The Concept and the Rule of Law

67 Pages Posted: 25 Sep 2008 Last revised: 18 Nov 2008

Jeremy Waldron

New York University School of Law

Date Written: September 24, 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.

Keywords: general jurisprudence, Hart, legality, positivism, procedure, Rule of Law

Suggested Citation

Waldron, Jeremy, The Concept and the Rule of Law (September 24, 2008). Georgia Law Review, Forthcoming; NYU School of Law, Public Law Research Paper No. 08-50. Available at SSRN: https://ssrn.com/abstract=1273005

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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