Rule of Law - Philosophical Perspectives

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by Guido Pincione

Contents

Some Conceptual Issues

The term “rule of law” is used for the principle that all citizens are equally subject to the law and entitled to its protection. Under the rule of law, rulers are as subject to law as ordinary citizens are. This idea is sometimes expressed through formulas such as “government subject to law” and “government bound by law.” Joseph Raz observes that such formulas would be tautological if they allowed us to say that any governmental action conforms to the rule of law, for we distinguish governmental actions from unlawful actions, actions going beyond government’s legal capacities. (Raz 1979: 212) Accordingly, Raz writes that “[g]overnment by law and not by men is not a tautology if ‘law’ means general, open, and relatively stable law.” (Raz 1979: 213)

It is usual to contrast the rule of law with the rule of persons. Under the rule of law, no one creates the law in any sense that excludes him from the reach of legal rules. Rule-creation itself ought to proceed in accordance with rules. Universal rule following is essential to the rule of law. The various attempts to characterize the rule of law can accordingly be interpreted as attempts to lay down the conditions under which everyone follows rules.

On A. V. Dicey’s classical account, the rule of law comprises three ideals: (a) law prevails over arbitrariness and discretionary power, (b) “every man … is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals,” and (c) “the general principles of the constitution (as, for example, the right to liberty, or the right of public meeting) are … the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts,” rather than the result of legislation. (Dicey 1915: 183-191). The requirement that citizens follow rules rather than rulers arguably underlies these three ideals. It is understandable, then, that the rule of law has been viewed both as an ideal of political morality and as a conceptual requirement of the law, especially if law is viewed as a system of rules. In this spirit, Lon L. Fuller argues that, to the extent that law is a system of rules, it must display an “inner morality” conveyed by the requirements of generality, publicity, non-retroactivity, clarity, consistency, possibility of compliance, stability, and “congruence between official action and declared rule.” (Fuller 1969: 33-94; 70, n. 29) Retroactive laws, for example, cannot possibly be followed, and so frustrate the ideal of rule-governed persons. Retroactive laws defeat the very purpose of the law, which is to guide action.

We need, however, a nuanced view of the relationships between the rule of law, rule following, and action guiding. We do not see strict liability for harm caused by specified dangerous activities as inimical to the rule of law, even though there is a natural sense in which we can say that strictly-liable persons could not have anticipated the harms they caused, and so could not have intended them. Strict liability does not aim at guiding persons towards harmless activities, any more than an income tax does not aim at guiding persons towards unprofitable activities (Fuller 1969: 74-75). Yet, strict liability guides action in a weaker sense: it helps citizens work out the expected social costs and benefits of certain activities, and it may do so with an eye to making the social costs of the activity coincide with the agent’s costs—a desirable result in contexts where alternative ways of making people “internalize externalities” are either impractical or objectionable. Similarly, taxation (as, indeed, any other piece of legislation) guides action in the minimal sense of altering citizens’ incentives. Laws may attempt to guide action in a narrower sense, i.e. by prohibiting certain types of conduct. Criminal law is a paradigmatic example of this narrower understanding of action guiding: law is here naturally viewed as prohibiting certain actions. In any event, the weak sense of “action guiding” (the one under which, e.g., strict liability laws are not retroactive) is compatible our conception of the rule of law as an ideal of political morality.

Fuller acknowledges that his requirements for the inner morality of law may conflict with each other, as when changed circumstances demand changes (and so some instability) in the law (Fuller 1969: 45). Such conflicts raise doubts about the “inner morality of law” being sufficient for the rule of law, since it is far from obvious how to conduct tradeoffs between the above requirements in a principled manner. Notice, also, that the boundaries between the “internal” and the “external” (i.e., substantive) moralities of law are blurred. This is especially notorious in connection with the generality requirement. It is tempting to believe that generality can be analyzed by means of purely logical notions, such as the exclusion of proper names from laws. However, as Fuller points out (1969: 47), this formal analysis fails to capture our intuition that a statute providing that it shall apply “to all cities in the state which according to the last census had a population of more than 165,000 and less than 166,000” is unduly particular (and not merely, we should add, because of the proper name “the state”). Fuller is right in claiming that fairness, rather than generality, is the desideratum being ignored here. Moreover, violation of an internal requirement may be justified on external grounds. Thus, on some views, appropriations to fund research on a new military weapon may be kept secret, and so may permissibly infringe the publicity requirement (Fuller 1969: 92).

