Abstract

What makes Law? So formulated, the question is an ambiguous one. On what I will call the micro-level, it asks for the successful conditions for an assertion of law, what justifies or provides the truth conditions for claims such as ‘ I have a legal right to ϕ ’ or ‘ you broke the law ’. Much of the debate between Ronald Dworkin and Stanley Fish concerns this question; for example, the role that theory plays in actors’ identification of the law, or the constraints, if any, that legal materials themselves impose on what counts as an interpretation of them. At the macro-level, the question ‘what makes law?’ concerns the features that distinguish a genuinely legal political order from other types of political order. Or, in the somewhat archaic phrase, what makes it the case that a society is ruled by law and not by men? I will argue that Dworkin and Fish agree on the answer to this question, and so too does the contemporary international legal theorist Martti Koskenniemi. Specifically, each of them identifies law with a practice of government informed by fidelity to the ideal of the rule of law, or legality. All three theorists conceive of legality as an attitude, mindset, or approach to constructing the social world, one that is most fully developed in members of the legal profession, or what is the same, those who have been habituated into a culture devoted to the ideal of govern- ment in accordance with the rule of law. And all three develop their account of law as a practice of government informed by legality by contrasting it with an instrumental or managerial approach to government.

Document Type

Book Chapter

ISBN

9781509961795

Publication Date

8-24-2023

Publisher Statement

© Bloomsbury Publishing Inc 2024

You may purchase a copy of the book here: https://www.bloomsbury.com/us/new-essays-on-the-fishdworkin-debate-9781509961795/

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