Justice Antonin Scalia gave a famous lecture at the Harvard Law School arguing that the rule of law is a law of rules. He was making the point that the Anglo-American system has expressed a preference that text and tradition should restrain judicial decision-making. As Ralph Rossum describes it, “where the text embodies a rule, judges are simply to apply that rule as the law.”
Although Scalia was speaking mostly about the constitutional text, the same interpretive approach assists in other issues. For example, the common law developed over time numerous rules to govern and discipline the legal process. Bypassing such rules in the hope of achieving the “right” legal ends results in arbitrary diktats of the judiciary that are unpredictable and subject to passing political fancy rather than enduring principles.
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