Debating what the rule of law requires is partly a product of the fact that the law itself encompasses many things and people prefer different aspects of a legal system. For some, the common law is the epitome of legality; for others, the rule of law means the impartial application of a clearly formulated law; For others, the rule of law is still the epitome of a stable constitution that has been embedded in a country`s politics for centuries. When Aristotle (Politics 1287b) compared the rule of law to the rule of men, he dared to think that “a man can be a ruler safer than written law, but no safer than customary law.” In our time, F.A. Hayek (1973:72 ff.) attempts to distinguish the rule of law from the rule of law, identifying the former with something closer to the evolutionary development of the common law, less constructive and less inclined to conscious control than the enactment of a law. There is also an ongoing debate about the relationship between the law and government mechanisms. For some, formal discretion is incompatible with the rule of law; For others, it depends on how discretion is designed and authorized. For some, the final decision of a court boils down to the rule of law; For others who are aware of the politics of justice, rule by the courts (especially a politically divided court) is as much an example of the rule of the people as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies). I should like to ask the reader whether he can share Professor Hart`s indignation at the fact that the German courts, in view of the confusion of post-war reconstruction, have seen fit not to declare this matter as law. Can it seriously be argued that it would have been more obvious to the trial if the post-war courts had conducted a study of “the principles of interpretation which prevailed under Hitler`s reign” and then solemnly applied them to determine the importance of this law? On the other hand, would the courts really have respected Nazi law if they had constructed the Nazi statutes according to their own completely different standards of interpretation? (page 655) Generality is an important feature of legality, which is reflected in the long-standing constitutional antipathy to attainder bills. Of course, the law cannot function without special ordinances, but as Raz (1979 [1977]:213) points out, the general public requirement is generally understood to mean that “the creation of certain laws should be guided by open and relatively stable general rules.” These rules themselves should be impersonal and impartial. Fuller responded by denying that the meaning of his eight principles was purely instrumental. They also represented a morality of respect for the freedom and dignity of the actors to whom the law was addressed: what they made possible was a mode of government that functioned through ordinary human action, rather than short-circuiting it through manipulation or terror.
This thesis was distinct from the link between law and morality suggested in Fuller in 1958. But the two narratives about the moral meaning of law were linked in a way that John Finnis explained: Dicey had a knack for expressing the rule of law in terms of principles whose eloquent formulations beelied their deeper difficulties. Its first principle of the rule of law was that, sometimes, situations can be resolved and disputes resolved through informal social norms, rather than through positive law, formally promulgated and enforced (Ellickson 1994). Opinions differ as to whether this should be seen as something quite different from the rule of law. On the one hand, it looks like a real alternative, and there is little to be gained by adapting its desirable characteristics, such as they are, to the requirements of the rule of law. On the other hand, it has something in common with customary conceptions of law and ideas of the rule of law (such as Hayek`s in 1973), which attempt to separate themselves from enactment and legislation. It is also sometimes said that the rule of law works best when what is applied in a society can be mapped to the standards of fairness and common sense of its members.