Thoughtfulness and the Rule of Law
New York University School of Law
February 10, 2011
NYU School of Law, Public Law Research Paper No. 11-13
The rule of law is sometimes associated with the precision and determinacy of legal rules, and the predictability of the environment that they provide. But it is important also to think about the various ways in which law helps to make us more thoughtful and reflective, governing us through standards and principles rather than through the robotic precision of rules. Whether in private law (with standards of reasonable care), or in human rights law (with norms prohibiting inhuman and degrading treatment), law sometimes invites its subjects to make thoughtful judgments about their behavior or about the situations that they face, structuring and channeling those judgments in various ways. The paper focuses on three ways in which law itself sponsors thoughtfulness and argumentation: (1) first, in its use of standards (as well as rule); (2) secondly in the way legal procedures structure and facilitate argumentation; (3) in the way precedents provide shared premises for argument. It would be a pity if we were to lose sight of these functions of law; and equally it would be a pity to distinguish too sharply between these key features of law and the aide of the rule of law. This paper reflects in general terms on the circumstances in which law's facilitation of thoughtfulness is appropriate, and on the dangers of losing sight of this aspect of the rule of law.
Number of Pages in PDF File: 21
Keywords: certainty, positivism, precedent, predictability, procedure, rule of law, rules, self-application, standards, stare decisis
Date posted: February 12, 2011 ; Last revised: February 27, 2011