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Introduction
As urgently as ever, the rule of law is a paradigm worth revisiting. As one leading theorist has said, “[r]ecent developments in Poland, Hungary, and elsewhere have raised disturbing questions about the conditions and nature of the rule of law and of threats to it.”
Martin Krygier, What’s the Point of the Rule of Law?, 67 Buffalo L. Rev. 743, 745 (2019).
Elsewhere's domain is now widely deemed to include the American experience, its iconic claim of governance by the rule of law having lost its seeming immunity from grave challenge.
What do theorists reference, however, when they speak of the rule of law? It hasn’t always been clear whether they have trained their sights on formulating a robust concept or, with some distinction, on grappling with what it means to have rule by law and then importing those characteristics into an idea of the rule of law.
See generally Brian Z. Tamanaha, Onthe Rule of Law: History, Politics, Theory 96 (2004) (opining that “it is correct to conclude that formal legality has more in common with the idea of rule by law than with the historical rule of law tradition”).
The somewhat diaphanous border between the two notions has been well-rehearsed, the rule of law often being described in terms of rule-by-law's formal features and arguably thin constituent elements, and sometimes alternatively in terms of thicker procedural and substantive rule-of-law conceptions.
See Robert Barros, Dictatorship and the Rule of Law: Rules and Military Power in Pinochet’s Chile, in Democracy and the Rule of Law 188, 189–90 (José María Maravall & Adam Przeworski eds. 2003) (distinguishing the “narrow,” “formal” conception of “rule by law” from a “more demanding” notion of the rule of law); David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order, 27 Cardozo L. Rev. 2005, 2031 (2006) (writing that someone endorsing a fairly think conception of the rule of law will likely conclude “that there is a point on a continuum of legality where rule by law ceases to be in accordance with the rule of law”); Stephen Holmes, Lineages of the Rule of Law, in Democracy and the Rule of Law 19, 49 (José María Maravall & Adam Przeworski eds. 2003) (noting Rousseau’s idea that, “in existing societies, rule of law and rule by law occupy a single continuum and do not present mutually exclusive options”); cf. Joseph Raz, The Authority of Law: Essays on Lawand Morality 222 (2d ed., Oxford U. Press, 2009) (saying “[c]onformity to the rule of law is a matter of degree”).
The prevalent approach puts attributes first, assigning certain largely non-negotiable features of laws, lawmaking, official accountability, and sometimes legal systems as rule-of-law virtues, and then contemplating whether to go further, and if so how much further without diluting the distinctive value of the rule of law.
See John Tasioulas, Penultimate version: The Rule of Law, in The Cambridge Companion to the Philosophy of Law, at *4 (John Tasioulas ed., 2020) (John Tasioulas ed., forthcoming), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216796 (visited Jan. 14, 2020).
Seen that way, it's useful to reflect upon the extent of the overlap between qualities of the rule of law and those requisite to considering an arrangement of governance to be a legal system.
This article advances a novel view of the rule of law.
The context in which I use the phrase the rule of law should make clear that the reference is not to a particular rule or type of legal institutional pronouncement, but rather to the larger term as commonly used in ordinary discourse.
I think that the rule of law is an evaluative lens by virtue of which participants in the legal system and individuals in the larger community assess the legal system's functioning. A rule of law appraisal is a certain type of evaluation that, for the most part, is appropriately delimited by imperative legal procedural concerns. A disciplined focus on broadly conceived procedural concerns (1) retains the distinctive values connoted by a rule-of-law evaluation, (2) appears to align empirically with the way most people think of the rule of law, (3) implicates the material conditions that impact people's actual capabilities to participate in governance, and thereby (4) accommodates a wide ethos that tasks the rule of law with fairly heavy lifting. As such, the concept holds a structural position in the collective normative discourse, functioning as a vehicle for morally evaluating the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system's treatment of those individuals and groups.
Being vigorously procedural, the rule of law focuses not solely on static features such as the clarity and generality of legal norms, but on questions of access to justice and the legal system's openness to the ordinary citizen or other participants in the legal process.
Citizenship is not requisite to seeking legal redress in the American legal system. See Graham v. Richardson, 403 U.S. 365, 371 (1971) (reaffirming that the Constitution “entitles both citizens and aliens to the equal protection of the laws of the State in which they reside”). But, for economy’s sake, I will often just use “citizen” to refer to anyone having legal rights in the society.
Ordinary individuals seeking redress are entitled to the opportunity to advance their claims and to have their arguments treated with dignity and considered fully, without regard to their social or economic status.
See Jeremy Waldron, Dignity, Rank & Rights 33 (2012) (hypothesizing that “the modern notion of human dignity involves an upwards equalization of rank, so that we now try to accord every human being something of the dignity, rank, and expectation of respect that was formerly accorded to nobility”).
Yet the very social and economic conditions that determine that status impact the integrity of the rule-of-law project. If the individual is not afforded open and dignified access to the legal system, then the rule of law is diminished—which means that the rule-of-law evaluation of the legal system comes out poorly.
Hence the rule-of-law project concerns not solely the quality of the legal system's outputs, but also the capabilities of the people, acting responsibly on their own behalf, to participate free of avoidable external obstacles. Those outputs include law's formal rules and procedures that condition the nature and ease of entering into law's argumentative or legislative structures. In other words, although the general rules governing equality of access to justice, and the standards that apply to everyone and that structure participation in the legal system, guide the nature and form of inputs, these rules are themselves law's outputs. This may be enough to realize a procedural version of the rule of law affording “a mode of governance that allows people a voice, a way of intervening on their own behalf in confrontations with power.”
Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 8 (2008).
Yet the well-being of the rule-of-law project demands more to the extent that asymmetries of political power and economic well-being trammel people's capabilities to take advantage of the pathways that may formally be open to them.
See Jean-Jacques Rousseau, A Discourse on Inequality 133 (Maurice Cranston trans., 1984) (1755) (discussing “all the different masks behind which inequality has hidden itself up to the present time”).
Law's procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality and on an equal basis with others, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. The issue of people's real world capabilities to obtain access is tightly-enough circumscribed to remain as a legitimate rule-of-law concern, while at the same time implicating social, political, and economic conditions. We can readily understand that the substantive requires the procedural, for how can one obtain substantive legal relief without having passed through procedural doors,
See Frederick Schauer, Playing by the Rules 170 n.7 (1991).
but it is also the case that the capability to pass through such doors rests on at least some important substantive guarantees or the absence of certain substantive deprivations.
It is nevertheless important to recognize that the rule of law is not a doctrine that constrains the legal system or its functioning from within. Jurists seldom use the expression, and even when they do this is to provide some level of heightened justification for a free-standing legal practice or doctrine, such as stare decisis.
E.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019) (calling adherence to precedent “a foundation stone of the rule of law,” such that “any departure from the doctrine demands ‘special justification’ – something more than an argument that the precedent was wrongly decided”) (omitting citations and markings).
Courts are free to enlist extra-legal considerations when shoring up the legitimacy of a legal doctrine,
See Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System 214–15 (2d ed. 1980) (1970).
and use of the rule of law to do so – again, on very rare occasion – does not render the ideal a legal precept. Indeed, the judiciary's occasional reference to the rule of law is typically dicta, and little different from use of the term by any theorist or commentator who may be gazing critically at the legal system's options and aspirations.
See, e.g., Ardi Imseis, “Moderate” Torture on Trial: Critical Reflections on the Israeli Supreme Court Judgment Concerning the Legality of General Security Service Interrogation Methods, 19 Berkeley J. Int'l L. 328, 348 (2001) (saying, “for all its dicta attesting to the importance of the ‘rule of law,’ and the maintenance of a legal system that is ‘reasonable’ and ‘fair,’ the HCJ’s [High Court of Justice] ruling in the GSS [General Security Service] Torture Case suggests that the integrity of the Israeli judicial process may have been forsaken for the cause of state ‘security’”); Zachary S. Price, Symmetric Constitutionalism: an Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1297 (2019) (opining that, “as Chief Justice Marshall, in another polarized period, made the pro-Jeffersonian outcome in Marbury v. Madison effectively symmetric by including extended dicta on judicial review and the rule of law, so too might express reference to situations not before the Court today help render politically fraught decisions more palatable”).
So the rule of law is a concept that operates outside of the legal system, although participants in the legal community may summon it from time to time. Even then, however, the rule of law functions as a filter through which the participant gazes from the external point of view at the system's institutional actions. The filter is an evaluative one, and therefore may seem on rare occasion to be capable of helping legal officials decide things from the internal point of view. But on the very rare occasion when they reference the rule of law, those officials invoke the concept from the observer's point of view to better justify their handling of a standing, internal legal doctrine.
E.g., Koschkee v. Taylor, 929 N.W.2d 600, 614 (Wis. 2019) (remarking that “[r]eallocating the making of rules . . . from the legislature to administrative agencies housed within the executive branch, aggrandizes the power of the latter, at the risk of replacing the rule of law with the rule of men”) (Rebecca G. Bradley, J., concurring).
As a moral lens situated outside of legal doctrine and law's practical affairs, the rule of law ideal empowers the public to evaluate legal institutional action and well-being, and legal officials on occasion to assay their own decision-making. Although legal discourse is rife with moral terminology incorporated into law's data,
See Scott Shapiro, Legality 245 (2011) (explaining that, from the start, law students “are taught about floodgates, slippery slopes, unclean hands, frustrated expectations, cheapest cost avoiders,” and so forth).
courts are typically hostile to explicitly moral argument.
E.g., Steele v. Isikoff, 130 F. Supp. 2d 23, 31 (D.D.C. 2000) (emphasizing that “moral obligations do not give rise to contractual liability”); Petrosky v. Embry Crossing Condominium Association, Inc., 643 S.E.2d 855, 860 (Ga. App. 2007) (“Wade’s statement as the agent of the alleged tortfeasor can be considered, at best, an acceptance of moral responsibility, because . . . the Association has no liability”).
The difference is that moral factors once subsumed into legal doctrines can be assessed in a nonmoral and backwards-looking manner to determine whether the new situation “falls under” the prior rule or precedential treatment of the similar matter.
See Herbert L. A. Hart, The Concept of Law 88 (3d ed. 2012) (1961).
Moral argument, on the other hand, “would effectively unsettle the very matters that the law is meant to settle.”
Courts nevertheless sometimes, albeit rarely, do invite use of moral considerations as a counterpoint to the engrained approach to legal argument based on precedent.
E.g., Flagiello v. Pennsylvania Hosp., 208 A.2d 193, 201 (Pa. 1965) (admonishing adherents of the charitable immunity rule that they “never inquire whether the doctrine is grounded in ‘good morals and sound law,’ . . . They are content to refer to previous decisions of this court, and of other courts, as if yesteryear could do no wrong and as if the hand of the past must forever clutch the helm of the present”).
As unusual as express resort to moral argument is in the courtroom, however, reliance on the rule of law as a sui generis consideration is all the more disconsonant with legal practice. Nor for the most part do jurists, either by virtue of their legal education or professional experience, have any special epistemic expertise at reckoning how the rule of law ideal ought to impact the outcome of particular cases.
What follows? My positive thesis is that the rule of law concept serves as an informal normative operator by which the people morally evaluate a legal system in progress. The evaluation is largely conditioned by people's expectations arising from constitutional constraints and guarantees, and from beliefs about how the system ought to treat individuals who submit their claims or defenses, or who would do so, in an unfettered manner, if sufficiently capable. In the latter sense, the rule-of-law evaluation implicitly takes account of the social, political, and economic conditions that impact citizens’ access to procedural justice.
The term access in this formulation should not be read as narrowly restricted to those who affirmatively initiate contact with the legal system, but in the broader sense as referring to all those who, for any reason, find themselves interacting with the state’s legal apparatus.
