Redundancy has a bad reputation among legal intellectuals. My interest in the virtues of redundancy grows out of my interest in the social function of the liberal conception of justice and the rule of law. In this essay, I propose that legal theorists pay serious attention to the concept of redundancy used by engineers. I explain how redundancy-in this special sense-is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. I will describe the virtues of redundancy in legal thought. I want to explain why it is useful to rely on two (or more) different modes of analysis even though in many cases these modes of analysis are "superfluous" or redundant insofar as they generate the same result and even though such reliance will at times yield conflicting evaluations. Indeed, I want to claim that such conflicts serve an important function. I begin by briefly summarizing my thesis, then looking at least three reasons explain why the virtues of redundancy are so commonly overlooked. Next, I discuss some well-known examples of a divergence between justice and the rule of law to illustrate various ways we deal with such divergence. Finally, I discuss how to cope with intractable conflicts between competing modes of analysis.
Randy E. Barnett,
The Virtues of Redundancy in Legal Thought,
38 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol38/iss1/11