rule of law (was RE: Iraqi and American democracy)

Malla Pollack mpollack at
Wed Jul 20 14:46:59 PDT 2005

As usual, I agree completely with Prof Lipkin. He articulates clearly why
veneration for the rule of law does not mean that once he joins the Sp Ct
Roberts will not decide that the "rule laid down" is in a case from 1830 and
discard everything between then and now. 


Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at



-----Original Message-----
From: RJLipkin at [mailto:RJLipkin at] 
Sent: Wednesday, July 20, 2005 2:42 PM
To: msellers at; SLevinson at; mpollack at;
Hamilton02 at; conlawprof at
Subject: Re: rule of law (was RE: Iraqi and American democracy)


In a message dated 7/20/2005 4:59:25 PM Eastern Standard Time,
msellers at writes:

The rule of law requires limiting governmental discretion through rules laid
down in advance, and following the rules laid down. 

        Of course, if this suggests that the rule of law is somehow
conceptually tied to positivism, it begs the question of the proper analysis
of "the rule of law" against coherentist, natural law, and pragmatist
theories of law. Just what counts as the "rules laid down in advance"
cannot, or at least should not without circularity, be restricted to
preclude novel readings of texts, history, structure, and so forth. Indeed,
Dworkin believes, as does, I think, Tribe and Justice Kennedy, and certainly
others, that the principle in Brown was already "laid down" in the law prior
to 1954, while Frankfurter said, if I recall correctly, the law of equality
changed on the day Brown was decided. "Following the rules laid down," then,
is not an easily interpretable notion that can be used to evaluate various
political arrangements or judicial decisions or judicial nominees. Rather
than an external standard, the rule of law is relative to particular
jurisprudential theories and certain political philosophic conceptions of
appropriate government and are pretty ineffective, conceptually, as a bridge
to those theories or conceptions.





Robert Justin Lipkin
Professor of Law
Widener University School of Law

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