Rules and Standards: A Critique of Two Critical Theorists

Authors

John P. Goebel

Abstract

This article attacks the Critical Legal Studies ("CLS") position that the rule of law is impossible. The article focuses on legal form, where two CLS scholars have asserted that the two choices for the form of a legal directive, rules and standards, each embody the conflicting ideological positions that characterize the political world. While acknowledging the inter-connectedness of form and substance, the article takes issue with the conclusion that because views regarding the proper form and substance of law differ on both descriptive and prescriptive levels, law then simply becomes the embodiment of the moral, political, and economic choices we make. The article suggests that the CLS position fails to adequately confront the claims of one side in the political debate, the individualists, that law as rules is more an example of restraint on choice and policy in law than a manifestation of that choice.

First Page

51

Recommended Citation

John P. Goebel, Rules and Standards: A Critique of Two Critical Theorists, 31 Duq. L. Rev. 51 (1992).
Available at: https://dsc.duq.edu/dlr/vol31/iss1/4