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James A Grant, The Ideals of the Rule of Law, Oxford Journal of Legal Studies, Volume 37, Issue 2, Summer 2017, Pages 383–405, https://doi.org/10.1093/ojls/gqw025
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Abstract
Choices that are underdetermined by reason, such as choices arising from incommensurability among values, involve an element of arbitrariness, and arbitrary choices are commonly thought to be inimical to the rule of law. In this article, I suggest that we should distinguish between two different ideals of the rule of law, and that the arbitrariness of some judicial choices has different implications for these different ideals. One ideal of the rule of law can be understood as ‘the rule of authority’; the other can be understood as ‘the rule of reason’. The latter ideal is opposed to decisions that lack reason, but not to arbitrary choices between undefeated reasons. The arbitrariness involved in choosing between undefeated reasons may be a deficit in one ideal of the rule of law (the rule of authority), but not a deficit in the other (the rule of reason). Moreover, it is important to recognise that these are distinct ideals that can conflict, and not rival interpretations of a single ideal.
