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.


Natural Law Symposium: Natural Law and Legal Reasoning

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