The Concept and the Rule of Law

This Essay 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. First, the Essay argues in favor of a more demanding understanding of what law it (informed by the ideal of the Rule of Law); in other words, it argues against versions of "casual positivism" that take almost any instance of centralized command and control as a legal system. Second, it argues in favor 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.

Finally, following the work of Ronald Dworkin and Neil 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 our conceptions of legality very close together.