The Rule of Law

Nomos XXXVI

Ian Shapiro

• Publisher: NYU Press
• Year: 1995
• ISBN:
  9780814739594
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

From the sprawling remnants of the Soviet empire to the southern tip of Africa, attempts are underway to replace arbitrary political regimes with governments constrained by the rule of law. This ideal which subordinates the wills of individuals, social movements--and even, sometimes, democratically elected majorities--to the requirements of law, is here explored by leading legal and political thinkers.

Part I of The Rule of Law examines the interplay of democracy and the rule of law, while Part II focusses on the centuries-old debate about the meaning of the rule of law itself. Part III takes up the constraints that rationality exercises on the rule of law. If the rule of law is desirable partly because it is rational, then departures from that rule might also be desirable in the event that they can be shown to be rational. Part IV concentrates on the limits of the rule of law, considering the tensions between liberalism and the rule of law which exist despite the fact that reasoned commitment to the rule of the law is preeminently a liberal commitment.
Contributing to the volume are: Robert A. Burt (Yale University), Steven J. Burton (University of Iowa), William N. Eskridge, Jr. (Georgetown University), John Ferejohn (Stanford University), Richard Flathman (Johns Hopkins University), Gerald F. Gaus (University of Minnesota, Duluth), Jean Hampton (University of Arizona), Russell Hardin (University of Chicago), James Johnson (University of Rochester), Jack Knight (Washington University), Stephen Macedo (Harvard University), David Schmidtz (Yale University), Lawrence B. Solum (Loyola Marymount University), Michael Walzer (Princeton University), Catherine Valcke (University of Toronto), and Michael P. Zuckert (Carleton College).

PART I
DEMOCRACY AND THE RULE OF LAW

1
DEMOCRACY AND THE RULE OF LAW

JEAN HAMPTON

Prominent Soviet supporters of Boris Yeltsin who defeated the coup of August 1991, when questioned by Western reporters, argued that its defeat vindicated the Soviet people’s commitment to two important ideals: first, the ideal of democracy, and second, the ideal of the “rule of law.” The thesis of this paper is that these two ideals are connected, and that we should understand contemporary democracy as a style of government quite unlike the ancient Greek democracies heavily criticized by early modern political theorists, insofar as it is based on the idea of the rule of law and not, as ancient Greek democracies were, on the rule of human will. Indeed, as I shall explain in what follows, it is because James Madison identified democracy as a species of will-directed human government that he was so concerned to deny that a United States under the Constitution would be an instance of it.

I shall explicate and defend my thesis in part by arguing against Thomas Hobbes’s contention that all political societies must be founded on human will in order properly to be considered political societies. Hobbes maintained that it was logically impossible to have something called a government that was founded on a rule, or set of precepts, put forward in some kind of constitution or contract between the people and the ruler. Ironically, I will argue that implicit in Hobbes’s own contract method is the idea not only that law can be the ultimate governor in a political society but also that the ruling law can and should have what I will call a certain “democratic” content. In a strange way, one might even consider Hobbes the father of modern democracy, although he would have been horrified to have received such a title.

I. THE TRADITIONAL DEFINITION OF DEMOCRACY

Consider Hobbes’s definition of democracy, the main lines of which would be approved by political theorists of ancient Greece and Rome and the Middle Ages:

The difference of Common-wealths, consisteth in the difference of the Soveraign or the Person representative of all and every one of the Multitude. And because the Soveraignty is either in one Man, or in an Assembly of more than one; and into that Assembly either every man hath right to enter, or not every one, but Certain men distinguished from the rest; it is manifest, there can be but Three kinds of Common-wealth. For the Representative must needs be One man, or More: and if more, then it is the Assembly of All, or but of a Part. When the Representative is One man, then is the Common-wealth a MONARCHY: when an Assembly of All that will come together, then it is a DEMOCRACY, or Popular Common-wealth: when an Assembly of a Part onely, then it is called an ARISTOCRACY. Other kind of Common-wealth there can be none: for either One, or More, or All must have the Soveraign Power (which I have shewn to be indivisible) entire.¹

Note that Hobbes’s categorization assumes that political authority is ultimately a human-directed phenomenon: the three kinds of political authority are merely three ways in which human beings can rule over others. Either all of them can rule, or only some of them, or only one of them. And when all of them rule, the resulting government is defined as a democracy. Thus for Hobbes, democracy is a species of government based on human will—and in this case, the human will is constituted by all the people.

