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The Rule of Law and Its Limits

54 Pages Posted: 22 Jul 2003  

Andrei Marmor

Cornell University - Law School

Date Written: April 2003

Abstract

The challenge for any theory about the rule of law is threefold: to explain what the rule of law is, why is it good, and to what extent. This article proposes a comprehensive theory of the rule of law, articulating the conditions that the law has to meet in order to be able to fulfill its pivotal functions in guiding human conduct. The article advances two main theses about these conditions of the rule of law: first, that although the virtues of the rule of law are essentially functional, they are also moral political values, enhancing a range of goods that we value in addition to their functional merit. Secondly, the article comprises detailed arguments purporting to show how legalism can be excessive and that upholding the rule of law virtues is never costless, morally, politically, and otherwise. Within contemporary jurisprudence, this article takes an intermediary position between Lon Fuller's account of the rule of law as exhibiting the "inner morality of law," and Joseph Raz's functional account. The article concludes with an argument showing that the jurisprudential debates about the rule of law have no bearing on the debates between legal positivism and its critics.

Suggested Citation

Marmor, Andrei, The Rule of Law and Its Limits (April 2003). USC Law and Public Policy Research Paper No. 03-16. Available at SSRN: https://ssrn.com/abstract=424613 or http://dx.doi.org/10.2139/ssrn.424613

Andrei Marmor (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio_andrei_marmor.cfm

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