Law as Engagement: A Judeo-Islamic Conception of the Rule of Law for Twenty-First Century America

405 Pages Posted: 19 Jan 2022

See all articles by Shlomo Pill

Shlomo Pill

Texas Southern University - Thurgood Marshall School of Law; Emory University School of Law

Date Written: April 1, 2016

Abstract

The indeterminacy thesis holds that in a least some substantial subset of cases, legal materials and methods fails to determine uniquely correct legal results and thus leave judges to resolve such matters based on their own subjective discretion. Since the legitimacy of liberal legal and political systems is often associated with “the rule of law,” however, and because the rule of law is widely understood to entail substantial determinacy and objectivity in legal processes, many scholars have argued that such legal indeterminacy poses a serious challenge to the legitimacy of liberal legal systems. This dissertation explores the indeterminacy problem in traditional Jewish and Islamic jurisprudence in order to develop an innovative way of thinking about law that can shed new light on an issue that has vexed American legal theorists for nearly two centuries. This approach, which I call “law-as-engagement,” locates law and law’s rule not in a particular set of substantive norms, but in the collective commitment of some self-identifying community to remain engaged with the sources and methods of their legal tradition as the principle means of reaching normative judgments. In the Jewish and Islamic traditions, this conception of what it means for law to rule responds to seemingly universal jurisprudential concerns about legal indeterminacy, subjective judicial decision making, legitimacy, and the seemingly intractable persistence of disagreement over the correct resolutions to legal problems.

Keywords: Jewish Law, Islamic Law, Jurisprudence, Indeterminacy, Legal Pluralism, Judicial Subjectivity, Legal Interpretation

Suggested Citation

Pill, Shlomo, Law as Engagement: A Judeo-Islamic Conception of the Rule of Law for Twenty-First Century America (April 1, 2016). Available at SSRN: https://ssrn.com/abstract=3975482 or http://dx.doi.org/10.2139/ssrn.3975482

Shlomo Pill (Contact Author)

Texas Southern University - Thurgood Marshall School of Law ( email )

3100 Cleburne Street
Houston, TX 77004
United States

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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