It might seem that Dicey’s feature (c), which confers to the courts the interpretation of constitutional principles, fails to meet the generality requirement, since such interpretations take place “in particular cases.” Yet judicial review is arguably necessary for universal subjection to rules, because there would otherwise be no clear sense in which legislators are constrained by constitutional rules (Spector: 2003). On this view, the rule of law entails separation of powers, and in particular judicial review. The connection between the rule of law and liberal constitutionalism becomes here evident.

Theorists of deliberative democracy, however, view the rule of law as mainly instrumental to a legitimate democracy, i.e. one that embodies the ideal of public deliberation as a prelude to the vote. On this view, the rule of law excludes domination of some persons by others, and so enables free, equal, and rational participation in political decision making. Jürgen Habermas’s “discourse theory” illustrates this account of the rule of law as conceptually presupposed by democracy (Habermas 1996: 449).

We have already seen that Dicey contrasts the rule of law with “arbitrariness and discretionary power.” Sometimes the term “arbitrary” is used to indicate a certain type of objectionable motivation behind lawmaking (for example, self-interest). In this sense, arbitrary power can coexist with the rule of law as long as everyone, including lawmakers, is subject to the “inner morality” of law—the objectionable motivations underlying rule-creation need not detract it from its generality, stability, publicity, etc. Others prefer to contrast the rule of law with discretionary powers, meaning that those powers, whatever the motivations with which they are exercised, are unbounded by rules (Pincione 2003: 400). This account helps us clarify the sense in which the rule of law is the opposite of the rule of persons, and what is wrong with the latter, namely, domination of some by others. So conceived, the rule of law is deep rooted in the republican tradition of political theorizing, which is inspired by the ideal of non-domination (Pettit 1997: 51-109).

Rule of Law as Coordination

On some accounts of the legal system, the rule of law is conceptually impossible. For example, when John Austin asserts that an independent political society necessarily rest on the unbounded will of a sovereign (Austin 1995: 179, 212), he seems to make no conceptual room for the rule of law. Conversely, views of the legal system that allow for universal rule following provide a conceptual background against which the rule of law makes sense as a political ideal. Thus, H. L. A. Hart argues that legislators, judges, and citizens converge on a “rule of recognition” when it comes to identify the rules belonging to the legal system to which they are subject. (Hart 1961: 94-95). For Hart, such a convergence is a social fact. More recent developments in rational-choice theory help explain the nature of that fact. The most basic rules of a legal system—its effective constitution—may be seen as coordination points, that is, types of action that  each agent finds cost-efficient to further his or her aims, given how others behave (Hardin 1999, 82-140). An interaction may have more than one coordination point, and these may occupy a different place in each player’s preference ranking, but any of those points determines a uniquely best strategy for each, given how the others play—it would be irrational for each to alter his or her strategy, even if an alternative equilibrium would leave everyone better off. The “kwerty” keyboard is a usual illustration: even though we could type more quickly in another keyboard, manufacturers and typists have no reason to produce or become fluent with the optimal keyboard. Given how manufacturers and typists are working now, their continued loyalty to kwerty is predictable. The resulting regularities may be indistinguishable from rule following to an external observer (Maravall and Przeworski 2003, 2-5), although the sense of obligation that is involved in genuine rule following is absent. Whether a coordinative equilibrium can still be termed a rule of law is largely a verbal question. It cannot, if “rule of law” designates rule following from an internal point of view (Hart 1961, 88-91). Other writers locate instead the principal value of the rule of law in its external, coordinative function (Alexander and Schauer 1997; Barnett 1998: 90-99). Moreover, seeing constitutions as coordinative equilibria allows us to grasp their formal value, as it were: at a minimum, they spare us from a costly state of nature, similar to the costly “state of nature” previous to the convergence upon the kwerty keyboard.

