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Margaret Jane Radin
Boston University Law Review
July 1989
69 B.U. L. Rev. 781
The article begins by asserting that the rule of law is not presently functional and should
be given a modern interpretation to establish a government made up laws and not men.
The assertion is that it is questionable whether the rule of law can control arbitrary power
or of the rule of law is human a good way of going about achieving a government of laws
and not men. First is the emphasis on the rule of law as either substantive or instrumental
with emphasis on Wittgenstein's social practice conception of rules. Wittgenstein social
practice conception of rules essentially asserts that rules only exist in practice meaning
that a community must accept them in order to be rules, which negates the possibility of
pre-existing rules. First, the traditional idea of rules, which is essentially formalist, is
connected with certain aspects of the nature of rules. Assuming the practice conception
of rules to be true the question is whether the rule of law is workable in modern society.
The assertion is that the practice of the conception of rules makes the rule of law
unworkable in modern society and as such, it should be reinterpreted.

As an initial matter, the rule of law can be viewed in its various elements that are
essentially either instrumental or substantive. The instrumental version, which is asserted
by Lon Fuller, holds that rules are pre-existing to any workable society. The substantive
version, which is asserted by John Rawls, holds that the rule of law incorporates tenants
of a particular political policy.
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Lon Fuller claimed that the rule of law is part of an internal morality of law. Eight
elements are presented which are purported to be crucial to internal morality of law.
They are:
1. Generality. Roughly, there must be rules, cognizable separately
from (and broader than) specific cases, such that the rules can be applied
to specific cases, or specific cases can be seen to fall under or lie within
2. Notice or publicity. Those who are expected to obey the rules must
be able to find out what the rules are.
3. Prospectivity. The rules must exist prior in time to the actions
being judged by them.
4. Clarity. The rules must be understandable by those who are
expected to obey them.
5. Non-contradictoriness. Those who are expected to obey the rules
must not simultaneously be commanded to do both A and not-A.
6. Conformability. The addressees must be able to conform their
behavior to the rules.
7. Stability. The rules must not change so fast that they cannot be
learned and followed.

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8. Congruence. The explicitly promulgated rules must correspond
with the rules inferable from patterns of enforcement by functionaries
(e.g., courts and police). Id at 785.
It is that asserted that the list can be boiled down to two principles first there must be
rules and second rules must be capable of being followed.
Fuller's conception of generality means simply that rules should be broad and that like
cases should be decided similarly. If it were otherwise than as formalistic approach then
there would be no "rule" per se but only a preference. Fuller's conception of the
following ability of rules encompasses numbers 2 - 7 set forth above. These can be
boiled down to two propositions the first being "knowability" as a second being
"performability." The first conception of knowability encompasses clarity, certainty,
publicity, congruence, and noncontradictory nature. The second conception of
performability encompasses the possibility that human beings can follow the rules in a
congruent manner that is in accord with human nature and generally prospective and not
retroactive. The above outlined concept is instrumental meanings how to do things with
rules. Ronald Dworkin points out that implicit in this understanding of rules is that laws
are rules, which provides the possibility that two additional elements should be present.
One element would be rationality the other would be motivational. Essentially the idea is
that the rule follower must be rational and motivated to follow the rules.
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John Rawls asserts that law is essential to justice as fairness is an overall scheme of the
administration of public rules. This assertion promotes liberty that is essential to the
concept of justice as fairness, which implicates the possibility that the rule of law is
necessary for liberty to exist. Rawls promotes a rationalist conception of the law, which
is what makes it substantive. Here his seminal definition of a legal system: ³A legal
system is a coercive order of public rules addressed to rational persons for the purpose of
regulating their conduct and providing the framework for social cooperation.´' Id at 788.
³A legal system is a coercive order of public rules´': In Rawls's conception
(as in Fuller's), the law consists of rules. To regulate conduct, and thereby
achieve the social cooperation necessary for justice, rules must have
certain characteristics associated with the Rule of Law:
1. ³Ought implies can.´' The addressees must have the ability to
conform, and the authorities must act in good faith. Impossibility of
conformance, therefore, must be recognized as a defense.
2. Similar treatment of similar cases. This includes the requirement of
consistency, and imposes limitations on judicial discretion.
3. ³Nullum crimen sine lege´' (no crime without law). Laws must be
known and expressly promulgated, with clear meaning. There must be no
retroactivity. Laws must be general and not bills of attainder. Severe
offenses must be narrowly construed.
4. Natural justice. There must be structures for achieving truth and
correct enforcement: trials, hearings, rules of evidence, due process.
Judges must be impartial and independent. Trials must be fair, open, and
not ³µprejudiced by public clamor.´¶ Id at 789.
Rawls advances to arguments for the above quote the first being that the four

