Priel on The Political Theories of the Legal Realists

Dan Priel, City University of Hong Kong School of Law; York University, Osgoode Hall Law School, has published The Political Theories of the Legal Realists. Here is the abstract.

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law.

Download the article from SSRN at the link.

Sevel on The Rule of Law: A Thought Pattern @michaelsevel.bsky.social

Michael Sevel, The University of Sydney Faculty of Law, is publishing The Rule of Law: A Thought Pattern in The Rule of Law in Ancient Rome (Eleanor Cowan, Kit Morrell, Andrew Pettinger, and Michael Sevel, eds., Oxford University Press, eds, 2025). Here is the abstract.

The interdisciplinary revival in rule of law studies over the last quarter century has produced an impressive diversity of views about the ideal's content, priority, and value. That diversity has sometimes encouraged the skeptical view that it has no conceptual core or nature, and is either 'essentially contested' or else only empty political rhetoric. I argue that amongst the various views about the rule of law developed over the centuries, there is a discernible, recurring thought pattern upon which the many variations have been proliferated. Whatever else it is, the rule of law is realized when a political community has an efficacious legal system with certain enabling and pervasive characteristics, which protects its members from something presumed in that community to be undesirable, often identified as the arbitrary exercise of power. I explain and illustrate each aspect of this pattern, and draw a few lessons about how it guides, or fails to guide, current rule-of-law debates.

Download the essay from SSRN at the link.

Postema on An "Almost Sacred Responsibility": The Rule of Law in Times of Peril @UNCPhilDept @DukeJudicature

Gerald J. Postema, University of North Carolina Department of Philosophy, has published An 'Almost Sacred Responsibility': The Rule of Law in Times of Peril at 107 Judicature 41 (2024). Here is the abstract.

“An ‘Almost Sacred Responsibility’: The Rule of Law in Times of Peril.” Published in Judicature (107 no. 3—2024) Judicature - Vol. 107 No. 3 (2024). The material in this short article was first presented in a lecture for the Bolch Judicial Institute, Duke University Law School, June 16, 2023. The essay sketches key ideas that are set out in detail in Gerald J. Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford, 2022). It briefly articulates the core principles of the rule-of-law ideal, its moral foundations, key institutions in which it is typically realized, and signal threats to which it is vulnerable.

Download the article from SSRN at the link.

Lino on A. V. Dicey and the Rule of Law and the Rule of Empire

Dylan Lino, University of Western Australia Law School, has published The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context at 81 Modern Law Review 739 (2018). Here is the abstract.

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey. But for all of Dicey’s influence, very little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view. On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own.

Download the article from SSRN at the link.

Wittgenstein and Tax Law

Bret N. Bogenschneider, Vienna University of Economics and Business, has published Wittgenstein on Why Tax Law is Comprehensible in volume 252 of the British Tax Review. Here is the abstract.

The field of taxation now includes a growing body of technical language. Such tax words are not merely “labels” for various economic events (as implied by the theory of semantic formalism) as tax terminology must be contextualised consistently with Wittgenstein’s later theory of linguistics. The current debate over GAARs may constitute an example of Wittgenstein’s “signposts” which mitigate in favour of the Rule of Law and not against it. Furthermore, the proffered choice as between principles versus detail in tax legislation reflects a false dichotomy. The common averment to scepticism (or nihilism) within tax jurisprudence indicates a failure to understand the logical basis or modalities and scientific nature of tax law. The technical language of taxation is indicative of an emerging scientific discipline.

Download the article from SSRN at the link.

Impeachment, Performance Art, and the Rule of Law

Jessie Allen, University of Pittsburgh School of Law, has made available via SSRN Blind Faith and Reasonable Doubts: Investigating Beliefs in the Rule of Law, published at 24 Seattle University Law Review 691 (2001). Here is the abstract.

In the winter of 1998-99, I was in a graduate law program designed for future law teachers. I found myself thinking with new urgency about old questions: Can our legal system produce results that are at least partly independent of political and economic power? Or does the law always wind up reproducing and reinforcing the powers that be? In short, is there any such thing as the "rule of law"?

By a bizarre accident of timing, my personal inquiry into rule of law issues coincided with a new popular interest in these matters brought about by the Clinton impeachment hearings. Suddenly, there were almost daily references in the news media and on the floor of Congress to the sanctity and vulnerability of the rule of law in our democracy. I was particularly struck by the quasi-religious tone that prevailed. It seemed paradoxical to me that this most rationalist ideal should generate an aura of the sacred, and the apparent contradiction provoked me to look more closely at what we mean when we talk about believing in something.

While considering what it meant to preach the rule of law as an ungrounded article of faith, I began to wonder if there was anything about the nature of legal practice that might ground a more limited belief in law's ability to constrain power. Watching the impeachment proceedings on television, I found myself thinking about an earlier period in my life. I used to be an actress and a performance artist. It occurred to me that there were certain similarities between legal and theatrical practice.

Perhaps the formal conventions that radically limit behavior on stage and in court might be related to the decisional constraints that constitute a rule of law. That possibility, in turn, led me to ponder various kinds of limits evoked by the figure of a blind, hence limited, justice. In the end, the formalities of legal procedure seemed more central to the value of a just legal system than I had previously thought. Somehow, investigating my own tenuous -- but apparently unshakeable -- belief in a rule of law ideal changed the way I saw legal practice. This Article reports that investigation.

Download the article from SSRN at the link.

Bandes on Movies and the Rule of Law

Susan Bandes (De Paul University Collegeo of Law) has posted We Lost It at the Movies: The Rule of Law Goes from Washington to Hollywood and Back Again, forthcoming 40 Loyola of Los Angeles L. Rev. (2007) on SSRN. From the abstract:

This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is "out there" and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded "activist." Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.