Elkins, “A Paradox in the Concept of Law”
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1. Two Concepts of Law: the Grand and the Tame
This paper is part of a book-in-progress, with the working title, The Grand and the Tame:
Promise and Constraint in the Vision of Law. By “grand” and “tame,” I mean to refer to two sets of
fundamental ideals in our conception of law. These ideals stand in tension with each other, and
many of the deepest conflicts within and about law, I want to suggest, are part of that tension.
The categories “grand” and “tame” are broad indeed—they might be understood even as
dispositions or tendencies of thought—and they are meant to cover a rather varied array of
particular claims and accounts. Indeed, the categories of “grand” and “tame” are important, I
think, precisely because they represent common strands that run through such a wide variety of
legal debates that we may tend to ignore how these particular debates about law are part of a
larger tension.
The contemporary debate between, on the one side, various theories of (what might be
called) law-as-justice,
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the most prominent version of which is Ronald Dworkin’s, and, on the
other side, various theories of legal positivism, represents one form of the clash between the
grand and tame ideals. But while this debate has contours that are specifically modern, it is
connected to an on-going tension in the concept of law, a tension that goes back certainly to
Greek and Roman thinking about law and that we might imagine was present, if
unconceptualized, from the beginning of law itself. This tension can take a number of different
forms: between the eternal unwritten law and written law (in fifth century Athens, nomos
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Sometimes this is referred to as a “natural law” view, but that term can be misleading, so I avoid it here.
Convention