When those conditions unfairly favor some over others, or unjustly disadvantage this group but not that one, then the rule-of-law project is impaired.
Because people use the rule of law as an informal moral operator by which they evaluate a legal system based on what they deem to be both possible and morally justified at the particular historical moment, the assessment takes account not only of the system's manner of providing access, via its rules and accommodations as outputs, but also of societal conditions that may frustrate the capabilities of individuals and groups to obtain that access, or that may impact legal institutional responses to their participation. This approach renders the rule of law both consequence and context-sensitive, rather than invariant, even as legal theory has tended to view the rule of law in fairly static terms.
Understanding the rule of law as an informal moral operator (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, and (3) helps explain why citizens come to expect law both to constrain official coercive powers and to promote their actual capabilities to partake of the legal system on an egalitarian and dignitarian footing.
Part I will show why a separation between the concept of law and that of the rule of law is analytically motivated. The divergence stems not solely from the differing conceptual nature of the two programs, but also from their distinguishable functions. While legal systems emerge to regulate and coordinate the community's affairs in a way that rests on systems of legislation, argumentation, and adjudication,
See Jean-Jacques Rousseau, The Social Contract (1762), reprinted in Jean-Jacques Rousseau, The Social Contract and The First and Second Discourses 179 (Susan Dunn ed., Susan Dunn & Henry J. Tozer trans., 2002) (asserting that “[l]aws are properly only the conditions of civil associations”).
the rule of law aims at monitoring the law's operation and accessibility. Resolution of legal controversies in one way or the opposite way may have no impact on the system's status as a legal system, yet simultaneously engender intractable rule-of-law disagreements. This Part disagrees with arguments, however elegant, in favor of the symmetrical alliance between those concepts.
Part II then sets out the positive, structuralist theory of the rule of law. Rather than breaking the rule of law down into its essential features, which may vary in varying contexts, a structuralist approach looks at the rule of law at a more basic level, namely, by asking how the concept actually functions in a society.
The structuralism I use in this paper refers to the rule-of-law construct, in a fairly straightforward manner, as a device by which people morally evaluate paramount procedural and access-related characteristics of legal systems in relation to the larger society, and does not profess to derive from the method propagated by Ferdinand de Saussure or adopted as a semiotic approach to legal history by the Harvard School of legal structuralism. See generally Ferdinand de Saussure, Course in General Linguistics (Wade Baskin trans., 1959) (1916); Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev. 205 (1979).
From that perspective, the rule of law is seen as a lens through which people evaluate, usually in moral terms, a legal system in progress. The rule-of-law appraisal does not lavishly assign outcomes, but mostly implicates the procedural values the community counts on the legal system to abide by. These values include not only such well-rehearsed outputs of lawmaking such as the generality, clarity, prospectivity, and stability of the laws, but also the opportunity for roughly equal access to legal remedies across individuals and groups. Theorists have failed to account for the significance of the latter requirement, which reaches beyond law's outputs that set up procedures for regulating the community's inputs. The rule-of-law project also touches upon the conditions in which individuals live and the ways in which groups are treated, to the extent that these impact upon their actual capabilities to gain procedural access to the legal system.
Part III continues that, because the rule of law aims at evaluating and regulating law's moral standing, the concept must be supple enough to accommodate the ways in which the legal system interacts with the larger society at the particular historical moment. At the same time, however, the moral dialectic characterizing rule-of-law evaluation should hamper authoritarian leaders’ propensities to point to some current affair as an excuse to depart from, or to remain apart from, the rule-of-law values that are actually realizable during the period. Conditions impacting a diversity of stakeholders—and particularly the most disadvantaged within the population—perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal remedies. Whether the legal system debilitates efforts at lessening the oppression of disfavored groups by impairing their practical ability to summon law's remedial potential, or alternatively empowers struggles toward this end, is relevant to the sort of evaluation of the legal system's functioning that constitutes a rule-of-law exercise.
In sum, viewing the rule of law as a moral evaluative vehicle, this paper's account is structural rather than attribute- or virtue-driven. Except in a broad functional sense, I do not hash out the terms or parameters of a concept of the rule of law. In the structural analysis, a mechanism for evaluating the legal system—the rule of law— has to consider both sides of the matter: not solely the legal system's superintendence over the people, but also the impact of the conditions the people encounter and under which they live on their capabilities to access the system. A structuralist approach views the rule of law as it fits and operates in a society's discourse, and thereby concerns its implications both for the legal system and for the population subject to or empowered by that legal system. Being structural, this analysis does not clutter the ontology of attributes or make unconstrained assignments for the rule of law. For this reason, the structuralist concept, even in service of an expansive ethos that implicates the conditions in which people live, shouldn’t be seen as imprudently promiscuous.
Because theoretical discrepancies both reflect and influence what scholars, legal officials, and ordinary speakers mean by the rule of law, the term's use and meaning remain unsettled. Commentators report that “it is not entirely clear exactly what the concept of the rule of law amounts to,”
Imer B. Flores & Kenneth E. Himma, Introduction to Law, Liberty, and the Rule of Law 1, 2 (Imer B. Flores & Kenneth E. Himma eds. 2013); see also Aleardo Zanghellini, 28 Yale J. L. & Humanities 213, 213 (2016) (saying that “[a]n uncontroversial definition of the rule of law eludes us”).
“the current pervasive disagreement about the ‘Rule of Law’ has resulted in a discourse where participants are often talking past one another,”
Courtney T. Hamara, The Concept of the Rule of Law, in Law, Liberty, and the Rule of Law, supra note 24, at 11, 12.
and “[t]he danger of this rampant uncertainty is that the rule of law might devolve to an empty phrase . . . .”
As can be seen just from these expressions of angst, however, there is some degree of confusion about whether we want to be talking about the rule of law as a societal phenomenon, or about the rule of law as an expression we use in various ways.
See Donald Davidson, Quotation, 11 Theory and Decision 27 (1979), reprinted in Donald Davidson, Inquiries into Truth and Interpretation 79, 79 (1984) (hereinafter “Davidson, Inquiries”) (“an expression that would be used if one of its tokens appeared in a normal context is mentioned if one of its tokens appears in quotation marks (or some similar contrivance for quotation)”).
The phenomenal question concerns how people experience the rule of law. The semantic one is: what do we mean by the rule of law? The two questions are not the same, and may lead in slightly different directions. If we take a realist stance toward the rule of law, then we accept that it is endowed with functional properties that we can know and make true or false statements about.
Such properties would be epistemologically objective, even as they are phenomena constructed in the larger community’s collective understanding, hence ontologically subjective. See Mirjan Damaška, Truth in Adjudication, 49 Hastings L. J. 289, 292 (1998).
Because we conclude in both ordinary and theoretical discourse that there is a phenomenon, constructed in our collective consciousness, that we rightly view as constituting the rule of law, we should not be bothered, at least for purposes of this paper, by any divergence between that phenomenon's characteristics and what we mean when we use the rule of law in our discourse. Rather, if we begin with the charitable idea that most beliefs are indeed correct, and that, “if we want to understand others, we must count them right in most matters,”
Donald Davidson, On the Very Idea of a Conceptual Scheme, 47 Proceedings and Addresses of the Am. Phil. Assoc. 5 (1974), reprinted in Davidson, Inquiries, supra note 27, at 197.
then it should make sense methodologically to rely on uses of the rule of law in working out a concept of the phenomenon.
What, then, might explain the “rampant uncertainty” about what the concept of the rule of law amounts to?
There is little controversy about whether we, at least here in the United States, but also in the overwhelming majority of the world's countries, have law and a legal system. Yet the status of the rule of law, and the extent to which it is in effect or broken, is questioned daily.
E.g., Tanzanian President Backs Official Who Beat Students With a Stick, N.Y. Times, Oct. 4, 2019 (Reuters, Elias Biryabarema & David Gregorio eds.) (reporting that “[s]ome western diplomats have complained that Tanzania is giving short shrift to due process, human rights and rule of law. The government rejects the criticism”); William Goldman, Letter to Editor, N.Y. Times, Oct. 3, 2019) (opining that “[t]he rule of law has been usurped by the Trump administration”); Dan Bilefsky, E.U. Chides Poland for Failing to Uphold Rule of Law, N.Y. Times, June 1, 2016; Henry J. Hyde: The President’s Trial; Linking the People’s Trust in the President to the World’s Trust in America, reprinted in N.Y. Times, Jan. 17, 1999 (asserting that “[t]he issue here is whether the President has violated the rule of law and thereby broken the covenant of trust with the American people”); Mo Zhang, The Socialist Legal System With Chinese Characteristics: China’s Discourse for the Rule of Law and a Bitter Experience, 24 Temp. Int’l & Comp. L.J. 1 35 (“It may be inferred from Chinese legal history that while the country had a legal system in place for thousands of years, the rule of law, as both a legal concept and an actual practice, was alien to it”); see also Stephen Williams, The More Law, the Less Rule of Law, 2 Greenbag 403, 405–06 (1999) (discussing ways in which, by Judge Williams’ lights, “the growth of law may impair the rule of law”).
Of course, in some circumstances, the partial breakdown of the legal system itself engenders outcries that “[t]here's no rule of law anymore.”
Teenager Shot as Violence Flares Hours After Hong Kong Imposes Emergency Powers, N.Y. Times, Oct. 4, 2019 (Reuters).
But it seems fair to say that, at a more general level, complaints about the degradation of the rule of law mostly home in on the legal system's mistreatment of litigants, tyrants’ extra-legal mistreatment of those engaging in activities citizens believe should be legally protected, and on official nonfeasance, ineptitude, or aggravation of perceived societal ills that hamper fair access to legal remedies. These ills can include the sorts of political and even economic inequities that citizens come to believe themselves justified in expecting law to ameliorate.
See, e.g., Garrett Epps, What to Do If Congress Can’t Get More Information, The Atlantic, Oct. 3, 2019 (opining that “[t]he rule of law is being shattered, but Congress does have what it needs”); see generally Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 107 (2001) (reporting that the circuit court’s strict scrutiny analysis had relied on “regulations designed to channel benefits . . . to firms owned by individuals who hold themselves out to be socially and economically disadvantaged”); Agostini v. Felton, 521 U.S. 203, 213 (1997) (noting estimates given about 1985 that “some 20,000 children in the city of New York . . . and some 183,000 children nationwide . . . would experience a decline in Title I services”); Procedural Environmental Rights: Principle X in Theory and Practice xvii (Jerzy Jendrośka & Magdelena Bar eds., 2017) (addressing issues of “access to information, public participation in decision making and access to justice in environmental matters”).
For Joseph Raz, because the law brings with it a substantial risk of the arbitrary exercise of power, “the rule of law is designed to minimize the danger created by the law itself.”
Jeremy Waldron disagrees, viewing the rule of law “as an ideal designed to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular.”
In contrast to Raz, Waldron sees the goal of the rule of law ideal as aimed at making government's political and administrative workings “more law-like.”
Jeremy Waldron, Hart and Principles of Legality, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy 67, 79 (Matthew H. Kramer, et al., eds. 2008) (saying that “[t]he aim of the Rule of Law in general is not to make laws and legal institutions more law-like; it is to make government and government institutions more law-like”).
Waldron's view rests on his commitment to “a richer and more discriminating notion of law,”
rendering it vigorously “a distinctive mode of governance that is worth having and worth distinguishing from other modes of governance.”
Id. at 36.
