Legality Without Liberalism: The Rule of Law and the Environmental Emergency (preprint)

ABSTRACT

The rule of law is often said to be a liberal ideal, intrinsically associated with the enlightenment and, being necessary for each, supplying the link between liberalism and constitutionalism. In this paper, that idea is challenged. The rule of law, even in its most ‘formal’ conception embraced by Lon Fuller, cannot be severed from an account of law which is thoroughly infused with moral purpose and value. The specific values which inform this principle are often portrayed as confined to action guidance, restraint of state power, and the protection of individual rights. Framed as such, the rule of law often conflicts with the moral and political obligation of political authority to preserve the conditions necessary for the community to survive and flourish. An alternative conception of the rule of law, rooted in the classical legal tradition, sees no conflict here and can thus provide the intellectual framework needed to explain how inaction on behalf of public authority can be as much of a threat to the rule of law as abusive action. With this in mind, the duty upon the state to respond to threats such as climate change or the COVID-19 pandemic is itself best understood as one arising from the requirements of legality. Analysis of state action or inaction in the face of such threats must thus begin with this duty in mind as a constitutive aspect of the rule of law. The threats posed by the environmental emergency are best viewed by reference to the communal underpinnings of the rule of law. The liberal desire to frame all moral issues in the language of individual rights should therefore be resisted. The framework of an individual right to a liveable climate may be the best way for liberal constitutionalism to frame the climate crises, but it is by no means the only way. Indeed, it is a manifestly impoverished attempt to concretise what can only be understood as a threat to the common good itself, grounded within the needs of the global community as a whole.