Even though coordination may not, for the reasons already stated, entail the kind of rule following that seems essential to the rule of law, it may be instrumental to the rule of law. For example, constitutions may facilitate citizens’ coordination to resist (e.g., through judicial review) governmental deviation from rules (Maravall and Przeworski 2003, 4-5). If a critical number of people see the formal legal system as an instrument to channel their interests, the rest may develop an incentive to organize themselves to exploit in turn the legal system to their own benefit. This suggests that the rule of law prevails whenever a certain degree of equality, or non-systematic exploitation of one group by another, is achieved (Holmes 2003). Perhaps we should conclude that the game-theoretical notion of equilibrium helps dissolve a conundrum of legal philosophy, namely, how universal subjection to rules is possible without anybody dictating those rules—how, in short, the rule of law is possible.

Other writers argue that the game-theoretical model depicts a modus vivendi, but no real commitment to rules: agents cease to abide by the “rules” whenever the balance of power changes and makes it in their interest to do so (Gaus 2003, 58-60). Whether there is a coherent game-theoretical account of genuine rule following is a contested matter. For an affirmative answer, see (Pincione 2004, 452-458).

The Rule of Law and Rights

Those who regard non-domination as the central value realized by the rule of law are naturally led to the view that individuals have rights, i.e. legitimate claims to having their vital interests or choices protected. Theorists disagree, however, about the specific contents of those rights. Classical liberals tend to regard private property rights as essential to the rule of law. Thus, F. A. Hayek insists that the same set of rules should apply to government and citizens; for him, generality of the laws is essential to being subject to laws rather than to persons. Since Hayek’s notion of generality excludes special-interest legislation, his commitment to the rule of law leads him to challenge many activities of the modern regulatory state. He instead supports a regime of strong private property rights and the free markets that this regime entails (Hayek 1976: 11-12, 15-17, 27-29; Hayek 1979: 13-19, 93-97, 143-145). Other writers hold instead that the rule of law is neutral among various conceptions of rights. Thus, Raz maintains that “the rule of law … can hardly be used to oppose in principle governmental management of the economy.” He believes (i) that such management may “increase freedom” understood as “power of action,” and (ii) that power of action necessitates general, open, and stable rules (Raz 1979, 220 and n. 9). So Raz must be thinking that (what Hayek and other classical liberals would characterize as) certain curtailments of private property rights are consistent with, and perhaps necessitated by, the rule of law.

The extent to which legal rights limit discretionary powers depends, among other things, on the possibilities for interpretive manipulation. Some writers argue that key political concepts, such as the concepts of liberty and equality, are “essentially contestable,” meaning that they allow for various “conceptions” and that there is no warrant for the claim that any of those conceptions is the best (Swanton 1985, 811-827). The more contestable rights are, the weaker the rule of law will be. Guido Pincione argues that welfare rights—i.e., rights to aid—are ineradicably contestable and so intractable under the rule of law. He believes that, by contrast, “market rights” (i.e., those entailed by full ownership rights) are hardly contestable. He accordingly argues that market rights are instrumental to the rule of law, especially if efficiency is necessary for the legitimacy of a legal system. Moreover, even if a constitution endorsed one definite conception of a welfare right, deep causal uncertainties would remain as to the policies that would best implement that right. The constitution may provide, for instance, for “decent housing” (thus adopting one of the contestable conceptions of an abstract right to have one’s basic needs satisfied), and statutes may in turn lay down fairly specific characterizations of decent housing, but much causal uncertainties will still surround the adoption of the policies conducive to implement the right, so defined. For Pincione, then, welfare rights are not only conceptually contestable, but “causally” contestable as well—something that, he claims, finds no parallel in market rights. To the extent that, in Pincione’s views, contestability necessitates discretionary powers that threaten the rule of law, he concludes that welfare rights are inimical to the rule of law (Pincione 2003). Hillel Steiner’s argument that only a system of private property rights is “compossible,” i.e. consists of rights whose conceivable exercises are mutually consistent, may be taken to suggest the same conclusion, since conflicts of rights open the door to interpretive manipulation (Steiner 1994, 55-85). A related point is that viewing rights as protecting choices, rather than interests, makes it easier to devise a system of non-conflicting rights (Waldron 1993, 204-206).

