Chapter

The Impossibility of the Rule of Law

TIMOTHY A. O. ENDICOTT

in Vagueness in Law

Published in print December 2000 | ISBN: 9780198268406
Published online January 2010 | e-ISBN: 9780191714795 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268406.003.0009
The Impossibility of the Rule of Law

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By upsetting the standard view of adjudication, this book reaches conclusions that some people find horrible: when the law is vague, judicial decision-making will in some cases be unconstrained by the law. It is impossible in principle for judges always to treat like cases alike. Predictability in the law is to some extent unattainable. Moreover, vagueness cannot be eliminated from law. These conclusions might seem to imply that the rule of law is, at least to some extent, conceptually impossible. Avoiding that conclusion requires a revised account of the ideal of the rule of law, which asks, ‘What counts as a deficit in the rule of law?’. Answering this question raises some new puzzles about the nature of arbitrary government. This book addresses those puzzles, in support of a claim that vagueness (and judicial decision-making that is not guided by law) is not necessarily a deficit in the rule of law.

Keywords: vagueness; rule of law; adjudication; arbitrary government; anarchy; resolution

Chapter.  10143 words. 

Subjects: Civil Law

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