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The rule of law as a procedural but content-sensitive virtue: an empirical and philosophical collaborative study

Gur, Noam and Jackson, Jonathan (2019) The rule of law as a procedural but content-sensitive virtue: an empirical and philosophical collaborative study. In: D., Meyerson, C., Mackenzie and T., MacDermott, (eds.) Procedural justice and relational theory: philosophical, empirical and legal perspectives. Routledge, Oxford, UK. (In Press)

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This chapter sets off with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of, and a distinctive approach to, the moral status of the Rule of Law. In Section 2, we empirically analyse nationally representative survey data from the US about law-related attitudes and legal compliance. Consistent with numerous prior studies, we find that people’s ascriptions of legitimacy to the legal system (labelled here ‘legitimacy’) is predicted strongly by people’s perceptions of the procedural justice of police and court officials. We also find that two factors emerge as significant predictors of people’s self-reported compliance with the law: (i) content-independent felt moral duty to obey the law (one constituent component of legitimacy); and (ii) people’s moral assessments of the content of specific legal requirements (labelled here ‘personal morality’). Crucially, however, we observe an interactive relationship between these two factors. At higher levels of personal morality, duty to obey is a better predictor of compliance than it otherwise is (and vice-versa, personal morality is a better predictor at higher levels of duty to obey). This suggests that the morality ‘baked in’ to specific laws interacts with the morality that people ascribe to legal authorities that operate under the Rule of Law. In Section 3, we put forward a philosophical counterpart of the above interactive phenomenon, with a particular focus on the value of the Rule of Law. We advocate a distinctive alternative to two rival paradigms in the jurisprudential discourse—the first of which claims that Lon Fuller’s eight precepts of legality embody a moral virtue not contingent on the law’s content, while the second contends that Fuller’s precepts are merely principles for the efficient execution of law’s substantive goals (whether morally good or bad), and thus have no independent moral value. In contrast, on the view put forward here, Fuller’s principles possess an expressive-relational quality, but their expressive effect does not materialize in isolation from other, contextual factors. In particular, the extent to which it materializes is partly sensitive to the moral quality of the law’s content.

Item Type: Book Section
Additional Information: © 2019 Informa UK
Divisions: Methodology
Subjects: K Law > K Law (General)
Date Deposited: 26 Sep 2019 12:45
Last Modified: 19 Jan 2020 00:45

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