Alternatively, however, law should be described phenomenologically. For it is also worth having a concept of law that coincides, to some large extent, with the people's felt experience of what they take to be their society's legal system. Rule-by-law and the-rule-of-law experiences are likely to diverge in varying degrees, dependent on such factors as the nature of the legal system actually in progress, the witness's relationship to that system,
Cf. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320 (1989) (observing that “[t]he emerging jurisprudence of outsiders uses the experience of subordination to offer a phenomenology of race and law”).
and the range of principles the subject associates with the rule of law as opposed to other virtues she expects the law to possess.
On the other hand, a thin understanding of law may tend to suggest a thin and fairly formal notion of the rule of law. This would be so if we tie the notion of the rule of law to our view about law. The concept of the rule of law will then likely tend toward the criteria famously articulated by Lon Fuller that any legal system must aspire towards. By these criteria, the legal system adopts general rules that help officials avoid merely ad hoc decision-making, publishes those rules so that participants will be capable of knowing what is expected of them, generally prohibits abusive retroactive legislation, articulates rules in a way that renders them understandable, maintains a fairly stable set of rules so as to avoid frequent and disorienting changes, sustains a practice of official conduct congruent with the rules as announced, and so forth.
Lon L. Fuller, The Morality of Law 39, 81 (1964); see Tamanaha, supra note 2, at 94.
It is not difficult to see why this fairly thin rule-of-law schema may constitute a rule-by-law paradigm.
Fuller is careful to guard against too thin of an understanding of law and the rule of law, distinguishing these from a social ordering that constitutes merely “managerial direction.” Fuller, supra note 41, at 207–10. The latter sort of system would likely do without the principles of “generality” and of “congruence between official action and declared rule.” Id. at 208–09. I thank Martin Krygier for pointing me toward these passages.
Fuller believed that “[a] total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract.”
He thereby expressed an existential view of law's minimal institutional constraints. Notice, however, Fuller's use of the adjectival total.
Id.
On this articulation of law's “internal morality,”
Id. at 132.
law is capable of remaining afloat on quite a thin reed indeed.
And, indeed, ad hoc decision-making is disfavored yet occurs widely in the legal system.
See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990) (self-critically acknowledging “a continuing effort on our part to decide each case on an ad hoc basis, as we appear to have done in the past”); Gaffey v. Babb, 624 P.2d 616, 621 (Or. Ct. App. 1981) (noting that the “general rule that a declaratory judgment action is not available to interpret or challenge a criminal enactment . . . has been continually eroded by ad hoc exceptions”); see generally Kenneth Culp Davis, Administrative Law Surprises in the Ruiz Case, 75 Colum. L. Rev. 823, 833 (1975) (reporting that “[a]ll agencies make ad hoc decisions”).
Large and complex regulatory apparatuses are a part of most modern legal systems, characterized by the delegation of legislative authority to administrative agencies, the legal regulations of which “rarely can be considered classically general.”
William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law 75 (1994); see also Edward L. Rubin, Law and Legislation in the Administrative State, 89 Colum. L. Rev. 369, 372 (1989) (saying that, “[i]n a modern administrative state, legislation consists of . . . the mobilization of governmental power to achieve particular results”).
Judicial decisions articulating common law rules and principles are often left “unpublished.”
See Cox v. LNU, 924 F. Supp.2d 1269, 1275 (D. Kan. 2013) (noting a federal district court rule that “requires parties to attach cited unpublished decisions to their briefs or memoranda, if the decisions are unavailable electronically”).
Much legislation is applied retroactively, in a variety of situations.
E.g., Scharfschwerdt v. Kanarek, 553 So.2d 218, 220 (Fla. Ct. App. 1989) (noting circumstances in which “[t]he legislature can amend statutes of limitations to apply retroactively without running afoul of the constitutional ex post facto prohibition”).
Contextual settings may, on occasion, excuse even legal rules that are far from readily understandable.
See Barron v. Marusak, 359 S.W.2d 77, 84 (Tex. Ct. App. 1962) (acknowledging that “a statute may be too unreasonable, uncertain and vague to be a valid criminal statute yet valid as prescribing a rule of civil conduct”).
Frequent changes in the rules seem to afflict our highly politicized regulatory system, and have traditionally characterized certain areas of the law.
See Flora v. United States, 362 U.S. 145, 197 (1960) (discussing “legislation in an area such as internal revenue, where countless rules and exceptions are the subjects of frequent revisions and precise refinements”) (Whittaker, J., dissenting on other grounds); Meredith v. Atlanta Intermodal Rail Servs., 561 S.E.2d 67, 70 (Ga. 2002) (noting that “the General Assembly has failed to overturn either the court decisions or agency rules despite frequent amendments to the [Workers’ Compensation] statute”).
Jeremy Waldron handily acknowledges that governing systems that are clearly legal systems will exhibit “occasional lapses” such as those just mentioned.
He denies, however, that these have much purchase on the relationship between the concept of law and that of the rule of law. Rather, the lapses may be seen either as rendering the system of governance a more marginal example of a legal system, or as calling for a more rigorous application of the rule of law ideal.
Id. at 46–47.
Notwithstanding its elegant symmetry, this perspective begs the question concerning the potentially significant divide that will appear to exist between the concept of law and that of the rule of law.
Indeed, uncertainty about the concept of the rule of law may well flow from the sometimes grating tension between law and the rule of law that Jeremy Waldron cannot condone. The fairly commonplace characteristics noted above that tend to fall short of the Fuller criteria will engender perceptions, particularly by those disadvantaged by a ruling or policy, that the rule of law is thereby somewhat degraded, but even that subclass of individuals will overwhelmingly deem the legal norms obligatory, and the legal system to be intact. Acceptance of an enduring rule by law often coexists with skepticism about the integrity of the rule of law under more extreme circumstances, as well.
E.g., Wei Jingsheng, Op-ed: A Return to the Cultural Revolution?, N.Y. Times, Apr. 20, 2011, at https://www.nytimes.com/2011/04/21/opinion (visited Jan. 22, 2020) (critiquing “the evolution of a new brand of repression: the perverted ‘rule by law’ instead of the ‘rule of law’”); Martin Krygier, The Rule of Law: Pasts, Presents, and Two Possible Futures, 12 Annual Rev. Law Soc. Sci. 199, 208 (2016) (discussing sociolegal scholarship showing, “of Myanmar and Sudan, respectively, the deliberate and systematic use of law to serve ends contradictory to those of the rule of law”).
One illustrative case of the divergence between law and the rule of law arises when courts are called upon to interpret statutes safeguarding the community from official corruption. Anti-corruption statutes both aim at protecting the democratic process and impinge on the freedom of the political maneuvering, presumably on behalf of constituents, of democratically elected officials or those who might seek to influence them.
E.g., 18 U.S.C. § 201 (titled “Bribery of public officials and witnesses”).
Waldron nicely says that “[i]t is part of our idea of law that, even if it does not regulate everything, it must be effective in governing many—if not most—of the more important interactions and conflicts in a given society.”
Regulating and restraining official use of authority, law remains law regardless of the way it tilts in its construction of anti-corruption measures. Yet some interests will inevitably deem the resolution of a dispute arising under the statute to be morally objectionable in relation to law's procedural integrity, and thereby to impinge on the rule of law.
Consider, for example, the well-known case of McDonnell v. United States.
136 S. Ct. 2355 (2016).
The United States indicted Robert McDonnell and his wife on bribery charges stemming from their acceptance, when McDonnell was Governor of Virginia, of loans and gifts from the chief executive officer of a company that sought the Governor's help in getting Virginia's public universities to research its product.
Id. at 2361.
The controversy turned on whether McDonnell had traded an “official act” for favors received.
18 U.S.C. § 201(a) (3) (defining “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit”).
The Supreme Court held that the statute would be unconstitutionally overbroad were acts such as setting up a meeting, calling another public official, or hosting an event to qualify as official acts.
136 S. Ct. at 2368.
Rather, only “a formal exercise of governmental power” would violate the statute.
Id. at 2369.
No one would have reasonably deemed the status of the legal system as a system of law, even in some manifest degree, to hinge upon whether the McDonnell Court favored the government's versus the defendant's interpretation of the bribery statute. Yet, as one commentator on the McDonnell opinion put it, “Democracy and the rule of law are threatened by public corruption, but they are threatened every bit as much by those who would erect a wall between people and their representatives.”
C. Borden Gray, Why the Robert McDonnell case is a threat to the Constitution, Washington Post, Sept. 3, 2015, at www.washingtonpost.com.
The rule of law is here positioned as a moral filter by which to evaluate the legal system's handling of the democratic relationship between elected officials and their constituents. Because “moral disagreements are endemic and intractable,”
Ian P. Farrell, Book Review: Legality. By Scott Shapiro, 90 Tex. L. Rev. 187, 217 (2011); see Michael P. Zuckert, Hobbes, Locke, and the Problem of the Rule of Law, in 36 Nomos: The Rule of Law 63, 65 (1994) (saying that partisans on both sides of legal theoretical “wars” are no less confident “that the rule of law is on their side and their side alone than warriors in hotter wars have claimed God as theirs and theirs alone”).
it makes sense that people will clash sharply over the implications of a legal ruling for an informal moral operator such as the rule of law.
Seen as an informal “moral operator,” the expression’s grammatical form is such that the rule of law connotes an argument implicitly attached to the normative operator ought, such that relevant existing conditions and normative possibilities give a moral reason (an “ought”) for the legal system to behave in a certain manner that comports with the speaker’s interpretation of the rule-of-law ideal. See generally Laura Kallmeyer & Rainer Osswald, Combining Predicate-Argument Structure and Operator Projection: Cause Structure in Role and Reference Grammar, Proceedings of the 13th Int’l Workshop on Tree Adjoining Grammars and Related Formalisms 61, 61 (2017); Brian Sheppard & Fiery Cushman, Evaluating Norms: An Empirical Analysis of the Relationship Between Norm-Content, Operator, and Charitable Behavior, 63 Vanderbilt L. Rev. 55, 59 (2010) (noting that the 1908 Canons of Ethics “largely utilized aspirational norm operators and moral standard norm-content . . . such as ‘should’ or ‘ought’”) (omitting citations). In this paper I will also assume, without arguing, the normativity of evaluative statements. See, e.g., Richard M. Hare, The Language of Morals 152–53 (1952) (arguing that, although “[i]n general, ‘ought’ behaves more like ‘right’ than it does like ‘good’ . . ., there are sufficient similarities between the words ‘good’, ‘right’, and ‘ought’ for us to classify them all as value words”). For a very good recent discussion on this issue, see Christine Tappolet, The Normativity of Evaluative Concepts, in 2 Mind, Values, and Metaphysics. Philosophical Essays in Honor of Kevin Mulligan 39, 52–53 (Anne Reboul ed., 2014) (concluding that the “great many equivalences [that] allow us to build bridges between the evaluative and deontic domains . . . suggest[] that evaluative concepts and deontic concepts are two kinds of concepts that belong to the same conceptual level”).
There are other examples of legal decision-making that similarly suggest that law and the rule of law run on separate tracks. Consider the toxic tort setting in which rules settled in typical tort context safeguard the interests of one class of litigants while thereby depriving another class of its ability to obtain redress. Product manufacturers, for instance, whose toxic components caused individuals’ latent harms not manifesting until after the standing statute of limitations has run, emerge free and clear of accountability. Legislation retroactively reviving those individuals’ claims, at least for limited periods of time, gives voice to their grievances against those powerful interests, in this way promoting the rule of law.
See Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1079–80 (N.Y. 1989) (upholding the legality of the statutory revival of previously time-barred claims to cure injustice that “calls for a remedy”).
As Waldron says, “[t]he procedural side of the Rule of Law presents a mode of governance that allows people a voice, a way of intervening on their own behalf in confrontations with power.”