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elements are not present it would lead to irrational results because like cases
would not be treated similarly. Hence, an individual in the "original position"
would opt for this type of system of legal rules because it offers predictability,
which an individual in the original position would find rational. The second
argument is based on the Hobbesian principal to which Rawls subscribes. The
Hobbesian principal is that individuals will cooperate and work with one another
when it benefits them. However this leaves the possibility of a "prisoner's
dilemma." A prisoner's dilemma is that if to individual apart from one another
were offered a lenient sentence for informing on the other they would take it in
the ignorance of the other silence. However the dilemma arises when there would
be no punishment if of did not inform upon the other. Hence, acting in one's self-
interest is a basic assumption of the Hobbesian principal. Rawls deals with this
problem by asserting that penal sanctions should be imposed in order to dissuade
self-interested behavior in the original position. In providing for penal sanctions,
the Leviathan of self-interested behavior can be dissuaded by a sovereign with the
possibility and authority to impose penal sanctions. This principle necessarily
leaves to the principal of responsibility as part of the concept of ordered liberty.
Essentially one must take responsibility for their actions even though defenses to
the penal sanctions are present to knowability and performability of law
ultimately rests on the independent agent. One problem with John Rawls account
of justice is that it does not account for the separation of powers in American
jurisprudence. This concept is explored by Fuller in his account of instrumental
justice and can be summarized in the assertion that the application of rules must
not differ from how they are made and to do this Judges must "find the law"
rather than "make the law." This constrained view of the judicial rule is central to
the law as a conception of justice because it requires democracy to be a core
central value. Three problems are counter majoritarianism, gaps in the law, and
limiting the judiciary without limiting the legislative bodies. Counter
majoritarianism is a problem because a majority of a society can establish unjust
rules and use the courts to protect their enforcement. Gaps in the law is a problem
because it does not give a judge clear guidance for determining a case nor does it
allow one subject to the law to easily account for all situations. When the
judiciary is limited and legislative or executive is not unjust rules can be made
and the judiciary forced to enforce them.
At this point, it becomes clear that there is an ambiguity in the rule of law as a concept.
At this point, the connection between the law and legal liberalism should be apparent.
Legalism is essentially the decisional outcomes of pre-existing rules as advocated by
Fuller. From this, it can be deduced that the substantive form of legalism is simply
liberal legalism as advocated by John Rawls.
Aside from the surface correlation in the lists of precepts, it is apparent
that the two conceptions do have much philosophical underpinning in
common, including five important assumptions: (1) law consists of rules;
(2) rules are prior to particular cases, more general than particular cases,
and applied to particular cases; (3) law is instrumental; (4) there is a
radical separation between government and citizens; (5) the person is a

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rational chooser ordering her affairs instrumentally. It at 792.
In either event, instrumental justice must be rules meant to achieve government
ends and substantive justice must focus more on the social contract of liberty and
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Having just a traditional formalism as applicable to the rule of law, the focus is now ways
in which traditional formalism does apply the law and whether Wittgenstein's conception
of law by action is a better approach.
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Traditional formalism is simply the idea that there is an analytic framework for every set
of facts and a particular rule that must apply. In this conception, judges are computers
that get a set of facts, which dictate a particular rule, be applied for a necessary outcome.
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Another sense of the word formalism mandates that the mind exists independent of
reality and has a foundation of the first principles of logic. Natural law is a type of
formalism in the sense that there are forces extra roll to the human mind which mandate
morality. This type of formalism involves a connection with either fact or value and
mainly concerns itself with the connection between the rule of law and the structure of
the universe.
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Another sense of formalism is formalism in semantics. H.L.A. Hart asserted that there is
a core and prenumbra of rules. The core value of rules would be an essentially formalist
idea since there would be certain factual situations, which directly apply to a given rule.
In the prenumbra, the judge must legislate. If the core value is true then there must be at
least some subset of words, which apply to a given rule. This is a problem for the theory
of reference because it implies that there are some criteria for which rules are applicable
and other rules or fact situations where words are inapplicable. The necessary and
sufficient conditions where a particular rule applies may be a convention of language and
a thought reductionist would deduce foundational sense data, which leads to formalism in
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Formal realizability is essentially a self-executing rule or what may be called strict
liability. Under this theory, an analytic framework necessitates a given rule to be applied
to facts. This is so because the rule is realizable by its very words or definition ever
ascertainable by the rules "plain meaning."
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The traditional understanding of formalist realizability correlates with the clarity of both
instrumental and substantive justice since each requires that the independent agent knows
the rules and can follow them. Outside of formal realizability, there can be "standards" or
guidelines, which gives some idea of the rule, but this is problematic to formalism. From
the instrumental standpoint it leads to confusion due to lack of clarity and from the
substantive standpoint it leads to judges exercising arbitrary and capricious power. In the
substantive conception, John Rawls saw the ready connection between rules and the
contract theory of cooperation as Hobbes put it. The added ingredient is a sovereign with
the power to impose penal sanctions to prevent any breach of the social contract or

