"The rule of law and the law of rules" [2019] ELECD 812; in McIlroy, David (ed), "The End of Law" (Edward Elgar Publishing, 2019) 55

Book Title: The End of Law

Editor(s): McIlroy, David

Publisher: Edward Elgar Publishing

Section: Chapter 4

Section Title: The rule of law and the law of rules

Number of pages: 19

Abstract/Description:

Legal positivism’s dissection of law from justice removed the life from the phenomenon it was examining. What was lost was an understanding of what exactly law’s claim about its relationship to justice is, why that claim is made, and the work which that claim is doing. Justice is integral to the interpretation, expression and critique of legal rules. Shallow justice is intrinsic to judicial decision-making, whether the application of the rule seems plain or contestable. Laws seek to implement conceptions of deep justice. True justice judges the rules and the conceptions of deep justice which they express. The freedom which law promises is important, but is best understood not as a separate good from justice. Governing by means of rules is about both giving subjects an area of immunity from the power of others and about obliging subjects to act in certain ways towards one another.