The law does not exist to guide us

Abstract

It has become a popular view in jurisprudence that the law exists to guide us. I argue in this article that it is plausible to think that the law does not necessarily exist to guide us. I do this while accepting that the law is necessarily normative. The upshot of the argument is significant. Viewing an attempt to provide guidance as a necessary feature of the law gives rise to a distinctive mode of operating that some think has inherently valuable qualities. We get to say, for example, that the rule of law provides some necessary constraints on how laws should be designed. These valuable aims and constraints become external aims and constraints once guidance is jettisoned from the concept of law. It would not, for example, be true just in virtue of the very nature of law that it should not be secret or oppress people into conformity.