Legal Theory and the Rule of Law (original) (raw)
In "Legal Theory and the Rule of Law" Noel Reynolds maintains that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this conventionalist concept of law in the sense that natural lawyers have wanted, but they arise from a social fact, not a background moral or political theory, thus bridging the persistent chasm that divides positivist and natural law theorists.
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The Union of Legal and Political Theory
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This paper explores the social science concept of conventions as a way of understanding law that would bridge the enduring gap between natural law and legal positivist legal theories. It further finds in the conventionalist approach a promising account of the rule of law-both in how it may be characterized and in how it can be assessed in particular legal systems. KEY WORDS: Rule of law, legal theory, conventionalism, natural law, legal positivism, law and morals, constitutionalism I. THE PROBLEM The difficulty of accounting for both the factual and normative aspects of law has long defined the central issue in legal theorizing. Recent writers from both sides of this dispute have proposed that a mutually acceptable solution might lie in the characterization of law as a particular kind of convention which is "both a social fact and a framework of reasons for action." 1 The following essay is a preliminary attempt to sketch out such a theory of law to see what it might look like and what implications it might seem to have for significant questions in legal philosophy.
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