The fact that constitutional concepts are contestable is not the only threat to the rule of law. Administrative law is abundant in detailed regulations purportedly aimed at constraining the interpretive leeway of regulatory agencies. Yet it is dubious that such regulations, and their applications to particular cases, conform to any recognizable ideal of the rule of law. For example, antitrust laws purport to fight monopoly, but even if the agencies that monitor competitive markets used the relatively precise notion of monopoly that figures in standard economics, decisions as to whether a firm is the only producer of a certain good would be subject to ineradicably wide discretion. To mention just one quandary, finding that two goods are of the same type depends on classification criteria whose objective superiority is debatable. A firm may be monopolistic on some definitions of the good produced (e.g., “electric car”), but not on less fine-grained definitions (e.g., “car”) (Sowell 1996, 203-204).

Annotated bibliography

- Alexander, Larry (1997), and Frederick Schauer, “On Extrajudicial Constitutional Interpretation,” Harvard Law Review 110, pp. 1359-1387.

- Austin, John (1995), The Province of Jurisprudence Determined, ed. by Wilfrid E. Rumble, orig. pub. 1832 (Cambridge: Cambridge University Press).

- Barnett, Randy E. (1998), The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press).

-Dicey, A. V. (1915), Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan).

- Fuller, Lon L. (1969), The Morality of Law, rev. ed. (New Haven: Yale University Press).

- Gaus, Gerald F. (2003), Contemporary Theories of Liberalism (London: SAGE).

- Habermas, Jürgen (1996), Between Facts and Norms, trans. by William Rehg (Cambridge, MA: MIT Press).

- Hardin, Russell (1999), Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University Press).

- Hart, H. L. A. (1961), The Concept of Law (Oxford: Clarendon Press).

- Hayek, F. A. (1976), Law, Legislation, and Liberty, Vol. 2: The Mirage of Social Justice (London: Routledge and Kegan Paul).

- (1979) Law, Legislation, and Liberty, Vol. 3: The Political Order of a Free People (London: Routledge and Kegan Paul).

- Holmes, Stephen (2003), “Lineages of the Rule of Law,” in Maravall and Przeworski (2003).

- Maravall, José María, and Przeworski (2003), Adam, “Introduction” to Maravall and Przeworski (eds.),Democracy and the Rule of Law (Cambridge: Cambridge University Press).

- Pettit, Philip (1997), Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press).

- Pincione, Guido (2003), “Market Rights and the Rule of Law: A Case for Procedural Constitutionalism,”Harvard Journal of Law and Public Policy, Vol. 26, No. 2, pp. 397-454.

- (2004) “Should Law Professors Teach Public Choice Theory?,” Chicago-Kent Law Review, Vol. 79, No. 2,Symposium: Law and Economics and Legal Scholarship, ed. by Horacio Spector, pp. 451-470.

- Raz, Joseph (1979), The Authority of Law (Oxford: Clarendon Press).

- Sowell, Thomas (1996), Knowledge and Decisions, 2nd ed., orig. pub. 1980 (New York: Basic Books).

- Spector, Horacio (2003), “Judicial Review, Rights, and Democracy,” Law and Philosophy 22, pp. 285-334.

- Steiner, Hillel (1994), An Essay on Rights (Oxford: Blackwell).

- Swanton, Christine (1985), “On the ‘Essential Contestedness’ of Political Concepts,” Ethics 95, No. 4.

- Waldron, Jeremy (1993), Liberal Rights: Collected Papers 1981-1991 (New York: Cambridge University Press).

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