The Rule of Law as a Thick Concept
4:00 pm to 6:00 pm, 28 May 2019
This event is part of the Legal Philosophy Forum series
Bentham HouseUCL LawsLondonWC1H 0EGUnited Kingdom
Dr Hillary Nye (University of Alberta)
About the Abstract
In this paper, I defend an account of the rule of law as a ‘thick’ concept: that is, a normative concept with specific descriptive content. The descriptive content points us towards the idea of being controlled by rules or constrained by our institutional history. The normative element tells us to attend to these matters of fact ‘in the good way’. To do so in the bad way is to shade into legalistic judging. We should be attentive to rules, but we should do so in a way that can be understood as exhibiting the virtue of rule-of-law-governed decision making, and not the vice of legalistic judging.
I then proceed to set out three different values that have been associated with the rule of law that we can think of as defining what it is to be attentive to rules in the good way. These are predictability, equal treatment, and autonomy. If we keep these values in mind, we can thread the needle between rule of law-compliant judging and legalistic judging.
This kind of judicial decision making is, I argue, fully moral. A judge has to make an all things considered judgment about what she ought to do. But what she ought to do will be shaped by rule of law considerations in addition to other concerns, in a way that isn’t true for those occupying other roles. So the judge is making a decision about what ought to be done, but for her, what ought to be done will be affected by rules and institutional history. Precisely how those matters of fact affect what she ought to do is the domain of the rule of law.
About the Author
Hillary Nye is an Assistant Professor in the Faculty of Law at the University of Alberta. Her research is in legal philosophy, focusing particularly on issues of jurisprudential methodology, philosophical pragmatism, and the Rule of Law. She holds a doctorate (JSD) and a masters (LLM) from New York University School of Law, as well as a BA and LLB from The University of Queensland, Australia. Most recently, before joining U of A Law, she was a Postdoctoral Fellow in the Law Department of the London School of Economics and Political Science, where she taught jurisprudence. Her publications include peer-reviewed articles in the Oxford Journal of Legal Studies and the Canadian Journal of Law and Jurisprudence