Context and Reflection
For the moment, this is a placemarker. I am in the midst of (avoiding) studying for my final final, and should not be taking the time, at 1:38am, to crystallize my jurisprudential sympathies. Impetuous, however, is the name of the game!
In the late 19th century, Oliver Wendell Holmes noted that the time of the black-letter man of law was drawing to a close. He forecasted the rise of the Economic Analysis of Law, and formatted the American Legal Realist program, which remains dominant (in its many derivative forms) in jurisprudence today. The critical insight of the legal realists was the influence that experience, culture, and intention have on legal practice. The incumbent conception of the day was largely that of Christopher Columbus Langdell, whose aggressively positivistic "scientific law," built on syllogism and empiricism, was obviously incommensurable with the facts on the ground.
Insightful as they could be, the realists and their Critical Legal Studies spores entrenched themselves in cynicism to a degree no less dogmatic than the legal positivists' attachment to empiricism. As a syllogistic jurisprudence failed to describe the actions of lawyers, legislators, and judges, so failed the realists.
Between these extremes falls the work of Ronald Dworkin (no relation to Andrea Dworkin). Dworkin proposed that, beyond the rules of law lie principles. He illustrated this through a study of the opinions given in "landmark cases". Often, these decisions tend to shame precedent, if not the law itself, into submission by pointing out the failure of the law to account for a necessary "principle". One such example was the infamous Riggs case in which a grandson named in the will of a recently deceased grandfather was denied the opportunity to collect the terms. The grandson murdered the grandfather, and stood to collect a significant reward. The courts ruled that, despite the fact that the law made no special provision for such a case, one could not benefit from his own crimes under the law, and chose to deny him the terms of the will. Here, the statement that one cannot benefit from his own crimes under the law stands as a principle, outweighing the normative status of approved legislation.
Whether or not this is right, the application of principles to legal decisions seems more accurate than the idea that a judge is always motivated by internal political aims, unrestricted by the paltry written word (as the Law and Literature movement would have it).
This, of course, does not solve the legitimacy issue, nor does it explain how political aims do get written into the law (since they clearly do at times...). Where a judge is empowered to make decisions unsubstantiated by law, or more, contrary to law, it is reasonable to suspect that this qualifies as a violation of the "Rule of Law". While the realists aimed to simply fill the space where the law "runs out" (fails to cover a specific type of legal case, as in Riggs) with social sciences, free-market economics, feminist theory, literary theory, or whathaveyou, Dworkin's pseudo-Natural Law analysis is at once less conspicuous and more intuitive. The difficulty with trying to fill in the lines with, say, free-market economics (Posner, for instance), is that market relations do not accurately reflect the spectrum of human interaction. While it is valuable to analyze "subsidizing" industrial pollution under an economic lens (the Coase Theorem) , it is awkward to evaluate harassment through supply and demand models.
good lord, it's 2:20 in the morning. I'll be back.