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James R. Stoner, Jr. is Hermann Moyse, Jr., Professor and Director of the Eric Voegelin Institute at Louisiana State University. He wrote Common-Law Liberty (2003) and Common Law and Liberal[…]

JAMES STONER: I think the rule of law only works, in the end, among people who have a sense of justice. In other words, that you can't divorce the rule of law from the virtue of justice. That doesn't mean that people aren't allowed to pursue their own interests in the marketplace. Actually, it's just for people to be able to pursue their own interests and to a large extent to pursue the good as they understand it. Actually, that's almost the definition of conscience, is to be able to act according to the law but according to your own judgment of what the circumstances require—you, who know those circumstances and everything about them because you're a human being, right, you can make those judgments. That's a specifically human capacity, something the robots can't do and the algorithms, for Pete's sake, certainly don't do. But the question is whether you can have the rule of law without conscience, without people having consciences, without people having the virtue of justice? And I guess I think you can't really.

Immanuel Kant said the perfect constitution would work even among a nation of devils, provided they were intelligent devils. If you had all the right punishments you could lead people just out of their own interests never to do anything wrong, if you could calibrate it in that way. But I think the overwhelming evidence is the other way on that one; people are clever enough, maybe I should say human sinfulness is fertile enough that people will always figure out a way around any law. The virtue of justice, it has to be there in judges, it has to be there in juries, but if it has to be there in juries, it has to be there in society generally. And I think that our sense that the law can be only something external to us, rules that just hedge us in in certain ways and don't care about our internal life in any sort of way, don't care whether we're just or unjust in our souls, in ourselves, I think that's a tremendous threat to the rule of law. So, it's a kind of paradox and the best of the classical liberals really understood this, that part of the game of classical liberalism is to make the rules a little more external, to give us a little bit more room to pursue the good as we understand it or as we see it. But that, I think, can never go so far as not to be concerned that we ourselves or that everyone who is a player in that game has a basic sense of justice, has a sense that there's a duty, a duty and conscience, to obey the just rules that are made for the sake of the common good of everyone. The ability of all people to pursue their own good is itself a kind of common good of a liberal society. It's something that we share and something that, of course, we have to sacrifice a little bit for in order to have the real benefits of.