Jeremy Waldron (New York University - School of Law) has posted The Concept and the Rule of Law (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:
This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together.
And from the paper:
If we understand the relation between the concept of law and the Rule of Law in the way that I have urged us to understand it, then the importance of the second procedural current is obvious. No concept of what law is will be adequate if it fails to accord a central role to institutions like courts, to their distinctive procedures and practices like legal argumentation. Conceptual accounts of law that only emphasize rules and say nothing more about legal institutions than that some institutions make rules and some institutions apply them are way too casual in their understanding of what a legal system is. They are like understandings of democracy that neglect the central role of elections. A philosophy of law is impoverished as a general theory if it pays no attention to the formalized procedural aspects of courts and hearings and elementary features like offering both sides an opportunity to be hard. It reveals the emptiness of conceptual analysis if it makes no attempt to capture all this in abstract terms or regards it all this as just a contingent feature of some legal systems and not others, and therefore beneath the notice of general jurisprudence. I said too that even if one could defend focusing purely on the rules themselves, a philosophy of law would still be impoverished if it paid no attention to the defining role of laws aspiration to coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining that consistency and in bringing it to bear in the application of norms to particular cases.
Read this. Highly recommended.