Hobbes’s definition of governments in terms of how many humans are doing the ruling is consciously based upon an argument to the effect that there cannot be a nonhuman, rule-based political authority. The best statement of this argument is to be found in De Cive, in the following passage:

It is therefore manifest, that in every city there is some one man, or council, or court, who by right hath as great a power over each single citizen, as each man hath over himself considered out of that civil state; that is, supreme and absolute, to be limited only by the strength and forces of the city itself, and by nothing else in the world. For if his power were limited, that limitation must necessarily proceed from some greater power. For he that prescribes limits, must have a greater power than he who is confined by them. Now that confining power is either without limit, or is again restrained by some other greater than itself; and so we shall at length arrive to a power, which hath no other limit but that which is the terminus ultimus of the forces of all the citizens together. That same is called the supreme command; and if it be committed to a council, a supreme council, but if to one man, the supreme lord of the city.²

This “regress argument” is briefly summarized in a passage in Leviathan:

[W]hosoever thinking Soveraign Power too great, will seek to make it lesse, must subject himselfe, to the Power, that can limit it; that is to say, to a greater.³

The conclusion of this argument is that in a political society there is a single source of power, beyond which no subject can appeal, and which is authorized to decide any question, resolve any dispute, no matter the content, the history, or the parties involved. This single source of power, called the “Sovereign,” must be a kind of human will: either it is a single human will or a collective of human wills acting as one.

But hasn’t Hobbes made an obvious mistake here? Even if we grant that a political society must be a “closed” system, with an ultimate authority, must that ultimate authority be human? Why can’t it also be a constitution or set of laws, as Kelsen or H. L. A. Hart have argued, which acts as the “final decider” in the regime?⁴

In his expansion of the regress argument in Leviathan, Hobbes attempts to show that a final nonhuman decider is impossible. The problems of conflict and disorder that the political society is supposed to cure cannot be cured unless that political society rests on an ultimate and undivided human will. After all, argues Hobbes, in any controversy between human beings, only another human being is in a position to decide it, and to enforce that decision. A rule is inherently powerless; it only takes on life if it is interpreted, applied, and enforced by individuals. That set of human beings that has final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what these rules actually are. So human beings control the rules, and not vice versa. Hence, if we agree with Hobbes that the central reason for having a political society is to resolve conflict, and if we agree with his observation that laws alone are unable to resolve anything because their meaning and their power over us are entirely a function of how they are defined, applied, and enforced, then we must accept the conclusion of the regress argument that only a regime with a final human decider who (either directly or through delegates) defines, applies, and enforces these laws is in a position to effect peace, and thus actually be a political society. And so, to those who propose that a constitution (limiting the power of a ruler) could be the final decider in a regime, Hobbes insists that this is not a viable form of polity because

to be subject to Laws, is to be subject to the Common-wealth, that is to the Soveraign Representative, that is, to himselfe; which is not subjection, but freedom from the Lawes. Which errour, because it setteth the Lawes above the Soveraign, setteth also a Judge above him, and a power to punish him; which is to make a new Soveraign; and again for the same reason a third, to punish the second; and so continually without end, to the Confusion, and Dissolution of the Common-wealth.⁵

Note that Hobbes assumes that a political regime is only in place when one has an authority established that has the potential power to resolve all controversies that could potentially threaten the union. And he argues that laws cannot do this because their nature is such that they are just as able to generate conflict as to resolve it.

In part 2 of Leviathan, Hobbes elaborates on why he regards all laws, no matter their content, as worthless as an ultimate foundation of any political unit. Hobbes’s position on the inefficacy of laws as governors is based on the following three beliefs:

1. Laws can never be rendered so completely clear that it is obvious to every human being what they mean. Hence they can themselves be the source of conflict unless there is a human being authorized to give the definitive interpretation of them. And if such a human being exists, then he is the ultimate authority, and not the laws he interprets, because he has control over them, rather than vice versa.

2. Laws can never be written so that their application to every situation is obvious to every human being. Thus, the question of how they are to be applied can generate controversy, which can only be resolved if a human being is authorized to decide their application in a definitive fashion.

3. Even if it were possible to define laws in a completely clear way, such that their application to any situation would be obvious, Hobbes would still maintain that human nature is such that those who stood to be disadvantaged by their application would be motivated by self-love to insist on defining them in some other, more advantageous way. So laws are often the source of conflict because of the way human nature responds to normative rules that get in the way of self-interest.