Yet, by virtue of the same official action, industry entities and corporate officials are deprived of the benefit of a set legal rule offering them respite from the need to defend “stale” claims,
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008).
in this way impairing the rule of law from another point of view.
We don’t use the appellation law “casually” simply by finding no meaningful impact on the system's status as a legal system regardless of the direction taken, either judicially or by legislation, in resolving various controversies.
But groups holding conflicting interests or convictions within society are justified in discerning an impact on the rule of law, depending on the legislative or judicial outcome. The point is that the quite elegant symmetry Waldron posits —departure from the rule of law ideal as the mirror image of deterioration of the legal system
Id. at 46–47.
—doesn’t hold.
Waldron is right in acknowledging that law may well not actually promote the public good, but is likely not exactly right in asserting that, nevertheless, “nothing is law unless it purports to promote the public good . . . .”
Id. at 32 (emphasis in original).
For law often abstains from the moral or economic project of ascertaining whether outcomes will affirmatively promote the public good, and rests on taking action that is not contrary to the public good.
E.g., City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 377 (1991) (acknowledging that “[f]ew governmental actions are immune from the charge that they are ‘not in the public interest’, and emphasizing that “it is not universally considered contrary to the public good if the net economic loss to the losers exceeds the net economic gain to the winners”); Mulder v. McDonald, 805 F.3d 1342, 1348 (Fed. Cir. 2015) (reiterating that “‘Congress has explicitly concluded that if taxpayers are financing a veteran’s incarceration, it is contrary to the public good to also pay him full VA disability benefits’”) (quoting Wanless v. Shinseki, 23 Vet. App. 143, 148 (2009), aff’d, 618 F.3d 1333 (Fed. Cir. 2010)).
At times, legal decisions even acknowledge, without great qualms, privileging private over public interests.
City of Columbia, 499 U.S. at 377 (revisiting a marketing scheme deemed legal valid although it “put the ‘private’ interest of the State’s raisin growers above the ‘public’ interest of the State’s consumers”) (discussing Parker v. Brown, 317 U.S. 341 (1943)).
Even as the idea of an orientation to the public good highlights a similarity between law and the rule of law, it disjoins the two concepts. The rule of law would not be what it is unless it is evaluated as both purporting to promote the public good and actually doing so. Law, however, does not inexorably promote the public good, but also, as just seen, does not even necessarily purport to do so, pace Waldron. But even if law does generally purport to advance the public good, this is not its uniquely defining feature; the legal system would plainly not be alone in making this institutional claim. Although the outlaw gang cannot legitimately claim to be out for any interests but its own, legitimate institutions broadly purport, with varying degrees of justification, to promote the good of the larger society.
See, e.g., Chris Kocher, Apple Helps GE “Bring Good Things to Life,” Industry Week (Oct. 19, 2017).
So law's claim to promote the public good does not necessarily align it with the rule of law, but rather with ordinary institutional reality. That law does not necessarily actually promote the public good, however, and that it sometimes may not even claim to do so, cleaves it from the rule of law. The rule of law claims to, and by its nature does, promote the public good. The concept of the rule of law would otherwise be meaningless.
Like the rule of law, democracy is a political ideal that, when realized in practice, by its nature delivers a social good. At least we are usually justified in taking this as a given.
But see Jason Brennan, Against Democracy 3 (2016) (arguing that “[w]e should hope for even less participation, not more. Ideally, politics would occupy only a small portion of the average person’s attention”).
Waldron wants to go a step further, and analogize the way we use law to the way we use the term democracy.
Uncontroversially remarking that democracy and the rule of law fall within “a cluster of ideals constitutive of modern political morality,”
Id. at 3.
he then extends the analogy to law itself. He most pointedly says that, as the very concept of democracy connotes “free and fair elections,” so the absence of “hearings and impartial proceedings” would disqualify a societal arrangement from being deemed a legal system.
Id. at 22.
This analogy is problematic. Elections are free and fair, hence democratic, when neither the legislative organism nor the ruling power has the ability to predetermine the outcome.
See generally Jeffrey G. Hamilton, Deeper into the Political Thicket: Racial and Political Gerrymandering and the Supreme Court, 43 Emory L. J. 1519, 1561 (1994).
The outcome is determined based on the voters’ first order actions, either by way of counting their direct votes and applying them to the total, or via another sort of pre-defined and transparent electoral method.
See generally Jeffrey C. O’Neill, Everything That Can Be Counted Does Not Necessarily Count: The Right to Vote and the Choice of a Voting System, 2006 Mich. St. L. Rev. 327, 333 (2006) (surveying various types of voting systems); Mathematics and Democracy: Recent Advances in Voting Systems and Collective Choice (Bruno Simeone & Freidrich Pukelsheim eds., 2006).
In legal proceedings, by contrast, officials engage in interpretive and higher order supervisory oversight, typically evaluating the validity of the inferences advanced by the litigants, and the integrity of the evidentiary mechanisms at play. Also, as Joseph Raz explains, “the fact that what is law is a matter of interpretation shows – according to some – that, since any object of interpretation allows for multiple interpretations, the law is subjective . . . .”
Joseph Raz, Between Authority and Interpretation 225 (2009); see also Thomas Morawetz, Law as Experience: The Internal Aspect of Law, 52 SMU L. Rev. 27, 49 (1999) (opining that, “[i]nsofar as insiders participate in controversies and use notions such as fairness, justice, correctness, and rights, they fail to recognize that all such arguments are systematically devalued by bias and partisanship, by commitments and dispositions hidden from disputants themselves”).
And legal realists press the view that judges decide based on “how the facts of the cases strike them,” as conditioned by psychological and sociological factors rather than strictly legal rules and principles.
Brian Leiter, Legal Realism, in A Companion to Philosophy of Lawand Legal Theory 261, 261 (Dennis Patterson ed., 1996).
At the least, the notion of the impartiality of law's adjudicative mechanisms can become ambiguous, depending somewhat on whether the focus is on the particular litigants or, more generally, open-mindedness regarding policy or legal issues. In the latter case, the commitment to impartiality is, inevitably, in some tension with the deference afforded to prior judicial positions, precedents, and legislative histories.
See Republican Party of Minnesota v. White, 536 U.S. 765, 775–79 (2002).
Apart from these sorts of considerations, Part II below will flesh out why, for other far more troubling reasons, law is not necessarily impartial in its relation to the average citizens. If it is a critical aspirational ideal that, in legal proceedings, both sides be treated respectfully and given an equal opportunity to confront power,
then inequalities within the broader society will manifest as inequalities within the legal system. If segments of society are saddled with unequal capabilities to function and to take advantage of legal and other institutional structures, then this will necessarily impair law's ability to deliver on the aspiration that it provide a mode of governing that shows “equal concern for the fate of every person over whom it claims dominion.”
Ronald Dworkin, Justice for Hedgehogs 2 (2011).
In any event, analogizing law and democracy appears to be a further instance of begging the question in favor of law. As suggested,
But it remains to be shown that law, like the rule of law, carries an equivalent stature. I believe that the better analogy for law would be to government. Government is a far more expansive term that allows for its many variants.
As with law, an arrangement requires certain features to qualify as government. Scholars in that area would identify the exercise of certain functions, the provision of certain services, and a capability to stand for the whole in diplomatic encounters with outside entities. However, even as most people would agree that it is better to have a government than not, it is fairly debated whether its “administration of populations” delivers a net public good in particular circumstances.
Andrea Mennicken & Peter Miller, Michel Foucault and the Administering of Lives, in The Oxford Handbook of Sociology, Social Theory, and Organization Studies 11, 15 (Paul Adler et al., eds., 2014); see Baron De Montesquie, The Spirit of the Laws 19 (Thomas Nugent trans., 1949) (1748) (describing monarchical, despotic, and republican forms of government).
That debate doesn’t impinge, however, on the presupposition that the system qualifies as a government. Moreover, in contrast to the democratic ideal, “on the plane of governmentality, populations do not carry the ethical significance of citizenship.”
Partha Chatterjee, Lineages of Political Society: Studies in Postcolonial Democracy 14 (2011).
Finally, we have noted the disagreement between Raz and Waldron concerning the function of the rule of law.
Neither view, however, would remotely begin to describe law's function. Law's distinctive processes, such as its hearings and formal proceedings, as elucidated by Jeremy Waldron,
Id. at 22.
mostly aim at goals quite different from constraining official exercises of political power, although this may occur in particular cases. Distinguishing the functions of law and the rule of law both sets the concepts apart and facilitates a moral concept of the rule of law that is compatible with a positivist concept of law itself.
One thinker critically respected by Waldron for his functional view of law was the Bolshevik legal philosopher Evgeny Pashukanis.
Id. at 15.
As Waldron puts it, Pashukanis “believed that law was a particular and distinctive form of social ordering, organized around the coordination and empowerment of private, independent agents.”
Id. at 16 (citing Evgeny B. Pashukanis, Lawand Marxism: A General Theory 100-01 (Chris Arthur ed., Barbara Einhorn trans., 1978) (1929)).
Consistently, Pashukanis asserted that “[a] basic prerequisite for legal regulation is therefore the conflict of private interests.”
Regardless of how far one agrees with the overall theory, the view does seem to capture the conceptual nature of the emergence of a legal system.
As the pre-legal social group engages in private transactions, broadly defined to include accidental occurrences—promising, injuring, commanding, planning and so forth—these give rise to entitlements, commitments, obligations and other deontic facts, including deontic emotions such as blame and resentment.
John R. Searle, Makingthe Social World: The Structure of Human Civilization 147–48 (2010); see also Carla Bagnoli, Introduction to Morality and the Emotions 1, 26 (Carla Bagnoli ed., 2011).
Questions inevitably arise about how to organize, coordinate and prioritize those obligations, resentments, powers, and practiced means to intended ends. Particular groups, based on some circumstance such as brute physical might, talent, risk-taking, or perhaps merely luck, or some combination of those, will be more powerful than others and form dominant cliques or even classes.
See, e.g., Hendrik Hartog, Coverture and Dignity: A Comment, 41 Law & Soc. Inquiry 833, 837 (2016) (discussing the “prelegal and primordial fact of male sexual violence and power”);
A legal system emerges, via collectively recognized regulative and constitutive rules, and local and regional institutions aimed at balancing competing interests and settling disputes peacefully. The system engenders strata of legal and governmental officials, empowers individuals in the community and affords them guidance and constraints in the conduct of their transactions, but also ensures and reifies the privileges and exploitative capabilities of the dominant group.
See Jean-Jacques Rousseau, Émile, in 4 Oeuvres complètes 524 (Bernard Gagnebin & Marcel Raymond eds., 1969) (1762), quoted in Holmes, supra note 3, at 47 (stating that “[t]he universal spirit of the Laws of all countries is always to favor the strong against the weak, and the one who has against the one who has nothing”); see also T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1084 (1991) (explaining that “[d]ominant groups generally do not consider themselves to be oppressive, particularly in a society in which tolerance for diversity is valued, and they can provide descriptions of themselves and the disadvantaged that explain inequality as either justified or natural”).
The next section argues that the rule of law concomitantly forms in the community's collective consciousness as an informal moral operator aimed at tempering the legal system's functioning in relation to the larger society's conditions and normative possibilities.
The Rule of Law as a Moral Operator
Commitment to the rule-of-law project supports an endorsement of rule by law,
See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 536 (1983).
which might also be framed as the rule of laws. At the same time, however, believing in the project's merit, and engaging in its practice of morally evaluating legal systems, do not require endorsing the rule of a surfeit of laws.
See Jerome Hall, Plato’s Legal Philosophy, 31 Indiana L. J. 171, 181–82 (1956) (remarking that, notwithstanding Plato’s statement in Laws that properly educated citizens will be able to determine their own standards of behavior in certain areas, there was “no incompatibility between rigorous adherence to the rule of laws and rigorous restriction of the scope of law”).
