Reflecting on the Rule of Law: Its Reciprocal Relation with Rights, Legitimacy, and Other Concepts and Institutions

• Published date: 01 January 2006
• Date: 01 January 2006
• DOI: http://doi.org/10.1177/0002716205282054
• Subject Matter: Articles

10.1177/0002716205282054 603JanuaryTHE ANNALS OF THE AMERICAN ACADEMYREFLECTING ON THE RULE OF LAW

Arguments concerning law and social change call for a

relationship between legitimacy, the rule of law, and

respect for rights. Tothe extent that a government is sub-

ject to the rule of law,the human and civil rights of its cit-

izens are advanced. When citizens can bring disputes

concerning rights to court rather than fight in the streets,

the rule of law is enhanced. Respect for rights and the

rule of law are likely to make a government more accept-

able and hence more legitimate. A basic requirement of

legitimacy is that government advance everyone’s share

of primary social goods, their opportunity to participate

in society and hence their basic rights. Rights are not

only statements of ideals or entitlements but goals and

tools for pursuit of those goals, means for pursuing law

reform, advancing the rule of law, and enhancing soci-

ety’s legitimacy.

Keywords: personalism; legitimacy; rights; horizons;

rule of law; primary social goods

Introduction

Great progress has been made in the estab-

lishment of the world rule of law since the

important seventeenth-century developments

in international law. Since the end of World War

II we have had one of the great periods in the

development of international law and the world

rule of law. The development of the European

Union and the progress made under the Euro-

pean Covenant on Human Rights has been par-

ticularly remarkable.

ANNALS, AAPSS, 603, January 2006 37

Samuel J. M. Donnelly is a professor of law and senior

scholar of law and jurisprudence at the Syracuse Univer-

sity College of Law, where he has taught since 1964. He

graduated from Harvard Law School in 1960, served as

a clerk with the New Jersey Supreme Court in 1960-61, a

teaching fellow at Harvard Law School in 1961-62, and

an associate with Carter,Ledyard and Milburn 1962-64.

His books include A Personalist Jurisprudence, the Next

Step (2003) and The Language and Uses of Rights (1994).

NOTE: This article originally appeared in the Syracuse

Journal of International Law and Commerce 32 (2005):

233-68 and is republished here in shortened and edited

form with the permission of the Syracuse Journal of

International Law and Commerce.

DOI: 10.1177/0002716205282054

Reflecting

on the Rule

of Law: Its

Reciprocal

Relation with

Rights,

Legitimacy,

and Other

Concepts and

Institutions

By

SAMUEL J. M. DONNELLY

The role of law in the process of social change is central. The great American

example of law influencing social change began, of course, with the end of our Civil

War, the freeing of the slaves, and continues through the establishment of segrega-

tion, the attacks upon it, desegregation, and the development of affirmative action.

Another very important sequence of legal and social changes is the development

and recognition of human rights in the European Union since World War II. That

momentous development is worth studying from the perspective of law and social

science.

In the first part of the following presentation I would like to offer some observa-

tions on those two examples of law and social change over a significant period of

time. Using those two examples as illustrations I want then to reflect from a philo-

sophical perspective on a series of concepts that I think are important in under-

standing the role of law in social change.

In my recent book, A Personalist Jurisprudence, the Next Step (Donnelly 2003),

I reflected upon the interrelation between a series of concepts including the Rule

of Law and its relation to legal protection of rights, the Language and Uses of

Rights, Legitimacy, Primary Social Goods (a concept helpful in understanding

rights), Horizons, Crossing Horizons and the use of rights to hammer on foreign

horizons, or the establishment of rights across horizons, and analysis of the Point of

View from which statements about rights are made. In A Personalist Jurispru-

dence, the Next Step, I discussed, among other matters, how these concepts and

their interrelation can be used to understand and construct a method for judicial

decision making. The same concepts can be used from the perspective or point of

view of an attorney to discuss strategies for law reform. In this article, I want to

offer those concepts and their interrelation from the perspective of a legal philoso-

pher and lawyer as a possibly helpful means for analyzing the gradual establish-

ment internationally of the rule of law accompanied by the advance of human and

civil rights. These concepts may also prove helpful to social scientists as well as legal

philosophers in discussing and understanding the role of law in the process of

social change. Social change may also include the gradual establishment of the rule

of law both within individual countries and internationally. Part of my argument is

that advances in the protection of individual rights also support the developing rule

of law and vice versa.

I organize that discussion around an analysis of the language and uses of rights

including how rights are used in the process of social change and how the pursuit of

rights relates to establishing the rule of law. What do we mean, then, by the rule of

law? And how is the rule of law related to legal protection or protection by courts of

individual rights? I address those questions in the second part of this article.

The third part addresses what we mean by rights. How do we discern funda-

mental rights and why should we recognize those rights? How do rights come to be

perceived as legitimate? Primary Social Goods is a concept I have taken from John

Rawls and adapted to my own understanding (Rawls 1971, 396-447).

The fourth part discusses Rights, Horizons, and Point of View Analysis. In my

understanding, rights always are perceived within horizons—the limitations of

human understanding and knowledge—and from a point of view. In the interna-

38 THE ANNALS OF THE AMERICAN ACADEMY