Relying on these three assumptions, Hobbes responds to opponents who argue, as Locke was to do later in the century, on behalf of rule-based (and sometimes morally motivated) limits on government power over the people it rules. First, to those who insist that there can and should be a contract between ruler and people, or else some sort of overarching constitution that defines and potentially limits the ruler’s power, Hobbes replies in chapter 18 of Leviathan that this is merely an attempt to establish a set of rules as ultimate deciders in a regime, and is therefore doomed to fail because it does not incorporate into a political regime the kind of solution to the problem that such regimes are supposed to solve, namely, a final decider. Indeed, it not only neglects to incorporate that solution but also contributes to the social problem of disorder by interjecting into the social fabric yet another source of controversy.

Second, to those who want to divide sovereignty—for example, between a king and a parliament, or between a king, a parliament, and a court—Hobbes points out that sovereignty can only be divided via laws or rules setting out the division and the relative jurisdiction of each branch of government. So, argues Hobbes, if someone were to propose that, for example, sovereignty be divided into judicial, executive, and legislative units, he would be advocating, in effect,

not government … not one independent Common-wealth, but three independent Factions; not one Representative Person, but three. In the Kingdome of God, there may be three Persons independent, without breach of unity in God that Reigneth; but where men Reigne, that be subject to a diversity of opinion, it cannot be so.⁶

So if the point of creating a political regime is to create an institution that will resolve all union-threatening controversy in a society, then one simply fails to create such an institution if one sets about to divide sovereignty, because such division must be accomplished by laws that are inevitably conflict generating.

Third and finally, if constitutional laws cannot be the final deciders of a political regime, this is even more true of moral laws. While Hobbes is willing to admit the existence of “laws of nature” that he regards as hypothetical imperatives dictating various forms of peaceful behavior that, when performed in concert with others, will promote peaceful and commodious living, once again he argues that, insofar as those laws are the subject of great controversy, they cannot be the final solution of conflict.

All Laws, written, and unwritten, have need of Interpretation. The unwritten Law of Nature, though it be easy to such, as without partiality, and passion, make use of their naturall reason, and therefore leave the violators thereof without excuse; yet considering there be few, perhaps none, that in some cases are not blinded by self love, or some other passion, it is now become of all Laws the most obscure; and has consequently the greatest need of able Interpreters.⁷

So Hobbes would think it fruitless to try to amend or clarify moral rules intended as fundamental legal rules in a society so as to minimize conflict over how they are to be understood and applied because human nature makes the obvious response to them impossible when self-interest is at stake.

Let me restate Hobbes’s regress argument so that we understand exactly what assumptions about laws and about human nature that argument rests upon:

1. A political institution exists if and only if it has the ability to resolve or forestall all conflict among human beings who interact in a certain territory.

2. An institution, purporting to be political, whose ultimate authority is some set of rules, whether moral rules, rules dividing power among branches of government, or rules limiting the power of political officials, cannot resolve conflict among human beings because these rules will themselves be the source of conflict, and this is because

a) it is virtually impossible to define such rules clearly enough to eliminate all controversies about what they mean;

b) it is virtually impossible to define rules clearly enough to eliminate all controversies about how and when they should be applied;

c) human nature is such that, even if a rule is clear and easy to apply, if its application to one’s own case is disadvantageous, one will strive to argue for a different application, thereby coming into conflict with those who are intent on understanding and applying it properly.

3. A political institution will be able to resolve all conflict only if total power (or sovereignty) is invested in a human will—the will of either one person or a group of persons or all the people.

4. Therefore, only those institutions in which total power is invested in a human will (in any of these three ways) can count as political institutions.

II. WHO SHALL JUDGE?

Hobbes’s argument is best understood as one salvo in a theoretical war waged in many sectors of European life during the seventeenth century concerning what kinds of government are possible. This was a frequent topic of discussion in the pamphlets written by politically interested people, from clergyman to lords, in seventeenth-century England. One pamphlet, written by Philip Hunton, which argued in favor of divided sovereignty, is particularly interesting because of the way it struggles with the issues raised by Hobbes’s regress argument. Hunton maintained that England should divide powers between the king and the Parliament, with the king’s power limited by the latter. However, he was aware that this position was attacked by royalists convinced that it was a recipe for anarchy. If the king is in effect a...