On Law and Utopia: Rules vs. Principles? — A Comment on Ramiro Avilés's Reply

TLDR: In this paper, the authors argue that there is no necessary contradiction between a legalistic society and a Utopian society, and that the possibility of law in human utopias is not a contradiction between the two types of ideal societies.

Abstract: engaged in just that: visions of a Utopian society. It is therefore worthwhile to understand the conceptual elements of a Utopian society; practical and theoret ical insights derived from such understandings can prove useful to the study of law, and vice-versa. Among them is the understanding, brought forth by Pro fessor Avil?s, that there is no necessary contradiction between a legalistic society?that is, a society based on the rule of law?and a Utopian society. We subscribe to Ramiro Avil?s's convincing arguments on that point. The purpose of the essay that sparked the debate (Almog) was to illus trate, through literary narratives, the very same notion, namely the possibility, if not the inevitability, of law in human utopia. The two stories demonstrate, in our opinion, that in a Utopian state?as defined by the system itself, in this case Judaism?law exists and people turn to law. Thus the prevalent view that 'the better the society is the fewer laws there will be,' should not necessarily be accepted. In fact, the literary examples point to the contrary.1 As a matter of Utopian theory, our debate with Professor Ramiro Avil?s is not so much about the essence of definition of Utopia?we can accept, for the sake of argument, Ramiro Avil?s's theoretical distinction between the types of ideal societies.2 The debate, it seems, centers on the nature of law. Professor Ramiro Avil?s claims that the literary examples put forward do not support the conclusion that law has a place in Utopia, because these two stories are not examples of rule-based legalistic decisions. We should distin guish, Professor Ramiro Avil?s correctly notes, between a rule-based and a feg /-rules-based society. Professor Ramiro Avil?s then proceeds to explore the judgments in the two examples, and suggests that the decisions of the Messiah and King of Kasiah are exercises of authority in a highly discre tional, ad-hoc fashion, via informal procedures, by rulers who base their legitimacy on tradition or charisma, rather than on Weberian bureaucratic rationality. This model of adjudication, that cannot guarantee predictability and certainty as it is not grounded on any prefixed rules, is a far cry from a legal-rules-based society, according to Professor Avil?s.