Challenging the Formal Conception of Rule of Law:theses of the Formal Conception of Rule of Law and its inherent di-lemmas
The Formal Conception of Rule of Law(FCRL)consists of a set of formal principles of legality that are sensitive to the"organizing rationale".The unique proposition of FCRL consists of"one organizing rational and two core theses":the principles of legality serve the organizing rationale of ensuring that"the law should be able to guide people's action",which means that,on the one hand,FCRL abandons commitment to and limitation of substantive valuable goals("Goal Suspension Thesis"),but on the other hand,FCRL necessarily promises authoritative guidance and evaluation of law for all("Ruling of Authority Thesis").By abandoning restrictions on what goals the law serves,FCRL runs the risk of serving wrong or evil goals,which seriously threat-ens its moral status.The authoritative ruling promised by the formal rule of law fails to establish a necessary connection between the rule of law and some values such as individual autonomy and dignity,and therefore fails to ensure that the rule of law has a moral value which is goal-independent and always fails to eliminate the moral defects of its abuse.Thus,mere compliance with the conditions of the Formal Conception of Rule of Law is not a valid moral ideal,and the theory fails.
formal conception of the rule of lawmoral idealorganizing rationalautonomy
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维普
