The Rule as if of Law: Transcending the Conceptual Contest

Abstract

The ongoing competition between analyses of the Rule of Law suggests that it might be an essentially contested concept. It is often noted that a literal rule by law and not by humans is a practically impossible state of affairs, and the impossibility of this original formulation may explain the intractability of the conceptual contest. Yet, it also shows that an analysis of the Rule of Law that can deliver on the original formulation stands above its competitors. Such a privileged analysis is achieved by regarding the Rule of Law as a fictional discourse concerning the way in which law is discovered and not made by humans. The theoretical resources used to explain the determination of fictional truths in fictional narratives can then be used to explain how judges genuinely defer to the rationale of a fictional discourse of discovered law, constraining judicial power and the social power it approves.