2 Jurisprudence 1 (2011)

handle is hein.journals/jisprud2 and id is 1 raw text is: (2011) 2(1) Jurisprudence 1-16

The Jurisprudence Annual Lecture 2010
Freedom, Coercion, Necessary Goods
and the Rule of Law
Raymond Plant'
In this lecture I want first of all to focus on the idea of the rule of law found in many
liberal social, political and legal thinkers. I believe that a critical analysis of some of
the central ideas of the liberal Rechtsstaat position can in fact throw a good deal of
light on issues to do with the rule of law and its relationship to some of the funda-
mental building blocks of liberal political and legal thought and in particular
freedom, rights andjustice. First of all, I shall give a sketch of how these elements
hang together in Rechtsstaat types of ideas and I shall go on to offer what will basi-
cally be an immanent or internal critique of this system of thought. I shall argue in
favour of the view that the idea of the rule of law can in fact be made compatible with
a welfare state-an idea which many economic liberal thinkers siuch as Havek have
First of all, the neo-liberal idea of the rule of law is a normative one-it is not a
positivist idea of the rule of law as legalit---that is to say, of government and public
authorities acting within a framework of law enacted by whatever or whoever in a par-
tcular society is a legitimate soui rce of law. On the contrary, the rule of law is an ideal
and, as such, it has several crucial features. These include the following:
* It is independent of specific purposes. To use Michael Oakeshott's terminology,
it is not telocratk-that is to say, directed to the achievement of particular ends/
goods/purposes. Rather, it is nomocratic-a framework of general rules which
allow individuals to pursue freely the diverse ends which they have in a modern
pluralistic society so long as in pursuing such ends they do not infringe the sim-
ilar freedom of others. Thus the rule of law is justified as a set of conditions
necessary for free activity: it is not to be justified in term of the achievement of
a specific set of goals.I
Kin's College London, Sciences Po and The House of Lords, UTK Parliament.
1 Michael Oakeshott, Lecures in the Histori of Poilial Though, T Nardin and L O'Sullivan (eds)
(Imprint Academic, 2006).

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