Politics, Interpretation, and the Rule of Law
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Description
We may say that a legal system satisfies the requirements of the rule of law if its commands are general, knowable, and performable. Generality is the requirement that the content of law not depend on particulars such as the identities of the subjects; it is sometimes said to require that that law be rulelike (even if it is not explicitly expressed as a system of rules). Knowability requires that law be publicly promulgated and that changes in it be prospective in their effect. Performability is the requirement that individuals could act in ways that satisfy its commands—particularly, that it not be contradictory or violate physical or other constraints on action. While no actual legal system could fully satisfy all these demands—indeed, generality seems transparently to conflict with knowability—we hold the rule of law as a normative standard with which to evaluate the regulation of our public life. Its virtues are rooted in elemental requirements of justice (a source of all three requirements) and efficiency (by allowing individuals and public bodies to rely on the anticipated operation of the legal system when making allocative choices among alternative courses of action).
Source Publication
The Rule of Law
Source Editors/Authors
Ian Shapiro
Publication Date
1994
Recommended Citation
Eskridge, William N. Jr. and Ferejohn, John A., "Politics, Interpretation, and the Rule of Law" (1994). Faculty Chapters. 522.
https://gretchen.law.nyu.edu/fac-chapt/522
