The principle of the rule of law as a foundation for the peaceful improvement of social order: Rule of law versus legal instrumentalism

Abstract

The article presents arguments for the thesis that the rule of law can be the foundation of social order, both from the perspective of individual countries and the world order. The argumentation is based on an analysis of the interpretation of the doctrine of the rule of law, the content of the documents of the United Nations (UN) and the European Union (EU), and a critique of legal instrumentalism. Numerous UN and EU documents show that there is a willingness to use the rule of law to build world peace and an awareness that peaceful coexistence requires a change in the approach to national sovereignty. The principle of full independence should give way to the institution of shared sovereignty. However, there is a deep disconnect between the doctrine of the rule of law and the functioning of legal systems, not only in immature democracies but also in the United States, which is seen as an exemplar of liberal democracy. The instrumental treatment of law undermines faith in justice and leads to the degeneration of institutions and a crisis of liberal democracy. Both legislative processes and legal practice often deviate from the rules of good law formulated by Fuller. Examples of reprehensible legislative practices and disputes over the rule of law in the EU testify to the great importance of the rule of law in formalist terms. The connection between adherence to Fuller’s principles and moral goals is stronger than critics of the formalist version of the rule of law doctrine believe.