Proliferation of laws can ironically be in some tension with rule-of-law constraints on the coercive state power that backs those laws. These are considerations that historically launched the rule-of-law project.
Let's begin with Plato, not to privilege the Western canon but to trace the concept's lineage in modern popular discourse as well as theoretical writing. Plato did not expressly refer to “the rule of law,” and he counted adherence to law as the “second-best method” of organizing a government.
Plato, Statesman 297d-e, 300b-c, in Plato: Complete Works 294, 342, 344 (John M. Cooper ed., 1997).
With idealized expertise, the king would be able to rule without law, as each situation demanded. If so, law's stable or fixed nature would render it something akin to “some self-willed and ignorant person, who allows no one to do anything contrary to what he orders, nor to ask any questions about it . . . .”
Plato, Statesman 294c, in id. at 338.
Waldron has taken this language to mean that, for Plato, one would use legal rules “only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of expertise in political life.”
Jeremy Waldron, The Rule of Law, in Stanford Encyclopedia of Philosophy (2016), available at http://plato.stanford.edu/archives/fall2016/entries/rule-of-law/.
Plato's theological cosmology envisioned an era, the Age of Cronos, in which the universe rotated in an opposite direction, such that divine spirits governed all living things, and human beings experienced no private conflict.
Plato, Statesman 269c-272b, in Plato, supra note 101, at 310–14.
Responding to the paradox that one cannot search either for what one knows—because this is already known—or for what one does not know—because one would not know what to search for—Socrates says in Plato's Meno that the soul is immortal, has been born often and has seen everything before, and is left with the task of “recollect[ing] the things it knew before, both about virtue and other things.”
Plato, Meno 80d-81d, in id. at 870, 880.
Statesman is not as unforgiving about law as Professor Waldron's parenthetical might suggest. The work's lead pedagogic character, the Stranger or Visitor, asks why it is “ever necessary to make laws, given that law is not something completely correct.”
Plato, Statesman 294d, in id. at 338.
So, after all, in this world, in the Age of Zeus, laws are necessary and corrective, even if not “completely” correct. Importantly, in the Republic, Plato explains that the painter is none the worse if, having painted a portrait of the finest human being, “he could not prove that such a man could come into being.”
Plato, Republic 472d, in id. at 971, 1099.
Neither the philosopher king nor the best possible constitution may ever be realized in practice.
Plato, Republic 473c-e, in id. at 1100.
And, indeed, Plato's longest work was Laws, consisting of twelve books revolving around the idea that the lawgiver organizes “the entire life of the state.”
Plato, Laws 632c, in id. at 1326.
Although many of Plato's ideas would, of course, be anathema to a modern rule-of-law devotee, he did, in this late work, conceive of the formulation of a legal code comprised of “all these regulations [that] may be welded into a rational whole, demonstrably inspired by considerations of justice and self-restraint, not of wealth and ambition.”
Plato, Laws 632c-d, in id. at 1326–27.
This language wouldn’t be substantially out of line if used to express a modern view of the rule of law.
Plato even articulated a basic norm instructing his view of governance, namely, that the rulers ought to “preserve” the city and make it “better than it was so far as they can . . .”
Plato, Statesman 293d-e, 297b, in id. at 337, 341.
Although Plato's rarified view of the expertise required to govern tilted his ranked preferences in order from monarchy, to a more diffuse aristocracy or oligarchy, to his disfavored democracy,
Plato, Statesman 291c to 292b, 303a-b, in id. at 335, 348; Plato, Republic 544c, in id. at 1156.
he viewed law's function as supporting this superimposed directive. His very articulation in Statesman of an overriding norm sets a context for evaluating the legal system, for discretely examining the system's normativity apart from assaying the system's discrete norms.
See Mitchell N. Berman, Of Law and Other Artificial Normative Systems, in Dimensions of Normativity: New Essays on Metaethics and Jurisprudence 137, 142 (David Plunkett et al., eds., 2019).
Modern theorists need not be distracted by Plato's period recommendations to appreciate his evaluative project. Morality is a subspace within the broader normative expanse, and Plato introduced not solely the idea of “good written rules, which we call laws,”
Plato, Statesman 302e, in Plato, supra note 101, at 347.
but of the existence of a moral standard for evaluating the larger legal system. He even articulated an orderly decision process, compatible with modern notions of the rule of law, for developing the laws, namely, “on the basis of much experiment, with some advisors or other having given advice on each subject in an attractive way, and having persuaded the majority to pass them.”
Plato, Statesman 300b, in id. at 344.
I next defend the position that, following Plato, the concept of the rule of law has tended to function as a moral operator for evaluating the legal system in progress, at the particular historical moment, and in the context of the conditions of the larger society. As a moral operator, the rule of law is fated to generate robust disagreement.
See generally Jeremy Waldron, Moral Truth and Judicial Review, 43 Am. J. Juris. 75, 78 (1998) (noting that “the persistence of widespread moral disagreement about rights informs many people’s rejection of moral realism as a metaethical position”).
Issues will include which attributes of the legal system in progress are beneficial or detrimental to sustaining governance's moral well-being, and whether the manner in which legal institutional actions are taken at the particular historic moment diminish or bolster the rule of law. The underlying question is whether law's way of proceeding—from the point of view of procedures followed and access for all those affected—weakens or improves the moral situation.
Understandably, however, theorists have sought to more concretely define attributes critical to the rule of law. They have not conceptualized the rule of law in structuralist terms, being the structural role the idea of the rule of law plays in a society's discourse, as an informal moral operator. Reifying the attributes, many academics have converged around the Fuller criteria,
or similar desiderata, rigidly assigning such qualities such as generality, publicity, clarity, prospectivity, and stability as the sine qua non for determining whether a legal system realizes the rule of law ideal.
See Mark Tushnet, The Possibility of Illiberal Constitutionalism?, 69 Fla. L. Rev. 1367, 1370 (2017); Jeremy Waldron, Preface, 11 Hague J. on the Rule of Law 251, 251 (2019) (remarking that legal philosophers writing on the rule of law “compete with one another to come up with more and more carefully formulated lists . . ., tak[ing] for granted that the rule of law requires some such list”). It is conceivable that, at some historical moments, unyielding adherence to a traditional rule-of-law attribute might approach a reductio ad absurdum of the rule-of-law aspiration. Cf. Herbert L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 619–20 (1958) (advocating that officials practice “candour” in acknowledging the retrospectivity of a criminal sanction imposed, “as the lesser of two evils,” on an individual whose pro-Nazi misconduct was technically “legal” when performed); Ernest Weinrib, The Intelligibility of the Rule of Law, in The Rule of Law: Ideal or Ideology 59, 59 (Allan Hutchinson & Patrick Monahan eds. 1987) (questioning whether, “[i]f law inescapably implies the rule of some men over others, can a notion of the Rule of Law with its implicit contrast to the rule of men be in any sense intelligible or coherent?”).
By the moral operational view, however, although these criteria certainly provide markers for a contemporary rule-of-law evaluation, neither they nor any other reified attributes in themselves fixedly constitute the rule of law.
Aristotle linked the evaluation of legal systems to that of their host governments, a defective government engendering bad or unjust laws.
Aristotle, Politics 1282b1-12, in 2 The Complete Works of Aristotle 1986, 2035 (Jonathan Barnes ed., rev. Oxford trans., 1984) (hereinafter “Complete Works”).
To ensure good legal decision-making, the norms governing legal practices would have to respond to governmental structures. Because, for instance, magistrates in the Lacedaemonian system were selected “from the whole people,” including from those who, “being badly off, are open to bribes,” their discretion ought to be held in check such that they decide not “merely on their own judgement, but according to written rules and to the laws.”
Aristotle, Politics 1270b7-31, in id. at 2016.
The deontic operator ought indicates a moral constraint on the magistrates’ exercise of discretion,
See Pablo E. Navarro & Jorge L. Rodríguez, Deontic Logic and Legal Systems xx, 85 (2014).
and Aristotle's prescription thereby provides a moral ground for a rule-of-law evaluation of Spartan magisterial practice.
There are, of course, several “flavors” of the normative word ought, not solely the moral, including the prudential (“John ought to take his vitamins”), teleological (“to hang the picture, you ought to use a thicker nail”); and the generally evaluative (“Sally ought to have a relaxing vacation”). See Matthew Chrisman, The Meaningof ‘Ought’: Beyond Descriptivism and Expressivism in Metaethics 71 (2016); see also John Broome, Rationality Through Reasoning 4, 9 (2013) (noting that “‘[o]ught’ is not particularly a moral word It is a general normative word,” but is also often used non-normatively). Although some expressions of the rule of law construct may express merely prudential or other nonmoral aspirations, I believe that it overwhelming serves a stronger, morality-based evaluative function.
For Aristotle, law was general, systematic, legislated and typically written. He acknowledged the thinking “by some” that a sovereign's arbitrary rule, characterizing absolute monarchy, was “quite contrary to nature.”
Aristotle, Politics 1287a10-11, in Complete Works, supra note 119, at 2042.
And he took note of the view that the rule of law, here meaning rule by law, “is preferable to that of any individual.”
Aristotle, Politics 1287a19-20, in id. at 2042.
Aristotle explained, however, that in the broader functioning of the legal system, individuals would have to decide issues arising in specific cases, which involved “matters of detail” that “cannot be included in legislation.”
Aristotle, Politics 1287b21, in id. at 2043.
This was acceptable, and could even improve the moral situation over that attained by rote adherence to written laws, precisely because the law would train officials “for this express purpose.”
Aristotle, Politics 1287a25-26, in id. at 2042.
For controversies left undecided by general legislation, individuals are appointed to determine those matters “to the best of their judgment,” ideally mimicking “God and Reason alone,” so as to avoid as much as possible emotional bias in the form of desire, “spite and partiality.”
Aristotle, Politics 1287a27-37, in id. at 2042–43.
Aristotle thereby set up parameters for morally evaluating the legal system's functioning. In this exercise, citizens would evaluate whether officials were judging “truly” by applying reason, as they ought, rather than spite and partiality.
Aristotle, Politics 1287a36 to 1287b2, in id. at 2043. Compare the thoughts of Artistotle’s contemporary, the fourth century B.C. Chinese philosopher Zhuang Zhou, in Zhuangzi: The Essential Writings (Brook Ziporyn trans., 2009), at 51 (expressing Lao Dan’s view that, “[w]hen a clear-sighted sovereign rules, [t]here is something unnameable about him that allows all creatures to delight in themselves,” & 109–10 (speaking of community and government, stating that, “the Great Man joins and brings all things together to make the unbiased,” and that “[a]ll things have their differing guidelines, but the Course is not partial to any of them. Thus, it has no name”).
And he continues, in the following passage, to set down a decision procedure and decision-making attitude, markers by which to morally appraise the practice:
Hence it is evident that in seeking for justice men seek for the mean, for the law is the mean. Again, customary laws have more weight, and relate to more important matters, than written laws, and a man may be a safer ruler than the written law, but not safer than the customary law.
Aristotle, Politics 1287b2-7, in Complete Works, supra note 119, at 2043.
In a right-functioning legal system, those well trained in the law have been “stimulate[d] to excellence” and should, by advancing good laws that take good public care, urge the populace on toward a similar noble character.
Aristotle, Nicomachean Ethics 1180a6–1180b1, in id. at 1729, 1864–65.
The Aristotelian analogue to the rule of law required that officials be capable of studying customary as well as written laws, and of judging “what is good and bad and what enactments suit what circumstances.”
Aristotle, Nicomachean Ethics 1181b6-10, in id. at 1867.
