhorn’s exhibition, Flamme Eternelle. He has also been invited to present in 2014 and 2016 at the Atelier de Theorie Critique, Paris (Villanova University, Department of Philosophy/Universite Paris Descartes/Institut Mines-Telecom).

In “Ruler’s Sword, Citizen’s Shield: the Rule of Law & the Constitution of Power” (forthcoming, Journal of Law & Politics, University of Virginia School of Law), he offers a fresh perspective on the long-standing rivalry between so-called “substantive” and “formal” conceptions of the Rule of Law.