A Law of Rules: A Critique and Reconstruction of Justice Scalia's View of the Rule of Law

Abstract

In one of the most influential articles in contemporary practical jurisprudence, Justice Antonin Scalia of the United States Supreme Court advances the thesis that the rule of law requires a law of rules. Scalia argues that rule-of-law values favor general rules over all-of-the-circumstances balancing tests as a tool for the elaboration of legal norms in a common-law system. There are two conceptual problems with the thesis that the rule of law requires a law of rules. The first is the problem of social practice. This problem is based on the idea that the same legal forms can take on quite different meanings when embedded in different social contexts. The second problem is the problem of character. This problem is based on the idea that legal actors, e.g., judges or lawyers, have forms of discretion that cannot be directly controlled by legal forms. The rule of law does not require a law of rules; nor does a law of rules guarantee the rule of law. Rather, the rule of law requires sound practical judgment by judges of integrity.

JEL Classification: K40, K41