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A Virtue-Centered Account of Equity and the Rule of Law

  • Lawrence B. Solum
Chapter

Abstract

This essay explores the relationship between two notions, the rule of law and equity. One important ideal of western legal systems is captured by the phrase, “the rule of law,” and one interpretation of that ideal can be expressed in the proposition that the rule of law requires a law of rules.2 A second legal ideal is sometimes called “equity,” and a common interpretation of the notion of equity is that legal decision makers sometimes ought to depart from the rules in order to do justice in particular cases. Given these interpretations of equity and the rule of law, the two ideals seem to be in tension. The resolution of that tension at the level of theory is one of the classic projects of jurisprudence or legal philosophy.

Keywords

Legal Rule Practical Wisdom Attorney General Nicomachean Ethic Moral Perception 
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Notes

  1. 2.
    The notion that the rule of law should be understood as a law of rules is expressed in a recent article by Justice Antonin Scalia. Antonin Scalia, The Rule of Law as a Law of Rules, 56 University of Chicago Law Review (1989).Google Scholar
  2. 5.
    For example, see Morton Horwitz, The Rule of Law: An Unqualified Human Good?, 86 Yale L. Rev. (1977), pp. 561–566,Google Scholar
  3. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), pp. 263–265,Google Scholar
  4. and Allan Hutchinson and Patrick Monahan, Introduction in The Rule of Law: Ideal or Ideology (Allan Hutchinson and Patrick Monahan, eds, Toronto: Carswell, 1987).CrossRefGoogle Scholar
  5. 10.
    John Rawls, A Theory of Justice (Cambridge: Harvard, 1971), p. 235.Google Scholar
  6. 27.
    See Randy Barnett, Foreword: Unenumerated Constitutional Rights and the Rule of Law, 14 Harv. J. L. Pub. Pol. 616–617 (1991).Google Scholar
  7. 39.
    Nancy Sherman, The Fabric of Character, p. 15 (italicization of logos added). The quoted passage refers to Nicomachean Ethics, pp. 1134a29–1134b2. For an elaboration of Aristotle’s views, see Ernest J. Weinrib, The Intelligibility of the Rule of Law, in The Rule of Law: Ideal or Ideology (Allan Hutchinson and Patrick Monahan, eds), p. 59. See Michael Moore, The Semantics of Judging, 54 S. Cal. L. Rev. (1981), 151, 291–292.Google Scholar
  8. 51.
    See Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958). A similar point has been made by Michael Moore.Google Scholar

Copyright information

© Colin Farrelly & Lawrence B. Solum 2008

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  • Lawrence B. Solum

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