The rule of law: sociology or normative theory? An afterword to Martti Koskenniemi’s foreword

Abstract

Martti Koskenniemi is correct to view Hugo Grotius as a thinker committed to the rule of law. But there is a crucial difference between Grotius’ and Koskenniemi’s respective concepts of the rule of law. Grotius’ concept of the rule of law is normative and requires a moral cognitivist outlook. Koskenniemi, on the other hand, holds a sociological concept of the rule of law. Koskenniemi is correct that, for the rule of law to find its ‘normative voice’, Grotius may well be of help. For this normative voice to make itself heard, however, it will have to rise above the sceptical reduction of the rule of law to normatively inert sociological facts.