Justice, Peace, and The Rule of Law

Reclaiming a classical vision

The above, Allegory of Justice and Peace, is a magnificent painting by Corrado Giaquinto, leading exponent of the Roman Rococo in the first half of the eighteenth century. Evoking the imagery in Psalm 85 where “Mercy and truth are met together; righteousness and peace have kissed each other”, it speaks to an ancient vision of the dual ends of good government.

Justice is depicted with her crown and sceptre, the classical symbols of political authority representing the powers and responsibilities of a sovereign. She is inspired by objective morality in the form of the white dove and adorned with all of the symbolic trappings of justice’s essential character: an ostrich symbolising fairness; a column representing fortitude and severity; a sword and scales separating good from evil. She is seen surrounded by the vanquished imagery of war and conflict; sundered armour burnt by cherubs operating bellows in front of the Temple of Peace. Cupid, with his arrows stored in a box, represents reconciliation.

Peace holds an olive branch, the result of Justice and the source of flourishing symbolised by the horn of plenty at her feet. Wheat and fruit are being harvested by yet more cherubs. Beneath her, the lion and the lamb lie together, representing the mighty and the meek living in harmony under the watchful eyes of Justice and Peace, neither of them blindfolded. Together, they represent a classical conception of the rule of law which has almost been forgotten; one which sees it as informed by and ordered towards the dual ends of Justice and Peace.

Contemporary rule of law scholarship is quite often tied to enlightenment political theory, supplying a link between liberalism and constitutionalism. Here the rule of law is not defined by the end to which it is ordered or the good that it can foster but by the need to constrain arbitrary abuse of power. This is an important aspect of any account of legality to be sure, but it cannot be exhaustive. It represents a foundational commitment to Justice but is impoverished if divorced from Peace.

We have lost sight of the fact that legality and the rule of law are directed towards both sides of this painting. Justice is foundational, but the rule of law is ordered towards more than just the prevention of arbitrary violence. Properly understood, it is an aspiration towards an ideal of collective flourishing.

Central to liberal constitutionalism is what Ronald Dworkin described as the requirement

“that government must be neutral on what might be called questions of the good life … that political decisions must be, so far as is possible, independent of any particular conception of the good life or of what gives value to life … liberalism takes [this] as its constitutive political morality”.¹

Dworkin argued that this neutrality is what distinguishes liberalism from rival left-wing and right-wing theories which embrace some substantive conception of human flourishing as an important aspect of political and constitutional theory.

Accompanying this is the tendency within liberal constitutionalism to embrace an individualism which purports to but rarely succeeds in remaining neutral not just on the good live but on any conception of the public of common good itself.

There are, of course, liberal perfectionist accounts of political morality and there may even be an unspoken assumption amongst liberal constitutionalists that neutrality on the good life is itself a substantive position on the good life: the best way to ensure collective flourishing is for the State to keep out of the marketplace of good lives. But this is a declaration of commitment to a particular kind of institutional design and the belief that it will naturally lead to people flourishing. It does not have anything substantive to say about what flourishing consists in, except perhaps to adopt a very thick conception of coercion such that many bad choices or lives are reconciled as not truly free. Even within liberal political theory, where the good life is considered, it is usually not thought of in relation to the rule of law.

Neutrality is reflected in attempts to distinguish between formal and substantive conceptions of the idea. Formal conceptions remain neutral as to the ends of law, focusing only on issues of form and procedure. In this sense, the rule of law is portrayed as politically neutral, establishing normative constraints on the exercise of state power without wedding itself to any particular theory of political morality. Substantive theories, in contrast, take on an expanded scope, maintaining the formal and procedural constraints but also demanding the protection of certain fundamental rights, committing to a more fleshed out vision of constitutionalism. These approaches eschew any pretence of neutrality between different conceptions of political morality while nevertheless, at least ostensibly, remaining neutral on questions of the good life. On this view, while there may be objective fundamental rights which must be protected if the rule of law is to obtain, there is either nothing objective about the good or it is of vital importance that the state remain neutral on the good but partisan on rights.

With this in mind, the contemporary distinction between formal and substantive conceptions of the rule of law can be recast as an intra-liberal dispute; rival conceptions of a principle understood to be characterised by some degree of neutrality and a core commitment to the restraint of state power. What unifies these theories is a shared commitment to a liberal constitutional framework, varying only in the extent of restrictions on state power or the concreteness with which individual rights are abstractly articulated. This is the shared purpose against which such theories of the rule of law are measured.

Liberal constitutional theorists may disagree strongly about which institution is best placed to secure individual rights or to check the abuse of state power — often getting bogged down in extended disputes over institutional design — but by and large, they tend to agree that this is the grounding justification of constitutionalism and the rule of law. Rarely is a higher purpose or end from which these purposed are derived posited.

There is, of course, some truth to this conception. One of the most important goods that law secures is freedom from arbitrary violence, be it public or private. Justice is foundational to any conception of legality, even the paper thin germ or justice that legal positivists are willing to accept in a system of general norms impartially and fairly applied. But this captures only a fraction of what the rule of law secures for a community.

A core feature of the classical legal tradition is the understanding that the purpose of political institutions — including systems of posited law — is to ensure the flourishing of all members of a community. On this view, law plays an important role, not just in securing Justice and protecting the vulnerable from the predations of bad actors, but also in securing Peace, by inculcating habits of virtue and helping to secure and maintain social institutions such as the family and local community where flourishing can occur.

In contemporary contexts, this commitment also covers administrative institutions which provide important public goods such as healthcare, education, security, the policy force, the court system, and so on. On this view, law is seen to serve important social functions which extend beyond the provision of Justice via a system of stable rules. As Lon Fuller puts it, the principles of the rule of law “demand more than forbearance" appealing to “a sense of trusteeship and the pride of the craftsman”.²

If we conceive of law – and the rule of law – as tied to this more expansive tradition oriented towards the collective benefit of all, we can begin to make sense of the communal or collective claims which are internal to legality. Rather than being conceived as entirely within the purview of external political morality, a commitment to peace, justice, and the collective flourishing of all members of a community become core to an ideal of custodianship necessary to given meaning and coherence to the disparate principles we call the rule of law. This is only possible if we abandon any pretence to neutrality as to either political morality or the good life. To be a good custodian is to take an interest in improving the lives of those under one’s charge.

There is an interesting detail within this painting: Justice is not blindfolded. She is not blind to the lion and the lamb. She sees them for what they are, recognising that the meek remain vulnerable in the face of the mighty and must be protected. Impartiality need not mean neutrality. Justice, secured only through law, paves the way for Peace precisely because one does not negate the other.

1. Ronald Dworkin, ‘Liberalism’ in S Hampshire (ed), Public and Private Morality (CUP 1978) 127.

2. Lon Fuller, The Morality of Law (Revised ed, Yale University Press 1969), 42-3.