The Rule of Law and the Inevitability of Discretion

Abstract

Responding to Richard Epstein's writings on the rule of law in the administrative state, this paper argues that it is impossible to advance a compelling conception of the rule of law that relies entirely on confining government discretion through clear rules. What is needed is a conception of the rule of law rooted in institutional practice, in which the written documents of law [are] buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority, even when relevant rules are vague and enforcement prospects are remote. Administrative rule-making may well advance these values better than congressional legislation.