Legislative Theory and the Rule of Law: Some Comments on Ru­bin

Strauss, Peter

Rubin succeeds in persuading us that the traditional equation of "legislation" and "law" is problematic in the administrative state -- that legislation is more often concerned with the (other) organs of government from which "law" emerges than with its direct formulation. Yet even if we accept this as a natural development, not a disease of which the body politic should be purged, the relationships between those responsible for "legislation" and those responsible for "law" should be a matter of active concern. Our wish for law, for conditions that will conduce to its creation, remains relevant to any theories we may hold for legislation. If delegation and void-for-vagueness, for example, do not serve well as direct measures of the worth or validity of legislative products, they continue to embody systemic values deserving of respect and consequently influencing our notions of appropriate relations between the legislative and law making efforts to the extent those are distinct. An insight that properly turns our attention from performance to control needs to notice how various options on the placement or exercise of control may affect the law-character of the system's ultimate output. Congress is not the only institution controlling, and the new theory for which Rubin calls must be concerned both with separation-of-powers questions concerning the appropriate allocation of controls across the whole of government, and the probable impact on Congress's legislating of the various kinds of controls that might be imagined. While today's theory of legislation must be differentiated from our theory of law, one cannot free one from the other. Professor Rubin's analysis pays insufficient heed to the continuing relationships.


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April 28, 2016