When needed, although only with great caution, officials should change the law, including by legislating abandonment of customary law that no longer suits present morality and sensibilities.
Aristotle, Politics 1268b26 to 1269a17, in id. at 2013–14.
Although some of the specific attributes Aristotle assigned to law, in his complex and sometimes ambiguous writing on the subject, would not accord with modern notions of the rule of law, and although many would do so, the corpus aristotelicum engendered a moral evaluative operation by which to assess a legal system. While rooted in order and stability, the Aristotelian system was not static but in motion, guided by legislators and officials possessed of agency and a fine-tuned capability, and obligation, to discriminate between the good and the bad in existing and contemplated law.
It may seem that the moral operational concept of the rule of law is an aspect of natural law legal theory, which in its strong sense maintains that there is a necessary connection between morality and the existence and validity of laws, but in its weak form appraises the moral force of laws rather than their very existence or validity.
See Philip Soper, Some Natural Confusions About Natural Law, 90 Mich. L. Rev. 2393, 2395–96 (1992).
Natural law legal thinking, however, leaves the connection between morality and the concept of the rule of law both transparently direct and misleadingly opaque. The former is so, because evaluating the legal system as a whole from the point of view of its being both obligated to improve the moral situation and generative of genuine moral obligation aligns with natural law legal theoretical motivations.
This is not to say, however, that the moral evaluative concept of the rule of law favored in this paper is in itself a natural law legal theory, or that it rests on any particular sort of metaethical theory, whether cognitive or noncognitive, realist or antirealist, objective or subjective.
And the latter is so, because appraising laws from the moral perspective doesn’t pin down one's concept of the rule of law. A law or constitutional interpretation protecting the right to abortion, for instance, might seem to some natural law advocates as invalid or leastwise defective on moral grounds, but so, for other natural law legal thinkers, might a law or interpretation restricting such a right.
See Eric Rakowski, The Sanctity of Human Life, 103 Yale L. J. 2049, 2057 (1994) (reviewing Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993)) (noting, inter alia, “Dworkin’s argument that the Free Exercise Clause gives most American women a right to abortion, because they believe, at least implicitly, that abortion in their circumstances best respects the sanctity of life”). In some jurisdictions, advocates might even feel comfortable raising a natural law argument as part of their courtroom presentation. See Keith S. Kroger, Ireland’s Abortion Information Act of 1995, 29 Vand. J. Transnat’l L. 1117, 1139 n.148 (1996).
To the extent, however, that the right-to-choose/right-to-life debate does not implicate the aims and concerns underlying the rule-of-law ideal—for example, values concerning lawmaking procedures, the formal characteristics of laws, access to the legal system, and so forth—this debate will not have any discernable rule-of-law impacts.
Although Aristotle is routinely cited as advancing a natural law legal theory, some have seen this claim as somewhat arguable.
E.g., W. Von Leyden, Aristotle and the Concept of Law, 42 J. Royal Ins. Phil. 1, 13 (Jan. 1967) (suggesting that there is a sense “in which on Aristotle’s view there is no necessary connection between law and morality [given that] it is possible to make morally iniquitous laws”).
The same cannot so readily be said for Samuel Rutherford, whose use of the term rule of law was likely the first in English, albeit without the definite article, and expressive of a critically important aspect of the concept. In his 1644 treatise Lex, Rex, Rutherford instructed that “conscientia humani generis, the natural conscience of all men, to which the oppressed people may appeal unto when the king exponeth a law unjustly, . . . is the last rule on earth for exponing of laws.”
Samuel Rutherford, Lex, Rex, or The Law of the Prince 137 (1982) (1644) (hereinafter “Lex, Rex”).
The work scathingly, and at great bodily risk, addressed then Archbishop of Canterbury John Maxwell's Sacro-Sancta Regum Majestas, which defended the divine right theory and the royal prerogative of kings.
Rutherford's title, Lex, Rex, places the law before the king, in contravention of Maxwell's royal absolutism and the rex est lex loquens (the king is the law speaking) doctrine. So Britain and Scotland burned and banned the book, and in 1688 charged Rutherford with high treason, although he died before trial.
Thomas Murray, Sketch of the Life of Samuel Rutherford (1827), in id. at xv,xix.
In Lex, Rex, Rutherford responds to forty-four questions, the twenty-sixth being “whether the king be above the law or no.”
Explaining that emperors began as “but princes of the commonwealth,” Rutherford announces the rule of law, not of man ideal, saying that “the prince remaineth, even being a prince, a social creature, a man as well as a king; one who must buy, sell, promise, contract, dispose: therefore, he is not regula regulans [the governing rule], but under rule of law.”
Id. at 129; see also John Locke, Second Treatise of Government § 202, at 103 (C. B. Macpherson ed. 1980) (1690) (opining that “[w]here-ever law ends, tyranny begins, . .. and whosoever in authority exceeds the power given him by the law, . . . ceases in that to be a magistrate”).
Yet this rule of law, not of man precept requires, in the first instance, a moral evaluation of the promulgation and administration of the laws. For, like Nero, the king will “seek[] to make new laws for himself,” in furtherance of machinations “seeking to destroy” structures of governance and the people.
So the laws, their source and content, will have to be scrutinized. That evaluation is necessary to ensure that the law conforms to the “one fundamental rule, salus populi,” such that the laws actually do conform to “the law of nature, and the law of nations,” and not be made “so obscure, as an ordinary wit cannot see their connexion with fundamental truths of policy, and the safety of the people.”
Id. at 137.
Whether or not embedded within natural law legal presuppositions, a distinct moral operation occurs by which the community evaluates its legal system.
We leap a few centuries ahead to the work of Albert Venn Dicey. Joseph Raz has referenced “Dicey's unfortunate doctrine,”
which in 1885 introduced readers to the modern concept of the rule of law, however limited by contemporary lights.
Albert Venn Dicey, Introduction to the Study of the Lawof the Constitution (3d ed., 1889) (1885). Note, however, Professor Waldron’s comment disagreeing that Dicey in 1885 “was the first jurist to use the phrase ‘the Rule of Law,’ . . . except in the most pedantic sense of exact grammatical construction.” Jeremy Waldron, The Rule of Law and the Measure of Property 7 (2012).
Dicey offered three central “though kindred” principles,
which he attributed to the English system: first, that no one should be punished except for a distinct violation as established in the ordinary courts and according to established, ordinary procedures
Id.
; second, that no one is above the law, such that every person, “whatever be his rank or condition,” is subject to the ordinary law as administered in the ordinary courts
Id. at 181.
; and third, that general constitutional principles evolve over time as a result of continual judicial decision-making in individual cases adjudicating private rights.
Id. at 182–83.
Dicey's concept of the rule of law thereby announced a set of standards by which commentators could critically assess the legal system's workings. Not fully recognizing that the normative and moral evaluation of the legal system was itself constitutive of the rule of law, Dicey continues by naively declaring, for example, that officials, like all others, are subject to nothing other than “the ordinary law of the land administered by the ordinary Law Courts,”
Id. at 190.
and, most vociferously, that the rule of law cannot accommodate administrative law or administrative tribunals, which involve special rather than ordinary bureaus.
Id.
Yet counting against a reified view of the rule of law for both Dicey and Raz is their recognition that, at least to some significant extent, the ideal follows from, rather than defines, certain other conditions. For his part, Joseph Raz allows that many rule-of-law principles “depend for their validity or importance on the particular circumstances of different societies.”
Reasonably understood, the intuition is that the rule of law is a function from societal conditions to constraints on the legal system that are justified by some sort of moral evaluative exercise.
Dicey's view was stiffer but somewhat analogous in this particular regard. He insisted that the rule of law expresses the idea that constitutional rules “are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”
The rule of law thereby manifested in the evolutionary development of rights to freedom, and of various official duties.
Id. at 191.
The courts afford redress for infringements of those rights, and help to define them over time.
Id. at 195.
Because habeas corpus statutes were illustrative of a vehicle by which “the acknowledged right to personal freedom may be enforced,”
Id. at 207.
it followed that law must provide judicial compensatory relief for harms caused by the suspension of habeas corpus, which “in truth arm the executive with arbitrary powers.”
Id. at 221.
In this regard, Dicey did summon some embryonic criteria for a rule-of-law evaluation of the regime's reaction to perceived crises, including whether an extraordinary situation immediately necessitated the suspension of habeas corpus to remedy what had become a “dangerous limitation on the authority of the executive government,”
Id. at 215, 219; see Dyzenhaus, supra note 3, at 2008–09 (discussing Dicey’s Note X appearing in the eighth edition to the Introduction to the Study of the Law of the Constitution, whereby Dicey “adamantly rejects that there is a ‘doctrine of political necessity or expediency’” empowering the regime to suspend the law, in favor of a “‘doctrine of immediate necessity’” held by “all individuals . . . to counter immediate dangers.” Here, too, and perhaps even more readily, this license is constrained by an evaluative standard protective of the rule-of-law project, namely, that “once the emergency has passed, the exercise of this power will have to be shown to meet the test of necessity if the person who wielded it is to escape punishment for having committed an illegal act”).
and whether the executive's discretionary exercise was “for the public good.”
If so, this would warrant the (all but inevitable) follow-up Act of Indemnity by the sovereign parliament shielding state agents from prosecution.
Id. at 220–21.
As just suggested, following Blackstone and Sir Edward Coke, Dicey also announced a doctrine of Parliament's absolutely sovereignty.
Id. at 39.
He went so far as to opine that “[n]o one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence.”
Id. at 66.
The theorist attempted, however, to reconcile his seemingly disparate views of legislative sovereignty and the law's supremacy. He argued that sovereign power was tempered both by narrow judicial oversight and interpretation of legislative acts, and by Parliament's combined authority residing in the Crown and the bicameral House of Lords and House of Commons system.
Id. at 331–32. Critics claimed, however, that Dicey had thereby inadvertently elevated the despot to the status of an absolute sovereign, and also that his doctrine had inadequately accounted for the distinction between legislative powers and procedures. See Arthur L. Goodhart, The Rule of Law and Absolute Sovereignty, 106 U. Penn. L. Rev. 943, 950–51 (1958); Richard A. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist 76 (1980) (explaining that Dicey “clearly never considered” the distinction between procedural rules constraining a sovereign legislature and the substantive power exercised by that legislature).
Dicey's views on sovereignty are somewhat of a digression, except with regard to his acknowledgment of the “actual limitations” on parliamentary power,
which will reconnect to this paper's concept of the rule of law. Dicey objected that, in his Jurisprudence, John Austin had conflated the separate notions of legal and political sovereignty, incorrectly ascribing the former power to the Commons as “trustees” for the electorate, rather than to the House of Commons itself.
Id. at 71 (citing 1 John Austin, Lectures on Jurisprudence, or The Philosophy of Positive Law 253 (4th ed. 1873) (1863)).
Legal sovereignty, to the contrary, was unhampered by any such trustee relationship for Dicey. But politically, or in a de facto sense, the sovereign's actual power was constrained, externally, by the capability of its subjects to disobey or resist, and internally by historical circumstances, including, even for the despot, “the moral feelings of the time and the society to which he belongs.”
Dicey's internal, political constraint on sovereign power approaches the nature of the rule of law as moral operator. Though similarly an evaluative mechanism rooted in the particular historical period, the rule of law is a more interactive concept, and addresses the procedural integrity of the legal system in the context of conditions existing in the larger society. The rule of law concept is also far more dynamic than is Dicey's internal constraint on sovereignty, because it is capable of generating the sort of widespread disagreement characteristic of fundamental moral questions.
For this reason, too, the idea of the rule of law is vulnerable to being hijacked and manipulated by interests that may be opposed to the public good.
