Contemporary analysis of the rule of law has centred around debates between ‘formal’ and ‘substantive’ theories, with formal theories focusing on content-independent requirements of action guidance and substantive theories embracing the protection of certain fundamental rights and eschewing neutrality in the content of law. While there has been strong disagreement on that axis, contemporary rule of law theory tends to fall within a theoretical framework informed by liberal political theory, broadly construed. Formal theories have focused on autonomy and action-guidance, grounded within the value of freedom. Substantive theories have maintained this focus on freedom, but also include a more expansive vision which includes a range of individual rights. Both kinds of theory tend to focus on the rule of law as a shield against the misuse of State power, informed by some commitment to a liberal constitutionalist focus on individualism, institutionalism, and neutrality on substantive questions of the good life.

This paper seeks to challenge that framing. It offers an alternative grounding of the rule of law within the ideal of custodianship. On this view, the rule of law operates not simply to check the misuse of State power, but also to facilitate the achievement of important social ends that can only be achieved through law. To rule through law, on this account, is to adopt a distinctive attitude towards the legal subject, one which views her flourishing as a constitutive element of the systems own success qua legal system. Teleological accounts of law have been advanced by many natural law theorists. But to date there has not been a book-length exploration of the connection between this vision of law and the established cannon of rule of law scholarship.