Why the Rule of Law?
Richard K. Greenstein
Temple University - James E. Beasley School of Law
Louisiana Law Review, Vol. 65, No. 1
Why should we - indeed, why should any community - care about the rule of law?
There is, of course, a traditional answer: The rule of law protects a community against tyranny. That is, law sets limits on the use of governmental power. Law does this in two ways: by requiring the government to act in accordance with preexisting rules, principles, and standards, and by incorporating into those standards supralegal norms (natural, divine, customary, etc.) that reflect the polity's understanding of unalterable (or very hard to alter) limitations on the government power.
Of course, for the rule of law to protect against tyranny, law must be knowable. That is, law's limits must be sufficiently specified so that they are known in advance of the state's use of coercive power. This requirement of knowability focuses us on the profound paradox of law: On the one hand, law is rule-like. Our everyday experience is that law is relatively clear, enabling us, including government officials, to reliably know what the law permits, forbids, and requires. On the other hand, law is incorrigibly malleable, open-textured, and indeterminate - the very quality that enables lawyers to advocate different legal positions, enables judges to concur and dissent in specific cases, and enables courts to justify distinguishing, limiting, and overruling precedent.
My concern is not to resolve the paradox, but to think about what it implies for justifying the rule of law. The protection-against-tyranny rationale speaks to one aspect of law's character: its ruleness (law's manifest ability to say in advance what is permitted, forbidden, and required). But what justifies the rule of law in light of law's malleability, open texture, and indeterminacy (law's manifest inability to say what is permitted, forbidden, and requires)? Perhaps more to the point, just what does the rule of law mean in light of law's malleability, open texture, and indeterminacy.
That is what this essay is about: making sense of and justifying the rule of law when we think about law as indeterminate and, therefore, unable to specify the limits on governmental power that protect us from tyranny.
Number of Pages in PDF File: 50
Keywords: rule of lawAccepted Paper Series
Date posted: August 29, 2005
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