Radin, have oVered principled or precept driven reductions of Fuller’s list
without basically challenging it.
However, the formal rationality of Fuller’s eight criteria has been criticized
by other contemporary legal and political theorists for situating the rule of
law in a ‘‘political vacuum,’’ and rendering it potentially compatible with
governments of the most repressive and irrational sort (Shklar 1998 , 33 ). One
example of the potential for abstract requirements to generate political
illiberalism can be found in the demand for normative or moral coherence.
In modern pluralistic societies, including those whose governments are
expressly committed to constitutionalism and rule of law, legal and political
decisions must often rest on compromise, where no group within society can
expect to have its comprehensive moral view imposed as the law of the land
(Marmor 2004 , 31 ). To do so would be to invite accusations of political
repression disguised in a cloak of suspect moral integrity. Nor are the
practical failings of Fuller’s decontextualized construct necessarily thought
to be remedied by adding to them a prescription traceable to Ronald Dworkin
that the rule of law and the rule of reason will reign ‘‘if judicial decisions are
grounded in appropriate rules, principles and standards and rationally
defended’’ (Shklar 1998 , 34 – 5 ). Certainly, in a democracy, the judiciary is
not alone in claiming rational standing (Waldron 1999 ).
Dworkin’s vision of law’s empire draws in important ways from Rawls’
A Theory of Justicewith its notably thin normative model of the just state and
its construal of rule of law as judicialWdelity to preexisting law, or as Rawls
notes, deciding like cases alike. There, Rawls suggests that ‘‘[t]o be conWdent in
the possession and exercise of these freedoms, the citizens of a well ordered
society will normally want the rule of law maintained’’ (Rawls 1971 , 237 – 40 ).
Dworkin places the capacity both for policing and for projecting the rule of law
into the future in the hands of Herculean judges. His ‘‘rulebook conception’’ of
a scheme of rights and responsibilities thatXow in common law or chain novel
fashion from past judicial decisions of the right sort concerning the ordinary
law of the land bears an aYnity to the approach of Dicey (Dworkin 1985 , 9 – 32 ).
That is, Dicey too provided a set of formal characteristics for identifying
the rule of law, including the prohibition that ‘‘no one could be made to
suVer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the ordinary courts of the land’’ (Dicey
1915 , 183 ). Unlike Dicey, however, the province of judicial decision-making in
Dworkin’s American-inXuenced vision may be very wide. So, to ground any
interpretation of law, appeals to principles of the political order, to implicit
320 shannon c. stimson