"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an Oliver Wendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)