The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller, but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of laws, or the term I prefer, Pharisaism. I suggest that Pharisaism is a particular danger in the modern regulatory state and that it unavoidably undermines the Rule of Law and its benefits. To avoid the danger of Pharisaism, I posit two active principles for the legal system to adopt: 1) an obligation to keep its regulatory framework to the minimum, and 2) a recognition of the legitimate place of acts of non-compliance within the legal system. I conclude with some thoughts as to whether the notion of justifiable non-compliance fits more effectively within the jurisprudential system of Joseph Raz or of John Finnis.
David F. Forte,
The Rule of Law and the Rule of Laws,
38 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol38/iss1/8