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constitution. The problem is that judges should formalistic we apply rules under this
theory in order to keep order in society and thus ensure liberty and fairness. Although
Rawls does not subscribe only to Hobbes theory, he understands the means-ends analysis.
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Just as Wittgenstein's view of words and rules have a social and practical conception.
The social conception is that in order to have a rule in must be accepted by society. The
practical conception is that in order for rule to exist it must be practiced within a society.
The social context of the rule provides definition whereas the practice of a rule provides
its application. Wittgenstein's perspective may be called a type of rule skepticism. The
quandary is that one may ask when a rule is being applied which one is free to be
skeptical about. If there are no formal or logical criteria for a rule, it makes sense to be
skeptical about rules. Another problem is that the binding of a rule cannot be observed.
There is also a problem of "rule" itself because if it has no definition it cannot be
recognized and thus ruleness cannot be shown. These problems lead to the conclusion
that rule skepticism makes the most logical sense if there is no other analytic framework
or logical way to deduce rules and their application. Wittgenstein addresses both internal
and external conceptions of the existence of rules. The internal questions consider
whether one can know that they are following a rule, what a rule is, and what the
determinateness or binding nature of rule is. The external questions are whether one
could tell what others are following rules and what is her knowledge or application of a
rule. Wittgenstein asserts that the answers to the internal questions are that the
application of the rule is an internal sense or feeling, a compulsion, or strong sense of
connection. Wittgenstein is skeptical so in the end analysis following a rule is simply
what one does and nothing more. In answering the questions of external sensations of
rule following Wittgenstein asserts that it is only when somebody seems like there are
following a rule by an outside observer, in other words context is necessary.
Wittgenstein asserts that agreement is a word deeply connected to rule. There can be no
agreement without a rule in no rule without an agreement thus they are symbiotic. Rules
are irreducibly social because they necessarily follow from the agreement of a group,
which necessarily leads, to the conclusion that rules cannot be followed privately or by
one person at one time only. In Wittgenstein's view a rule is determined by the action of
a matter of course were disputes do not break out. Formal realizability would allow rules
to be followed privately or only one time by one person so Wittgenstein rejects the
notion. The essential point is that rules exist a formalistic realizability is not the way to
understand them.
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Wittgenstein shows affinity for pragmatism since his theory rests on application or use of
rules. In a narrow reading Wittgenstein can be answered by a simple "so what."
However, the broader sense of Wittgenstein seems to be more consistent with rejecting
Neo-pragmatism in favor of pragmatism since everything is action based and
contextually defined. In either viewpoint, there are still rules or sets of rules then the
issue is really one of the concept or process by which one thinks of rules. Even in the
broad interpretation of Wittgenstein if one concedes that all actions are so unique to the
individual then it seems a given that the only thing that changes is the way one

