The Rule of Law Under Fire?

Raymond Wacks

• Editorial: Hart Publishing
• Año: 2021
• ISBN:
  9781509950591
• Edición: 1
• Categoría: Jura
• Categoría: Öffentliches Recht

Does the rise of populism, authoritarianism, and nationalism threaten the welfare of the rule of law? Is this fundamental democratic ideal under siege? In this timely and important book, Raymond Wacks examines the philosophical roots of the rule of law and its modern, often contentious, interpretation. He then investigates 16 potential ideological, economic, legal, and institutional dangers to the rule of law. They range from the exercise of judicial and administrative discretion and parliamentary sovereignty, to the growth of globalisation, the 'war on terror', and the disquieting power of Big Tech. He also considers the enactment and enforcement in several countries of Draconian measures to curtail the spread of COVID-19, which has generated fears that these emergency powers may outlive the pandemic and become a permanent feature of the legal landscape, thereby impairing the rule of law. Wacks identifies which issues among this extensive array pose genuine risks to the rule of law, and suggests how they might be confronted to ensure its defence and preservation.

PART ONE

Dissecting the Rule of Law

The four chapters that follow introduce the subject by first sketching, in chapter one, some of the most conspicuous hazards to the rule of law which are more closely considered in Part Two. Chapter two describes the philosophical antecedents of modern notions of the ideal. Chapter three considers the leading legal theories, while chapter four pursues a quest for greater coherence and clarity.

1

Introduction

Little speaks more eloquently of the power of a concept than lamentations of its looming demise. While sounding its death knell is doubtless premature, recent developments have provoked genuine anxiety about the wellbeing of the rule of law. In all probability, these threats will, by the time these words reach the page, be overshadowed by others that arouse similar unease about the future of this fundamental element of democratic government. For the moment, at least four concerns have been identified as posing a danger to its welfare.

The first is the disquieting impact on civil liberties of the often-Draconian measures imposed by governments in their attempt to stem the COVID-19 contagion. Second is the eccentrically defiant attitude of the disgraced former President Trump toward the exercise of his constitutional and legal authority. Third is the growing unease about the rise of nationalism and populism, especially in certain Eastern European countries. A fourth siren has been sounded in respect of what is widely perceived as a ruthless crackdown by China on the freedoms formerly enjoyed by the residents of Hong Kong. Each of these matters – and several others – are among the apprehensions expressed about the health of the rule of law discussed in Part Two.

It requires little insight to observe the tectonic shifts in the legal practices and processes that underlie contemporary systems of government. The seminal philosophies of liberal democracy assume an association between a market economy and the stability and predictability of a formal or procedural conception of the rule of law. Yet conventional capitalism is barely recognisable in our current globalist marketplace, manipulated – and often seemingly managed – by Big Tech. This transformation has a significant effect on the rule of law and the extent to which it continues to act as a check on arbitrary or excessive executive power. The impact of this and numerous other changes in our new world order are explored in Part Two.

I must begin, however, with an important preliminary conundrum. That there is considerable incoherence surrounding the concept ‘rule of law’ is no surprise and it is hoped that the following pages may assist in clarifying this elusive ideal. In the absence of accord regarding the subject matter of our discourse, any analysis of its nature, positive or negative, is likely to be murky and muddled.¹ And this problem is compounded by the sin of petitio principii. To characterise the above four developments as signs of the decay of the rule of law presumes a meaning of a term which has yet to be determined. This transgression is, I fear, fairly commonplace. Nor is it confined to sensationalist reports by the media. Scholarly literature is not immune to the condition; writers engage in learned disquisitions on the question with no clear or fixed conception of the expression, seemingly indifferent to their obligation to provide one. It matters not whether they celebrate or condemn the notion. Without a shared understanding of the core features of the rule of law, the very title of this book invites the same reproof.

Unless a concept is sufficiently distinctive to facilitate coherent analytical identification and description, the prospects for its satisfactory recognition and application are unlikely to be good. Such problems are not, of course, peculiar to the notion of ‘rule of law’. ‘Freedom’, ‘security’, ‘liberty’, ‘privacy’² and other interests, values and rights are, to a greater or lesser extent, vulnerable to similar criticism. But unless it is to be argued that subscribing to generalised principles exhibits our commitment to them, it seems perverse not to attempt to refine the nature and scope of the problem, especially if this might actually engender more effective protection.

Claims about the desirability of the rule of law occasionally confuse its instrumental and its inherent value; the rule of law is viewed by some as an end in itself, while others perceive it as instrumental in the securing of social ends such as liberalism or democracy. Another difficulty is that there is evidence of confusion between descriptive and normative accounts. These and other related theoretical problems will be considered in detail in chapter three where I suggest how we might find a more rational, direct and effective method of seeking to address the central questions of the rule of law and avoid the conceptual confusion that may impair its durability. We surely require a lucid or consistent meaning of this fundamental value.

