Great piece. In the UK at least the problem is not so much with what issues are subject to JR, but courts' tendency to give Ministers or the executive no 'margin of appreciation', the old Wednesbury principle of clearly irrational decisions. Instead they see themselves as entitled, even required under Human rights legislation to retake the original decision, despite judges neither having the information, training or legitimacy to take such decisions at all
Rule of Law is crap. Law of the Jungle is coming back. Eye for an eye made the whole world blind? Oh so the only peeps with any eyeballs should be the bad guys running around plucking eyes. Got it.
Consequences, good and bad, are natural. The occur naturally. Everyone is done waiting years for some pedophile like H Biden to get pardoned in the end. It’s time for justice to become immediate, meted out to perps by the victims and their allies.
I’ve been thinking about these questions since your Admin seminar, where I wrote on Fuller and the internal limits of judicial review under the APA. I agree that conventional rule-of-law discourse fails to account for its own limits. But I’m still unsure about the implications of that view. It’s true that courts often acknowledge limits to their role. But even declining review can be an assertion of judicial authority—it defines the boundaries of legal power. Drawing those boundaries is itself a form of power, and the notion that law polices its own reach raises familiar concerns about circularity. Your framing treats those constraints as internal to law, and perhaps rightly so. The assumption is that external constraints—perhaps electoral accountability—do the rest.
But when certain domains are said to lie beyond both courts and law, the issue becomes sharper for the executive. If the executive alone defines the scope of his discretion, the power to limit one’s own power becomes difficult to contain. And unlike courts, the executive doesn’t merely interpret—he enforces. He commands a military. He acts with coercive force. Democratic oversight might temper that authority. But even the core mechanisms of democracy—elections, certification, peaceful transfer—depend on legal frameworks and adjudication. If courts and law withdraw whenever discretion or politics arise, we risk losing the infrastructure that makes those processes function. Perhaps that’s part of the point: that law cannot reach every form of public action. But if that’s so, it’s hard to see how constitutional governance—with its commitment to both legal limits and institutional accountability—remains intact.
To my mind, the value of courts isn’t that they always get it right. It’s that they lack the tools of coercion. Their power rests on persuasion and reason. That doesn’t make adjudication the whole of law. But it may explain why, when government power is most contested, we still look to courts—not for control, but for clarity
When it comes to violence, I'm ever shocked by others' lack of phronesis (practical reasoning). Soemtimes they get yappy...
"It's the ballot or the bullet."
We can, if we wish, seek to understand things a contrario, by looking at their opposite.
Let me tell you just exactly what the absence of the rule of law looks like. Assassinations. Muggings. Robbery. Embezzlement. "The war of all against all". Violence, force and fraud. No sense of honor, truth, nor justice: and as to mercy? That's for suckers.
These are, however, political remedies: the political IS violence, Staatsgewalt, the use of force. The fact the political IS congealed violence explains exactly why we seek to replace it with the economic and the legal.
Though, political remedies include things less violent than a thug with a gun claiming justice and right to rule. Things like: protests, tax strike, rent strike, picket lines, and our favorte taxation & takings including expropriation. Though, in extremis, terrorism and assassinations, not to mention lynch mobs and revolutions: all those are examples of a political remedy. The non-binding declaration of independence gets followed up by the direct enforcement of armed protest: either the rebels win or die.
The legal, in contrast, is the use of argument to constrain and compel force.
As to legal non-judicial remedies (as opposed to extra judicial...): impeachments, elections, votes in congress assembled. Of course non-judicial legal remedies are part of the rule of law: but my would-be intellectual superiors and know-it-all would-be dictators seem to think otherwise: after all, they have a plan!
Machiavelli puts it nicer than me. Let me be more direct. We have two ways of fighting: like men, with laws, or like beasts, with claws. My sad fate is to be squarely in Column B.
