Between Rationality and Benevolence

Abstract

This chapter demonstrates the pervasiveness of the first constitutive tension of the realist conception of law—between power and reason—in both law and legal theory. More precisely, it examines a somewhat related dualism: that between rationality and benevolence. It looks at two actors who are the central heroes of the legal drama: the subjects of law (the ordinary people who are the focus of private law) and the carriers of law, centering on judges, on whom legal theory places much of its spotlight. First, the chapter shows how law assumes its subjects' rationality and also seeks to transcend it. It demonstrates how legal theory presents a mirror image of this seeming paradox insofar as judges are concerned: while it expects judges to transcend their self- and group-interest, it suspects that this ideal neither will nor can be perfectly attained. Second, it explains and ultimately celebrates these ambivalences. Finally, it sketches the complex ways by which law and legal theory face the challenge of sustaining these ambivalences.