Abstract

This dissertation asks if and how the idea of the rule of law might be realized by the institution of legal decision. ;Chapter One argues that our legal culture is divided between formal and ideal conceptions of legal decision and that this division reverberates throughout our law. ;Chapter Two distills the core elements of the rule of law and specifies criteria to measure the success of legal justification in realizing the rule of law. Chapter Two then argues that the ideal of the rule of law first spawns the formalist and positivist conception of law as a web of discrete rules, unified by pedigree, and crisply distinguished from background morality by criteria of recognition. That conception succumbs to the argument that law understood as a system of rules is plagued by conflicts and gaps among its terms. This yields the idealist vision of law as a seamless web of moral principle. Idealism holds that legal reasons are inexhaustible, and that the policies, purposes and principles that fit and justify the positive rules of legal doctrine provide the resources with which to seal the gaps and settle the conflicts that plague legal formalism. Idealism thus promises to avoid the formalist collapse into purely preferential policy choice and so to perfect the rule of law. Yet idealism succumbs to the argument that the invocation of policies, principles, and purposes ends by reproducing the very conflicts that it is supposed to settle. Thus, the rule of law is not fully realized by either formalism or idealism. ;Chapters Three and Four argue that legal decision and legal doctrine reproduce the conflicts found in legal theory. Chapter Five argues that law's normativity ties law to criteria of justice and conceptions of the common good, and legitimates the diversity of moral conceptions found in legal justification. Chapter Five then argues that the rule of law is an aspect of democratic self-government. Self-government is advanced by both vigorous disagreement and by the public articulation of the normative conceptions and empirical assumptions that inform legal doctrine