See, e.g., Marcin Matczak, Poland: From Paradigm to Pariah? Facts and Interpretation of Polish Constitutional Crisis, in New Politics of Decisionism 141, 141, 154 (Violeta Beširević ed., 2019) (explaining that, given the Polish legal culture’s “excessive formalism,” “[p]aying lip-service to the rule of law allows Poland’s politicians to mask their attacks on the independence of the judiciary”); Krygier, supra note 1, 1t 752 (discussing the efforts of “rule of law” reformers whose measures “rather legitimise the power of a dictatorship that is ‘already accustomed to using any available legal tools and resources for political gain’”) (quoting Mark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan 206 (2013)); Donald J. Trump, Text of State of the Union Address, N.Y. Times, Feb. 5, 2020 (“saying, “With every action, my administration is restoring the rule of law and reasserting the culture of American freedom”), at www.nytimes.com (visited Feb. 5, 2020).
The rule of law, however, is a subtle concept, and the moral vigilance it embodies is presumed to be self aware and analytically astute enough to improve the moral situation.
Early development of the values embodied in the rule of law, from Plato and Aristotle, then Rutherford and Dicey, and on to contemporary commentators, points to the concept's moral evaluative operation. Rather than continuing seriatim from theorist to theorist, it should now be more useful briefly to probe the concept itself a bit more deeply. Unlike other writings, this article is not concerned with designating rule-of-law attributes—which can misleadingly seem fixed and unresponsive to historical periods and “the particular circumstances of different societies”
Raz, supra note 3, at 214; see also Nick Cheesman & Ronald Janse, Martin Krygier’s Passion for the Rule of Law (and His Virtues), 11 Hague J. of the Rule of Law 255, 272 (2019) (paraphrasing Martin Krygier’s view that “[s]imilar rules and institutions may have different effects in different societies. Those that may contribute to the rule of law in some places may have no significant effect or even undermine it in others”).
—but rather with the concept as a structural, evaluative vehicle for improving the moral situation at the intersection of legal systems and their subjects.
Cf. Martin Krygier, The Rule of Law: Legality, Teleology, Sociology, in Relocatingthe Rule of Law 45, 54 (Gianluigi Palombella & Neil Walker eds., 2009) (praising E.P. Thompson’s work, Whigs and Hunters: The Origin of the Black Act (1977), saying that, “[p]erhaps fortunately, Thompson was not a lawyer, and unlike Dicey and most other lawyers who write about the rule of law, he did not seek to spell out just what legal elements allegedly produced it”); Philip Selznick, Law, Society, and Industrial Justice 14 (1969) (saying that, “[p]roperly understood, the concept of legality is more critical than celebrationist. An affirmative approach to legal values need not accept the defensive rhetoric of men in power. On the contrary, it offers principles of criticism to evaluate the shortcomings of the existing system of rules and practices”).
If we are willing to view the rule of law as a moral operator, then this concept should analogize to other sorts of operators.
Logical operators, for instance, are well known. A simple one is the conjunction operator and, notated as the & sign. The conjunction relationship is not, however, determined by use of &, but rather by the context in which terms or items arise. For instance, the sentence “Rutherford was a courageous theorist” is plausibly seen as the conjunction “Rutherford was courageous” and “Rutherford was a theorist.” At the same time, merely using the conjunctive form does not guarantee a conjunction relationship. If we were to say, for example, “Plato and Aristotle were contemporaries,” and would not function as a conjunction operator.
See generally Arnold Koslow, A Structuralist Theory of Logic 7–8 (1992).
Finally, the status of the logical operator depends on each element, such that, for example, the value of the conjunction A & B depends on both the value of A and the value of B.
Although use of the term the rule of law by theorists and in the larger community will tend to reflect the concept's nature and significance at the historical moment, the term's use is not necessarily always illustrative.
See supra note 165; see also, e.g., Louise Arbour, Op-Ed: The Rule of Law, N.Y. Times, Sept. 26, 2012, at nytimes.com (visited Jan. 2, 2020) (writing that “repressive regimes are more than happy to refer to ‘rule of law’ as they crack down on dissent at home”); Josh Chin & Te-Ping Chen, China Targets Human-Rights Lawyers in Crackdown, Wall St. J., July 12, 2015, at wsj.com (visited Jan. 2, 2020) (reporting one Amnesty International researcher’s comment that “‘[t]his coordinated attack on lawyers makes a mockery of President Xi Jinping’s claims to promote the rule of law’”).
Contextual analysis indicates whether the term is being applied toward a moral evaluation of the exercise of official power in line with legal procedural values. But also, the concept of the rule of law stands for a multifaceted relationship between societal conditions and the legal system's manner of governance from a mostly procedural point of view. Adjustments made at any relevant intercept in that relationship can alter the way in which citizens or theorists appropriately apply the rule of law. The end of the matter is the moral situation attained by law in its procedural operation and accessibility, in relation to the larger society.
The Rule of Law Implicates Conditions That Impact Access to Law
Theorists, practitioners, and social activists writing about the rule of law have consistently fixed their gazes on its constitutive core principles. These range from being the characteristics of laws, lawmaking, and the legal system that are minimally necessary for ascribing rule by law to the society, to those that are more expansive and conducive toward securing substantive rights and delivering some meaningful form of justice.
See, e.g., Ronald Dworkin, A Matter of Principle 11–12 (1985) (reasoning that a “rights” conception of the rule of law does not distinguish “between the rule of law and substantive justice”); World Justice Project, Rule of Law Index 2019, at worldjusticeproject.org (visited Jan. 24, 2020) (assessing countries’ rule-of-law performance based on factors that include the extent to which they guarantee “fundamental rights” and civil and criminal justice, as well as constraints on government powers and absence of corruption).
Even as they remain fairly unified in their quest to demarcate rule-of-law attributes, commentators divide over which attributes to assign, and how to conceptualize the construct.
I believe that the attribute-driven project is problematic, least of all because the diverse and sometimes undisciplined interpretations of rule-of-law values generate anxiety that the rule of law “might devolve to an empty phrase . . . .”
This paper alternatively sees the rule of law as a structural, evaluative component of collective social consciousness, one that is relativized in relation to societal conditions. Only a very strained account will assess the status of the rule of law at any historical moment by looking solely at lawmaking formalities and the judicial procedural rules by which participants in the legal system are abiding.
Jeremy Waldron's project nimbly loosens up the rule of law analysis, albeit by melding the concept of law and that of the rule of law. Claiming some distance from the received approach to the rule of law, he sees courts as an essential component of an arrangement that can rightly be called a legal system.
Waldron criticizes Hart for his limited focus on the courts’ “output function,” their delivery of “authoritative determinations of the question whether . . . a primary rule has been broken.”
Id. at 21 (quoting Herbert L. A. Hart, The Concept of Law 96 (2d ed. 1994) (1961)).
He also confronts Raz, who views the courts as the primary norm-applying organ that decides individual cases, for his similar concentration on the judicial system's outputs.
Waldron, supra note 8, at 21–22 (critiquing Joseph Raz, Practical Reason and Norms 132–36 (1990)).
But after noting Raz's comments elsewhere about the need for impartiality and fair hearings as “‘obviously essential for the correct application of the law and thus . . . to its ability to guide action,’”
Waldron, supra note 8, at 22 (quoting Raz, supra note 2, at 217).
Waldron unhappily but correctly locates Raz's normative procedural point as “relevant to law only at an evaluative level, rather than at the conceptual level.”
It is easier to establish, however, that morally evaluative claims fall within the concept of the rule of law than within the concept of law itself. Closely linking the concepts of law and the rule of law will appear problematic to those who resist ascribing rule-of-law virtues to the very idea of a legal system. Fair and impartial hearings—markers by which to evaluate the system's moral standing—are more readily seen as integral to the rule of law than as ingredients required to qualify an arrangement as a legal system. Indeed, pronouncements urging that “an independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; [and] equality of all before the law” be counted as “essential characteristics of the Rule of Law” seem to presuppose, as the underlying problem, that these are not otherwise essential characteristics of law per se.
Mark Ellis, Toward a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice, 72 U. Pitt. L. Rev. 191, 196 (2010) (quoting International Bar Association, Rule of Law Resolution (2005)).
So for now let's bypass Waldron's angst about the thinner concept of law, and take the attributes he deems essential to a legal system as ingredients in the rule of law.
Notably, four years after publishing The Concept and the Rule of Law, Waldron spoke of “the values that motivate the traditional formal/procedural aspects of the Rule of Law,” and of such virtues as generality, prospectivity, and stability as “Rule-of-Law requirement[s].” Waldron, supra note 144, at 50–52.
Intricately formal argument structures do seem to fairly uniquely characterize legal systems,
but these can serve bad purposes as well as good. It is when these structures are made available to community members with equal access and fair treatment upon entry that they promise to improve the moral situation. Waldron's The Concept and the Rule of Law is remarkable for its language turning from an exclusive focus on the legal system's outputs to the ways in which the system accommodates communities’ and individual litigants’ participation. Legal theorists have paid insufficient attention to the conditions allowing for the inputs, which may seem a digression from the characteristics of lawmaking and legal decision-making familiar to law students and practitioners.
Waldron marshals procedural features necessary to the respectful treatment of litigants and others engaging in the legal system. Litigants are able to submit their arguments along with supporting evidence, and to have their presentations supervised by an impartial official who keeps things orderly and relevant to the issues. The parties have a right of reply and rebuttal toward convincing the adjudicator, and the tribunal is expected to consider all of the proffers and to give reasons for its ruling.
Id.
In addition to the qualities Waldron highlights, legal institutions also invite the public in to the courtroom to accomplish non-adversarial goals defined by power-conferring laws.
Citizens depend on the law to effect a name change, get a will administered, a divorce decreed, a mortgage registered, and so on, all of which tends toward respect for the dignity of the individuals.
However, even this richer view of the rule of law, which is conscientious about inputs and not solely the legal system's outputs, remains less than adequate. Although characteristics such as those just discussed guide and govern inputs into the legal system, they are themselves the system's outputs, in the form of legal and procedural rules or norms developed and adhered to by legal officials.
E.g., N.Y. C.P.L.R. § 101 (2019 ed.) (prescribing that “the civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges”).
They apply to all participants equally and, like tort law principles, are blind to distinctions between eggshell and fortified craniums. In tort law, however, the eggshell skull rule is a substantive principle that aims at safeguarding the rights of weaker litigants who may have been more vulnerable than others to the harm inflicted.
See Bushong v. Park, 837 A.2d 49, 55 (D.C. Ct. App. 2003).
When the rigors of the legal system's own mazes, preconceptions, abstractions, and presumptions are at issue, along with “the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread,”
Anatole France, The Red Lily 75 (1917) (1894); see Martin v. City of Boise, 920 F.3d 584, 603 (9th Cir. 2019) (incorporating France’s insight into constitutional jurisprudence, ruling that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to”).
rule-of-law virtues do not tend to look the same to the socially, economically, and politically eggshell skulled as they do to the powerful.
Theorists view law's public character, a rule-of-law principle, as providing everyone with the opportunity, at the least, for equal access to legal norms and legal data.
But the more powerful persons and entities have continual access and updates on laws, regulations, and legal developments that impact their planning and inform their expectations, whereas the less powerful routinely wing it and encounter legal information only at times of special need or personal crisis. Legal data is privatized or at least commodified, available to the few on prohibitively costly or otherwise restricted online platforms such as Lexis, Westlaw, and Pacer. Legal services are also often prohibitively costly, and attorneys may be sparsely available to serve the general public, notwithstanding codified pro bono requirements.
