Oxford Journal of Legal Studies · 1999 · 81 citations · 0 references
LawJurisprudenceLawmakingLegal RealismPhilosophy Of LawLegal IndeterminacyLegal NormsLegal SystemsRule Of Law
The rule of law ideal is unattainable because legal systems contain vague laws, allow change, permit unreviewable decisions, and cannot regulate all aspects of community life. The author asks what constitutes a deficit in the rule of law and argues that these features do not necessarily amount to deficits. The author concludes that failure to achieve the rule of law stems only from official infidelity to law and lawmakers’ lack of pursuit, and that the rule of law is not inherently unattainable.
No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I ask what counts as a 'deficit' in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable.