Dissent and the Rule of Law

Both the right to dissent and the “rule of law” are celebrated and frequently invoked values. Yet widespread popular dissent, such as that seen in the recent Black Lives Matter protests sparked by the police killing of George Floyd and others and a strong backlash against protestors by some political leaders, has deeply challenged the compatibility of those values. This tension raises deep theoretical questions about the essential concept of the rule of law, questions that have not yet been addressed by legal theorists. Consensus is greatest with respect to some of the formal characteristics of the rule of law, and formal definitions of the rule of law focus on formal properties of governance by law, primarily properties associated with the legality principle. Yet many reject the formal definition as overly neutered, contending instead that if it is to mean anything, the concept of the rule of law must not merely restate formal principles of legality, but instead must also include some substantive content, such as a minimum respect for private property or basic human rights. While both sides of this debate make important points, I contend in this Essay that there is a critical middle ground between the two positions. While the concept of the rule of law may not necessarily incorporate the entire spectrum of civil and political rights, the very logic of the rule of law demands respect for and adherence to a core set of substantive values beyond the merely formalistic properties of legality identified by legal philosophers like Joseph Raz. At the same time, the concept of the rule of law is not, as the formalists correctly argue, infinitely pliable. It cannot be made to stand for all things thought desirable by critics and interlocutors in political debate. But the parameters of the rule of law concept need not be arbitrarily drawn. Rather, they are inherent in the concept itself. What we discover when we examine what lies at the intersection of the formalist and substantivist approaches is a core set of overlapping rule of law project. This key substantive component is toleration of and respect for the practice of dissent