In this paper it is argued that different understandings of the requirements of the Rule of Law can to a large extent be explained by the position taken with regard to two interrelated distinctions. On the one hand, the Rule of Law can be regarded as either a principle of law or as a principle of governance. On the other hand, the requirements of the Rule of Law can be regarded as defining either a minimum standard which something has to (...) meet in order to be law or as an aspirational standard identifying what it means to be good law. In combination these two distinctions define a range of perspectives on the nature of the Rule of Law that are complementary rather than mutually exclusive. (shrink)

In this paper, I will inquire into the basic assumptions underlying Rawls’s argument for the distribution of resources according to the difference principle. Rawls assumes a ‘social division of responsibility’ between society and individual citizens which implies that society need not compensate its members for differences in welfare that are the result of the relative cost of effecting their conception of the good. Rawls’s basic justification for holding people individually responsible for the costs of effecting their conception of the good (...) is that it may be assumed that they are able to revise their ends in light of their relative costs. I will show that this assumption of the revisability of our ends is incompatible with Rawls’s justification of the first principle of justice, which has to assume that people’s conceptions of the good and the ends and aspirations that are based on them are given. Removing this friction from Rawls’s theory leads to a position about the distribution of resources akin to the idea of equal opportunity for welfare developed by writers like G.A. Cohen and Richard Arneson. However, it differs from their versions because it focuses on the importance of people’s ability to form and pursue some determinate conception of the good. I will sketch the outlines of this position and will try to indicate how it could be implemented as a workable conception of justice. (shrink)

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non-moral or non-normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in (...) order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does. (shrink)