New York University Public Law and Legal Theory Working Papers

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The rule of law is sometimes associated with the precision and determinacy of legal rules, and the predictability of the environment that they provide. But it is important also to think about the various ways in which law helps to make us more thoughtful and reflective, governing us through standards and principles rather than through the robotic precision of rules. Whether in private law (with standards of reasonable care), or in human rights law (with norms prohibiting inhuman and degrading treatment), law sometimes invites its subjects to make thoughtful judgments about their behavior or about the situations that they face, structuring and channeling those judgments in various ways. The paper focuses on three ways in which law itself sponsors thoughtfulness and argumentation: (1) first, in its use of standards (as well as rule); (2) secondly in the way legal procedures structure and facilitate argumentation; (3) in the way precedents provide shared premises for argument. It would be a pity if we were to lose sight of these functions of law; and equally it would be a pity to distinguish too sharply between these key features of law and the aide of the rule of law. This paper reflects in general terms on the circumstances in which law's facilitation of thoughtfulness is appropriate, and on the dangers of losing sight of this aspect of the rule of law.

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certainty, positivism, precedent, predictability, procedure, rule of law, rules, self-application, standards, stare decisis