A government of words: The social practice of judging in a rule-of-law system

The "Rule of Law" is a crucial liberal democratic norm. However, scholars disagree about whether American political institutions satisfy this norm. Those who study American courts, including Critical Legal Studies and Attitudinalist scholars, contend that judges flout the rule of law by making political decisions. By contrast, New Institutionalist scholars argue that judicial decisions are motivated by legal attitudes, but they have not offered any systematic defense against rule-of-law skepticism. Moreover, all these scholars rely too much on external evidence of judicial activities, which do not provide much insight into internal motivations and attitudes.; This dissertation contends that the rule of law does indeed prevail in American courts. First, I provide a theoretical reformulation of the rule of law. Tracing its history back to ancient and modern sources, I review the untenable traditional expectation that officials be externally constrained by clear and determinate legal rules. A more persuasive account focuses on the official's internal subjective attitude of obligation toward the rules. Second, I construct a "social practice" model of rule-of-law judging. Building on New Institutionalist and post-positivist theory, I focus on three components of judging, essential in constructing rule-of-law attitudes: community influences, legal language, and judicial virtue. Based on this model, I construct a typology of judicial attitudes: Formalist and Good-Faith attitudes, which are consistent with the rule of law, and Cynical and Rogue attitudes, which are inconsistent with this norm. Third, I illustrate the new model by investigating the attitudes of 24 state and federal appellate judges. Using a "depth-hermeneutic" approach designed to investigate the understandings and ideas that constitute the inner world of judges, I show that a large majority of judges I interviewed have Formalist or Good Faith attitudes. Even if the law is unclear or indeterminate, they still feel an obligation to subordinate their personal agendas to their best understanding of the law. I conclude that the rule of law should be seen as a workable norm, which can be observed in the thoughts and attitudes of judges and other governmental officials.