The Rule of Law without Legalism Putting (Government) Cruelty First

The essay wishes to use Judith Shklar's recommendation to put cruelty first, among the moral vices, to discuss some features of the Rule of Law (ROL) and propose a distinction between ROL and legalism. It will follow three argumentative strategies. The first is to argue that government arbitrariness is grounded on some (moral) vices, such as greed, ambition, indifference, overzealousness, and cruelty, with a focus only on the first and the last. The second is that the emphasis on partisanship and factionalism reflects a peculiar concern for greed, while government cruelty is overlooked. The third is the contention that the peculiar concern for greed, with the attached focus on conflict of interests and corruption as the main threats to the ROL, as held by the Venice Commission, is grounded on a pervasive legalist ethos, which will be described in Shklar's terms as the morality of rule following and of dueness and claims making. The proposal to put cruelty first shall be used to sever the ROL from legalism, and to restore a more appropriate ranking among the institutional evils that sound legal systems are expected to counteract.