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Thoughtfulness and the Rule of Law

British Academy Law Lecture, delivered by Professor Jeremy Waldron FBA, on 1 February 2011 (venue: The British Academy).

The rule of law is sometimes associated with the precision and determinacy of legal rules, and the predictability of the environment that they provide. But it is important also to think about the various ways in which law helps to make us more thoughtful and reflective, governing us through standards and principles rather than through the robotic precision of rules. Whether in private law (with standards of reasonable care), or in human rights law (with norms prohibiting inhuman and degrading treatment), law sometimes invites its subjects to make thoughtful judgments about their behavior or about the situations that they face, structuring and channeling those judgments in various ways.

It would be a pity if we were to lose sight of this function of law; and it would be mistake to conclude that the rule of law is always hostile to the use of standards (and other ways of sponsoring and empowering thoughtfulness) and that it always encourages the replacement of vague and open-ended standards with clear and determinate rules. No doubt, standards are sometimes administered subjectively and unpredictably compared to rules; but rules can seem arbitrary, impervious and mechanical compared to standards. This lecture will reflect in general terms on the circumstances in which law's facilitation of thoughtfulness is appropriate, and on the dangers of losing sight of this aspect of the rule of law.

About the speaker
Jeremy Waldron is University Professor and Professor of Law at New York University, a position he has held since 2006. He has recently been elected to the Chichele Chair of Social and Political Theory at All Souls College, Oxford, which he will hold jointly with his NYU position beginning in 2011. Professor Waldron was born in New Zealand and educated in law and philosophy first at Otago University and then at Oxford. His career has included academic appointments at Edinburgh, Berkeley, Princeton, and Columbia. He delivered the Holmes Lectures at Harvard (on hate speech) in Fall 2009, the Tanner Lectures (on human dignity) at Berkeley in Spring 2009, and the Storrs Lectures (on the citation of foreign law) at Yale Law School in 2007. He was elected to the American Academy of Arts and Sciences in 1998 and has been selected for the award of the American Philosophical Society’s 2011 Henry Phillips Prize in Jurisprudence. His most recent book is Torture, Terror and Trade-offs: Philosophy for the White House (Oxford University Press, 2010).

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