See, e.g., Amendments to Rules Regulating the Florida Bar – 1–3.1(a) and Rules of Judicial Administration – 2.065 (Legal Aid), 630 So.2d 501, 502 (Fla. 1993) (reiterating “that this Court, as the administrative head of the judicial branch, has the responsibility to ensure that access to the courts is provided for all segments of our society”).
All of this engenders a good amount of pro se practice, but procedural rules that condition participants’ inputs frequently trip up not only lay litigants, but licensed counsel as well.
See, e.g., James S. Casebolt, Procedures and Policies of the Colorado Court of Appeals, 24 Colo. Law. 2105, (1995) (reporting that, even for the one court in this one state in the fiscal year ending June 30, 1995, “664 cases were eventually dismissed because of procedural defects, settlement or lack of jurisdiction”); Alexandra Harwin, Title VII Challenges to Employment Discrimination Against Minority Men with Criminal Records, 14 Berkeley J. Afr.-Am. L. & Pol’y 2, 12–13 (2012) (reporting that, in cases filed since the late 1980s, “[p]laintiffs lost almost every [such] case identified during this period, [and] the high loss rate reflected the fact that over fifty percent of the cases were brought pro se. Many pro se plaintiffs floundered because of procedural defect”); Paul H. Robinson, An Empirical Study of Federal Habeas Corpus Reviewof State Court Judgments 13 (1979) (noting that 55% of petitions challenging state court convictions and sentences were dismissed because of procedural defects).
Disadvantages in the legal system arise not solely from lesser access to resources and expertise, or less sophisticated legal capabilities, but rather from biases held and discrimination practiced by the privileged and more powerful against groups singled out for disfavored treatment. The point is not that an overly broad concept of the rule of law ought to apply, so as to promiscuously target all manner of societal inequities.
The point is rather that the principles most people ascribe to the rule of law depend for their vitality not solely on their inherent, ex ante virtues but on their actual ex post effects.
For a different argument that the ideal of treating people with equal concern, in more strictly economic terms, is best suited by an ex ante approach, because this demonstrates “the right respect for individual responsibility,” see Dworkin, supra note 84, at 358–60.
Critical is whether law's impacts liberate the community to participate robustly in the legal system, or reinforce significant limitations on people's actual capabilities to do so by masking inequalities and oppressions that reinforce the status quo.
Cf. Amartya Sen, Resources, Values and Development 316 (1984) (arguing that “[t] he category of capabilities is the natural candidate for reflecting the idea of freedom to do”).
Under a quite thin, formalist version of the rule of law, there will still be two sides of the coin. We have just noted some problems even with the formal ideal that laws be made publicly available. This gives the public the opportunity to know, understand, and follow the legal rules, and to plan accordingly. But if one group is significantly better able to know, follow, and plan, or if one is significantly hampered in doing so, is it inconceivable that this might impact, or cause fissures in, the moral, rule-of-law evaluation of the legal system?
In re Daniels v. Department of Human Res., 953 P.2d 1, 12 n.4 (Nev. 1998) (Springer, C.J., dissenting) (quoting Lord Justice Sir James Mathew statement that, “[i]n England, Justice is open to all, like the Ritz”); cf. Robin West, The Limits of Process, in Getting to the Rule of Law 32, 46 (James E. Fleming ed., 2011) (stating that “Waldron’s procedural Rule of Law does not protect plaintiffs in court, against, for example, the immunities of various actors – not only prosecutors and police officers but also church officials or spouses or parents or charities – from liability or against rules of evidence designed to protect various ‘privileges’ that drastically limit the liability of entire classes of defendants”).
And isn’t it conceivable that formal principles such as publicity, generality, stability, and prospectivity work injustice in certain cases, if inequality is the default?
See Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992) (claiming that, “despite law school indoctrination and belief in ‘the rule of law’ – abstract principles lead to legal results that harm blacks and perpetuate their inferior status”); cf. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L. J. 1281, 1325 (1991) (arguing that, “[i]n societies governed by the rule of law, law is typically a status quo instrument; it does not usually guarantee rights that society is predicated on denying”).
Hence, “it is widely accepted that moral principles are defeasible when it comes to determining the overall moral status of an action ”
Maike Albertzart, Moral Principles 152 (2014).
Waldron would harness the rule of law's formal and procedural virtues toward a conceptual slide “in a particular substantive direction.”
By this elegant move, for instance, the rule-of-law requirement of generality might point us in the direction of the just treatment alike of like cases, or the prospectivity requirement move the ball toward honoring human agency and interests in planning.
Id.
What Waldron is seeking to avoid is a bloated concept of the rule of law by which everyone competes to promote their own favorite value or political ideal.
Id. at 47.
Certainly, the rule of law cannot cater to every expectation, even if the expectation has been subjectively engendered by the law's own pronouncements. But Waldron's theory is too parsimonious in its derivative approach to the substantive dimension to the rule of law. Few people—whether lay individuals, legal practitioners, or theorists—would shrink from alleging deterioration of the rule of law were legal or government officials to declare that, while preserving all of the people's formal and procedural rights, they no longer intended to follow the constitution,
See International Refugee Assistance Project v. Trump, 883 F.3d 233, 350 n.4 (4th Cir.) (Wynn, C.J., concurring) (stating that “[o]ur country adheres to the rule of law in preserving core constitutional protections”), vacated on other grounds, 138 S. Ct. 2710 (2018); Dennis Mogambi Mong’are v Attorney General, Civil Appeal 123 of 2012, at *33 (Nairobi, Kenya, Ct. App. 2014) (eKLR) (Odek, J.) (emphasizing that “[t]he rule of law requires that all judicial and administrative action must comply with the law including the Constitution”).
or did not any longer deem themselves bound by substantive constitutional guarantees.
Although the constitution might be seen as primarily a procedural document or set of practices, it certainly reaches substantive guarantees as well. See Hans Kelsen, General Theory of Law & State 265 (2005) (1949).
Nor would such concerns be insufficiently constrained in relation to the concept of the rule of law. Rights to freedom of speech or assembly, for instance, or adherence to the constitutionally mandated separation of powers, ultimately implicate the capability of the people to make their voices heard within the legal system, either directly or by means of representation in the lawmaking process.
At the same time, when appraising the legal system's moral standing, the community weighs whether officials are adhering to or frustrating core expectations about the rule of law that appear justified by constitutional provisions, law's previous outputs, or official pronouncements. The moral pressure citizens place on law reinforces legal officials’ prudential, if not moral, considerations that help rein in their exercises of discretion or potential abuses of authority. Questions are not solely how far the court should go or how limited it should be, but also how far it can go or how constrained it must be.
Respect for mainly procedural and access-related expectations stemming from law's own publicly-appraised conduct or constitutional interpretations constrains the rush to include just any favored value in the rule-of-law formulation.
See generally Janus v. American Fed’n, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting) (writing that “[t]o dismiss the overthrowing of . . . settled expectations as entailing no more than some ‘adjustments’ and ‘unpleasant transition costs,’ . . . is to trivialize stare decisis”).
Ultimately, however, legal and political authority pays more attention to some appraisers than to others. As Stephen Holmes has put it: such authority “has no incentive to treat all groups equally, because it needs the cooperation of some groups more than the cooperation of others. In particular, it needs the cooperation of well-organized groups with assets that can be easily mobilized for war and other state purposes.”
Yet legal officials’ prudential concerns should respond not only to “well-organized groups” and the pressures and assets they muster, but also to “the moral feelings of the time,”
Dicey, supra notes 144, at 76; see supra text accompanying notes 165–66.
if cogently expressed in some particular direction.
It is also possible that the larger community’s evaluative expression may be incoherent at times. See Stephen Sedley, How Laws Discriminate, 21 London Rev. Books (Apr. 1999) (noting, for example, that “public comprehension of sentencing has been so damaged by media presentation that the public simultaneously believe that judges sentence too leniently and, when asked what they would do, turn out to favour sentences markedly lighter than those the judges impose”).
These expressions will likely be broken across constituent or party lines, and the directions far from univocal. Nevertheless, the moral dialectic characterizing a healthy rule-of-law evaluation, if not itself quashed, should constrain an authoritarian summoning of historical circumstances as an excuse to depart from, or to remain apart from, the rule-of-law values that are actually realizable during the period. And for better or for worse, public morality concerning the rule of law will often likely circle back to the legal community, finding its sources and influences about the legal system's standing in the things lawyers have to say about it all.
Cf. Dworkin, supra note 173, at 26 (saying about “political” judicial decisions about rights, that “the public sense of illegitimacy would presumably disappear if it were recognized by lawyers and other officials that such decisions are consistent with democracy and recommended by an attractive conception of the rule of law”).
Conclusion
Rousseau concludes his Notes to his Second Discourse by saying, “[t]he magistrate is the judge only of what is strictly law; the people are the true judge of morals ”
Jean-Jacques Rousseau, A Discourse on Inequality 172 (Maurice Cranston trans., 1984) (1755).
Although he idealizes the “people” in advancing his vision of equality, Rousseau's dichotomy between legal and moral judging sits well with the distinction set down in this paper between the law and the rule of law. The legal system regulates a rich and broadly-defined array of transactions, its formal structures allowing people to argue their claims and adjudicators and legislators to determine the law. The people evaluate the law and the legal system in various ways, and when they express moral concern over such matters as the system's formal and procedural integrity—including not only such issues as the generality, clarity, prospectivity, and stability of the laws, but also the system's equal accessibility to, and fair and dignified treatment of, individuals and groups—then they are participating in the rule-of-law project.
The difference, however, between traditional concepts of the rule of law and the structuralist concept presented in this paper is that the latter situates the legal system in the context of the larger society, and implicates the actual capabilities of the people as an integral aspect of the rule-of-law project. The structuralist approach doesn’t abandon the “ought implies can” principle, but rather extends the domain of what is actually possible beyond the narrow confines of existing legal procedures. Conditions in society count as well and this renders the rule of law doctrine a potentially subversive evaluative vehicle,
See generally Krygier, supra note 54, at 209 (addressing the “critical potential of the concept and the tradition” of the rule of law, supplying a language by which those in power “might be condemned”).
however much the rule of law slogan can be manipulated and perverted to affirm the status quo.
Pashukanis identified some of the internal tension when he said that “the logic of the relations of dominance and subservience can only be partially accommodated within the system of juridical concepts.”
Pashukanis, supra note 94, at 96. Applying the structuralist, moral-operator theory to the lingering Schmittian challenge to the concept of the rule of law is for another day. That challenge arises from Carl Schmitt’s decisionist claim that the sovereign is “he who decides on the exception,” and that therefore, during times of crisis, the general legal order and decision-making based on discussion and dialogue will have to be jettisoned in favor of the executive’s dictatorial exercise of personal judgment. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 5 (George Schwab trans. 1985) (1922). Rare periods of emergency warranting minimally-constrained executive and administrative decision-making capabilities, or even an outright suspension of rule by law – a legally created black hole – might happen. See Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1134 (2009). But the rule-of-law project works to limit the Schmittian exception to the most narrowly-practiced and shortest-lived period that would be strictly necessary to address the emergency. See Dyzenhaus, supra note 2, at 2008–10. By the structuralist view, however, that project is shared by a broader constituency than that considered by theorists such as Dicey, who viewed judges as the main guardians of the rule of law, or Dyzenhaus, who allows for the further contributory role by Parliament or the executive. Id. at 2011; see Krygier, supra note 54, at 208 (opining that “[a] tradition in which the rule of law has been an animating value shared, always unevenly but still significantly, among initiates, lay people, and institutions is a good one to have”); cf. Bruce Ackerman, The Emergency Constitution, 113 Yale L. J. 1029, 1068 (2004) (speculating that prolonged exercise of emergency powers “may help provoke a popular movement in support of the constitution – or it may not”).
