The Rule of Law as a Law of Law

32 Pages Posted: 21 Mar 2014 Last revised: 1 Jun 2014

Date Written: March 20, 2014

Abstract

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution’s implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.

Keywords: rule of law, Scalia, rules, standards

JEL Classification: K19, K39, K40, K49

Suggested Citation

Calabresi, Steven G. and Lawson, Gary, The Rule of Law as a Law of Law (March 20, 2014). Notre Dame Law Review, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 14-14; Northwestern Public Law Research Paper No. 14-18. Available at SSRN: https://ssrn.com/abstract=2412025

Steven G. Calabresi

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

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