The Concept and the Rule of Law
SSRN Scholarly Paper, ID 1273005. Social Science Research Network, Rochester, NY, (September 2008)Abstract
This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together.