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conceptualizes a rule. An important observation is the rule prenumbra theory, which
Wittgenstein could interpret as being the "core" as a matter of course of a rule and the
"prenumbra" as instances in which disputes break out. Even in deciding the "hard cases"
were may be said that judges are called to legislate an answer or Wittgenstein would
probably view is that there needs to be a better definition of what law "is."
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In order to understand what law is in light of the concept set forth by Wittgenstein it
should be divided into domains consisting of rules and other thing. Ronald Dworkin
disagrees with the core/prenumbra idea of conceptualizing Wittgenstein. Dworkin has
bifurcated the model of language by dividing standards into rules and other things that do
not act as rules into another separate category. There are two main objections to this
point and that is that disputes remain even after cases are resolved so would be incorrect
to say that there is a "right answer" to the dispute and the complexity of practicing law far
exceeds simply dividing rules from non-rules. Duncan Kennedy has posited a notion that
is more extreme than Dworkin in that there is a continuum upon which we can place rules
and nonrules. However this complexity leads to a simple indeterminacy because his
arbitrary at that point as to where anything is placed.
This section articulates the shift in the rule of law if Wittgenstein were accepted. Theory
and practice cannot be made separate because with a shift in theoretical ideas there is an
impact on their practical application. The consequences of such a philosophical shift is
that applying rules necessarily entails making the rules which are contingent upon the
whole spectrum of life activities including the set of particular facts which fall under any
rule. In short, a rule will cease to exist if the relevant community that accepted it no
longer recognize the rule and stop acting according to it. This conception of rules
contrasts with HLA Hart in his theory of command and rule recognition legal positivism.
Hart's primary rules of obligation are valid whether people obey them or not in the rules
of recognition occur when the relevant community recognizes observed actions and
commitments to the legal community. Essentially stated when a rule of law is observed it
is affirmed and when it is not its very existence is undermined. Under Wittgenstein's
theory of the rule of law, the generality asserted by Fuller leads to the conclusion that
there can be no radical distinction between rules in the particular facts in which they
apply. In a general sense, a rule law cannot be promulgated without consideration of the
relevant community to which it is to apply because community acceptance legitimizes
and verifies the rule itself. It must be understood that rules are not immutable. Over
time, the relevant community can do for set effect to a rule through its application or
eviscerate a rule by declining to follow it. In the most natural sense of a rule of law and
not individual theory, individuals are essential since there to be rule-bound instrumental
functionaries of the rule of law itself. Once there is recognition that rules are mutable
and inextricably linked to their material social practice, there are significant
consequences for the practice of law. Duncan Kennedy points out the views and desires
of legal actors in the field in the normative power of the field significantly interact. In
this sense, what appears to be rules can be much more malleable and the fact that there is
no pre-existing rules the positivist theory of rules being mechanically applied changes
because there is no plain meaning of a rule that undermines the predictability of case

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outcomes. If it is accepted that anti-formalist, anti-foundationalist, contingent, and
socially constructed rules than the change in the thought process is not irrelevant but
simply incompatible with the traditional notion of the rule of law in a formalistic sense.
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This section attempts to affirm the traditional rule of law while denying traditional
formalism. The problem is that in this conception to theory collapses into legal
liberalism. Michael Moore asserts that theory of natural law, which embraces coherence
theory. Moore asserts that there is a right answer to moral questions and that in deciding
cases recourse to morality is necessary. These notions connect with the rule of law under
Moore's claim of the rule of law virtue. More lists six virtues, which are separation of
powers, equality, liberty, substantive fairness, procedural fairness, and utility. Michael
Moore cites Fuller for his argument but it is actually closer to the substantive justice
asserted by John Rawls. For instance, the separation of power idea stands for the
proposition that judges should apply the law and not make the law. Another example is
that of equality where like cases should be decided similarly. Two salient features of
Moore's theory are that judges should act as functionaries and not individual persons and
due to the doctrine of stare decisis; there is an implicit morality in previous decisions
without regard to historical or social change. The problem is that when a judge is
constrained in a functionary role stare decisis will sometimes necessitate morally wrong
decisions. This aspect of the theory more closely aligns to that of traditional legal
positivists in their separation of law from morality. Moore's theory collapses on itself
because the implicit framework of legal liberalism and non-foundationalism are simply
inconsistent. Moore's argument for a type of legal liberalism renders traditional
formalism impossible while asserting that language should be used to come as close to it
as possible. However, legal liberalism leads to the conclusion that there is no "it" to
come close to and so the argument collapses.
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This section considers turning towards a pragmatic view of the law that emphasizes
practice as well as language, which leads to a normative pragmatic view and necessitates
hermeneutics in the legal process, which is essentially a political process. This practice-
based approach to law forms the epistemology of law. Robert Cover suggests an
approach that is consistent with this view of law in that when judges act as functionaries
of the law and simply applies rules they deny responsibility for bad decisions. When
judges deny responsibility for their bad decisions they essentially, do violence to the law.
According to Cover, judges constitute an interpretive community, their decisions
constantly reinterpret the law, and as such by applying the law, they are making the law
through precedent. Like Covers theory, hermeneutical social theory rejects
foundationalism and formalism as well as the idea that law can be applied without
reference to its interpretive community or the community to which it applies. Essentially
the idea is that law requires interpretation with reference to policies and values of the
relevant community. This type of reinterpretation of the rule of law would deny the
separation of formalistic realizability that divides groups into rule givers and rule
followers. In such a pragmatic reinterpretation of the rule of law the traditional notion of
pre-existing rules will be rejected because each decision regarding a rule of law would
continually reinterpreted with reference to history and politics of the day. In the