More uniquely informative content… and beautifully written. Thank you
Thank you sir! Appreciate it
Great piece. In the UK at least the problem is not so much with what issues are subject to JR, but courts' tendency to give Ministers or the executive no 'margin of appreciation', the old Wednesbury principle of clearly irrational decisions. Instead they see themselves as entitled, even required under Human rights legislation to retake the original decision, despite judges neither having the information, training or legitimacy to take such decisions at all
A good curative for Harvard law.
Rule of Law is crap. Law of the Jungle is coming back. Eye for an eye made the whole world blind? Oh so the only peeps with any eyeballs should be the bad guys running around plucking eyes. Got it.
Consequences, good and bad, are natural. The occur naturally. Everyone is done waiting years for some pedophile like H Biden to get pardoned in the end. It’s time for justice to become immediate, meted out to perps by the victims and their allies.
I’ve been thinking about these questions since your Admin seminar, where I wrote on Fuller and the internal limits of judicial review under the APA. I agree that conventional rule-of-law discourse fails to account for its own limits. But I’m still unsure about the implications of that view. It’s true that courts often acknowledge limits to their role. But even declining review can be an assertion of judicial authority—it defines the boundaries of legal power. Drawing those boundaries is itself a form of power, and the notion that law polices its own reach raises familiar concerns about circularity. Your framing treats those constraints as internal to law, and perhaps rightly so. The assumption is that external constraints—perhaps electoral accountability—do the rest.
But when certain domains are said to lie beyond both courts and law, the issue becomes sharper for the executive. If the executive alone defines the scope of his discretion, the power to limit one’s own power becomes difficult to contain. And unlike courts, the executive doesn’t merely interpret—he enforces. He commands a military. He acts with coercive force. Democratic oversight might temper that authority. But even the core mechanisms of democracy—elections, certification, peaceful transfer—depend on legal frameworks and adjudication. If courts and law withdraw whenever discretion or politics arise, we risk losing the infrastructure that makes those processes function. Perhaps that’s part of the point: that law cannot reach every form of public action. But if that’s so, it’s hard to see how constitutional governance—with its commitment to both legal limits and institutional accountability—remains intact.
To my mind, the value of courts isn’t that they always get it right. It’s that they lack the tools of coercion. Their power rests on persuasion and reason. That doesn’t make adjudication the whole of law. But it may explain why, when government power is most contested, we still look to courts—not for control, but for clarity
The Pascal quotation is missing a word at the end: “cela”.
Oh yes - thanks
"I do not claim to speak for Sunstein here." dude claimed machines couldn't do legal inference. in an lrev.
aged well
When it comes to violence, I'm ever shocked by others' lack of phronesis (practical reasoning). Soemtimes they get yappy...
"It's the ballot or the bullet."
We can, if we wish, seek to understand things a contrario, by looking at their opposite.
Let me tell you just exactly what the absence of the rule of law looks like. Assassinations. Muggings. Robbery. Embezzlement. "The war of all against all". Violence, force and fraud. No sense of honor, truth, nor justice: and as to mercy? That's for suckers.
These are, however, political remedies: the political IS violence, Staatsgewalt, the use of force. The fact the political IS congealed violence explains exactly why we seek to replace it with the economic and the legal.
Though, political remedies include things less violent than a thug with a gun claiming justice and right to rule. Things like: protests, tax strike, rent strike, picket lines, and our favorte taxation & takings including expropriation. Though, in extremis, terrorism and assassinations, not to mention lynch mobs and revolutions: all those are examples of a political remedy. The non-binding declaration of independence gets followed up by the direct enforcement of armed protest: either the rebels win or die.
The legal, in contrast, is the use of argument to constrain and compel force.
As to legal non-judicial remedies (as opposed to extra judicial...): impeachments, elections, votes in congress assembled. Of course non-judicial legal remedies are part of the rule of law: but my would-be intellectual superiors and know-it-all would-be dictators seem to think otherwise: after all, they have a plan!
Machiavelli puts it nicer than me. Let me be more direct. We have two ways of fighting: like men, with laws, or like beasts, with claws. My sad fate is to be squarely in Column B.
Pick A. Things will go better.
But I'm an extra-judicial kinda fella.