On Concepts, Hierarchies, and the Rule of Law

Abstract

This paper proposes a conceptual inquiry into specific aspects of the notion of the rule of law. First, it introduces several considerations regarding the methodological approach such an inquiry entails. Subsequently, it adopts a minimal concept of the rule of law to advance certain ideas relating not to the concept in general, but rather to the content of the normative ideal that any state falling under this concept ought to satisfy. My goal is to highlight two core characteristics that the legal system of a state governed by the rule of law must fulfil. On the one hand, every state governed by the rule of law must necessarily be a constitutional state; that is, it must contain a subsystem of hierarchically superior norms—rigid in nature—that establish the conditions of validity for ordinary norms. On the other hand, it must recognize an internal hierarchy among the norms comprising this constitutional subsystem. This latter aspect is not widely acknowledged. However, if my analysis is correct, it constitutes a necessary condition for the very existence of a state governed by the rule of law.