It seems that when we cherish a particular ideal there is an irresistible temptation to expand it almost to breaking point, or to load it with freight that it can barely support. I continue this quest for clarity and consistency in chapter four. By expanding the ideal of the rule of law, the values together which it is lumped are weakened through the loss of their independent potency. To take only one prominent example, Ronald Dworkin adopts what he styles a ‘rights’ notion of the rule of law in contrast to the ‘rule book’ conception. His account proposes ‘the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule book conception does, between the rule of law and substantive justice; on the contrary it requires, as a part of the ideal of law, that the rules in the rule book capture and enforce moral rights’.³ I consider the problems with such an approach in chapter four, where I argue for a thin, rather formal conception that is confined to the role of the rule of law in both constraining governmental power and ensuring that all are subject to the law. This has the merit, as I hope to show, of both circumventing this linguistic enigma and strengthening the rule of law itself.

A similar difficulty attends my survey in chapter two of the philosophical genesis of the rule of law. Again, I shall advance a neutral or procedural version of the concept which I believe offers a superior basis for its survival and prognosis. Or might it be beyond redemption?

[T]he phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.⁴

This author then proceeds to expend a fair ration of her intellectual energy on the subject which is, of course, not confined to the utterances of Anglo-American politicians, lawyers and legal philosophers.⁵

The question of the application of the rule of law internationally raises a number of searching questions. There is, of course, an essential distinction between the nature and function of the rule of law within a state and its putative role in protecting states themselves. Whether the same standards that are generally associated with the rule of law (predictability, prospectivity, clarity and so on) are appropriate in the international context is moot but lie outside the task I have set myself in this book.⁶

Any answer to the question of the resilience and endurance of the rule of law requires a fairly comprehensive exploration of its past, present and future. This undertaking begins in the following chapter.

¹See J Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137.

²My own disquiet springs not merely from terminological or linguistic imprecision, but also from the promiscuous application of ‘privacy’, especially in the United States, to a varied assortment of issues that range from abortion, contraception and sexual preference to noise and pornography. For more than four decades, I have contended that we ought to avoid the various conceptual and doctrinal ambiguities of ‘privacy’ by recognising that the protection of ‘personal information’ is at its heart. The language in the text echoes, mutatis mutandis, the misgivings I expressed in R Wacks, Privacy and Media Freedom (Oxford, Oxford University Press, 2013). See too R Wacks ‘The Poverty of “Privacy”’ (1980) 96 LQR 73; R Wacks, Personal Information: Privacy and the Law (Oxford, Clarendon Press, 1989); A Monti and R Wacks, Protecting Personal Information: The Right to Privacy Reconsidered (Oxford, Hart Publishing, 2019).

³R Dworkin, ‘Political Judges and the Rule of Law’ (1978) 64 Proceedings of the British Academy 259, 262, quoted in BZT Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, Cambridge University Press, 2004) 102.

⁴J Shklar, ‘Political Theory and the Rule of Law’ in A Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Toronto, Carswell, 1987) 1. She does, however, acknowledge that, from an historical point of view, the concept had ‘a very significant place in the vocabulary of political theory once, so important that it is worth recalling’. Ibid.

⁵‘Legal philosophers led the way by reviving the rule of law as an abstract and therefore potentially universal but highly contestable concept’, M Loughlin, ‘The Apotheosis of the Rule of Law’ (2018) 89 The Political Quarterly 659, 665.

⁶See J Crawford, ‘The Rule of Law in International Law’ (2003) 24 Adelaide Law Review 3; S Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331; J Waldron, ‘Are Sovereigns Entitled to the Benefit of the Rule of Law?’ (2011) 22 European Journal of International Law 315.

2

Philosophical Foundations

The incoherence of the ‘rule of law’ was touched on in the previous chapter. The same question-begging difficulty arises here. In order to canvass early expressions of the ideal or values that are the sources of our contemporary notion of the rule of law, I must perforce presume a meaning of ‘rule of law’ which is yet to be decided. Again, I shall adopt a formal conception whose key elements are the restraining of executive power and ensuring that all are subject to the same law. As will become clear, even this neutral prototype inexorably infiltrates the defence of liberty, justice and democracy. The simplest option is to offer this outline of the theoretical foundations of the rule of law which stretch back to Plato and Aristotle and leave it to the reader to discern and identify the traces of these philosophical antecedents in its modern conceptions or counterparts.

Aristotle and Plato

Any pursuit of the source of the concept of the rule of law finds its germ in the ideas of Aristotle. Despite his (and Plato’s) apprehensions about the consequences of popular democracy, he recognised the centrality of law in the attainment of a just order. At the heart of his philosophy is the significance of justice, virtue and reason. In Nicomachean Ethics,¹ he examines the moral and political virtue of justice. And in Politics,² he considers the relationship between political justice and equality. Following Plato, he conceives the ethical virtues (including justice, temperance and courage) as rational, emotional and social skills. If we are to live well, we must grasp how values such as friendship, pleasure, virtue, wealth and honour form a coherent whole. We may then cultivate the practical wisdom to behave in the most rational way.

Fundamental to the notion of virtue is the quest for the ‘Golden Mean’. If justice is a virtue, he maintains, it must be a kind of mean: a halfway point between two extremes, one of excess and the other of deficiency. So, for example, the virtue of courage – if present in excess – becomes recklessness; and if deficient, it assumes the form of cowardice. Our lives abound with moral dilemmas. But no single rule exists that we can apply to them all. This is the essential meaning of the ‘doctrine of the mean’.

Aristotle emphasises the significance of both character and virtue. Character is a state of being. A kind person has the right feelings toward others. But character, or inner temperament, also prescribes conduct. His approach is founded on...