Hofstra Law Review
Abstract
This Article claims that law and the rule of law ought not be seen as coextensive concepts, for if a legal order’s deviations from rule of law ideals count equally as departures from criteria for being a legal system at all, then the rule of law loses motivation as a discrete concept. In turn, the Article emphasizes the need to galvanize critical assessments of the legal system rooted in rule of law moralities. Toward this end, the argument shifts the terrain on which we discuss law’s nature from concepts to conceptions, critiquing certain currently influential conceptions, with special emphasis on the planning and thoughtfulness conceptions. The Article then offers a bottom-up regulative conception of law that in turn grounds both (1) a conceptualization of law that accommodates the wide variety of experiences, whether empowering or burdensome, by virtue of which community members will intersubjectively deem themselves to be in the grip of a legal system’s norms; and (2) a well-motivated and multifaceted understanding of the rule of law project capable of challenging legally “valid,” albeit oppressive, legal structures. While mainstream scholarship views the rule of law construct generally as instilling norms that sustain stable governance, critics have often pointed to its vulnerability, particularly in its rule by law guise, to being exploited in service of ruling ideologies. The Article contends that, far less appreciated, the rule of law project can be conducive in its moral evaluative commitments to an oppositional ideology in service of democratic agency and an ameliorative social function.
Recommended Citation
Golanski, Alani
(2026)
"Conceptions of Law, Ideology, and the Rule of Law,"
Hofstra Law Review: Vol. 54:
Iss.
3, Article 2.
Available at:
https://scholarlycommons.law.hofstra.edu/hlr/vol54/iss3/2