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substantive conception of law this reinterpretation would necessitate that we "look and
see" how the law evolves. Under this conception three theories are crucial which are that
notice, nonretroactivity, and separation of powers. The instrumental view of law would
require that there be pre-existing rules, which negates the possibility of retroactivity if
notice is given to the community in which the rules are to be applied. In the substantive
view of law, fairness is key and it is simply unfair to apply laws retroactively without
giving notice to the rule followers of a community and allowing them to conform their
behavior to the proper rules. Under this reinterpretation of the law, a pragmatic approach
is applied in a traditional sense and provides a broader understanding of publicity and
notice considering that judges as well as legislatures make rules of law. In a pragmatic
sense, the rule of law will exist when a community accepts it whether or not it has been
formally enacted by a legislature or decided by a judge. Under this reinterpretation of the
law, it would be fair to retroactively enforce laws that are clearly foreseeable to the
community as emerging rules. The separation of powers and nature of the judicial role is
a more complex issue. If Wittgenstein's views accepted then it would make sense to
jettison the distinction between rule givers and rule followers but recognition that there
must be some demarcation between the two provides normative stability and once
recognized as such the idea makes sense. In this pragmatic normative understanding the
Constitution becomes an evolving document of the ideal society in which we seek to
become and where we are today with the rule of law necessarily depends on our history
of the evolution of the rule of law. For a better understanding of morals and politics and
Law, conventionalism is implicit in that when a majority or a rule violates minority rights
it should be reinterpreted to be an ideal rule, which is fair to all. In order to do this it
must be recognized that there is a fidelity to the law and a vision of a better society. It
may be said that legislatures are more loyal to a convention of the rule of law and that
judges are more loyal to a convention of a view of a better future. However, when the
two interact a more ideal vision of the future becomes possible. Independence and
impartiality are traditional aspects of the judicial role that are supposed to demarcate the
distinction between legislatures as rulemakers and judges as functionaries applying the
law. Cover envisions this distinction as any individual engaged in a moral choice, which
implicates moral integrity and blurs the line between rule making and rule application,
which necessitates that judicial hands should never be tied.
In such an anti-formalist view of the judge's role, judges are an
interpretive community conscious of their obligation to act as independent
moral choosers for the good of a society, in light of what that society is
and can become. The law, as long as it is part of a viable and developing
community, is neither ³found´' nor ³made,´' but continuously re-
interpreted. There are still rules. But there are no rules that can be
understood apart from their context; nor are there rules that can be
understood as fixed in time. Id at 818.
In the view of law as a pragmatic normative practice, law does not
disappear. But it is always open to people to recognize, in various ways,
that the law in the statute books is not the real law. Some practices are so
deeply accepted that they seem like immutable rules. Life according to
rules is not impossible but quite routine, as Wittgenstein saw. It is only

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that, if we take the pragmatic and hermeneutic view of law, our
understanding of rule-following must be reconstituted so that we know
that rules are neither formal in the traditional sense, nor eternal, nor
existing independently of us; and so that we know that every application
of them is a reinterpretation. We must know that each time we feel
ourselves to be rule-followers we are rule-creators as well.
Whether or not the term ³the Rule of Law´' should be dropped becomes
another pragmatic question, a matter of judgment about its ideological
baggage. Is the term indelibly linked in our usage with the ideas that law is
instrumental and consists of pre-existing formal rules applied in a value-
free manner? Or can its precepts be reinterpreted in the way I have begun
to suggest? If we can use the term in this new way, it seems that we would
at least have to drop the slogan, ³the Rule of Law, not of individuals.´' If
law cannot be formal rules, its people cannot be mere functionaries. Id at

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