Rule of Law: Hierarchy of Norms in Legal Reasoning

This article offers a conceptual reconstruction of the rule of law as a political-institutional and normative ideal. Adopting an epistemic internal point of view, it clarifies the methodological assumptions underlying this reconstructive enterprise. On the basis of a minimalist conception largely aligned with Joseph Raz’s account, the article argues that a rule-of-law state necessarily exhibits two structural features. First, it must be a constitutional state, incorporating a subsystem of rigid and hierarchically superior norms that serve as criteria of validity for ordinary legal norms. Second, it must recognize an internal hierarchy among constitutional norms, in virtue of which the principles constitutive of the rule of law enjoy hierarchical supremacy even vis-à-vis other rigid constitutional norms. This dual hierarchy has significant implications for legal reasoning: it excludes balancing in conflicts involving rule-of-law principles and requires their unconditional prevalence, without thereby entailing the invalidity of competing constitutional norms. The article concludes by outlining the implications of this account for the concepts of hierarchy, validity, and the identity of a rule-of-law state.