Getting to the Rule of Law

NOMOS L

James E. Fleming

• Éditeur: NYU Press
• Année: 2011
• ISBN:
  9780814728444
• Sujet: Politica e relazioni internazionali
• Sous-sujet: Politica

The rule of law has been celebrated as “an unqualified human good," yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an “inner morality of law,” or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power “outside the law” justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks? In Getting to the Rule of Law a group of contributors from a variety of disciplines address many of the theoretical legal, political, and moral issues raised by such questions and examine practical applications “on the ground” in the United States and around the world. This timely, interdisciplinary volume examines the ideal of the rule of law, questions when, if ever, executive power “outside the law” is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions.

PART I
GETTING TO THE CONCEPT OF THE RULE OF LAW

1
THE RULE OF LAW AND THE IMPORTANCE OF PROCEDURE

JEREMY WALDRON

1. GETTING TO THE RULE OF LAW

The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property to the extent that this can be done without seriously compromising social justice; and we want them to be governed in accordance with the Rule of Law. We want the Rule of Law for new societies—for newly emerging democracies, for example—and old societies alike, for national political communities and regional and international governance, and we want it to extend into all aspects of governments’ dealings with those subject to them—not just in day-to-day criminal law, or commercial law, or administrative law but also in law administered at the margins, in antiterrorism law and in the exercise of power over those who are marginalized, those who can safely be dismissed as outsiders, and those we are tempted just to destroy as (in John Locke’s words) “wild Savage Beasts, with whom men can have no Society or Security.”¹ Getting to the Rule of Law does not just mean paying lip service to the ideal in the ordinary security of a prosperous modern democracy; it means extending the Rule of Law into societies that are not necessarily familiar with it; and in those societies that are familiar with it, it means extending the Rule of Law into these darker corners of governance, as well.

When I pay attention to the calls that are made for the Rule of Law around the world, I am struck by the fact that the features that people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law, such as rule by general norms rather than particular decrees; rule by laws laid down in advance rather than by retrospective enactments; rule under a system of norms that has sufficient stability (is sufficiently resistant to change) so as to furnish for those subject to the norms a calculable basis for running their lives or their businesses; rules by norms that are made public, not hidden away in the closets of bureaucracy; rule by clear and determinate legal norms, norms whose meaning is not so obscure or contestable as to leave those who are subject to them at the mercy of official discretion. These are formal aspects of the Rule of Law, because they concern the form of the norms that are applied to our conduct: generality, prospectivity, stability, publicity, clarity, and so on. But we don’t value them just for formalistic reasons. In F. A. Hayek’s theory of the Rule of Law, we value these features for the contribution they make to predictability, which Hayek thinks is indispensable for liberty.² In Lon Fuller’s theory, we value them also for the way they respect human dignity: “To judge [people’s] actions by unpublished or retrospective laws … is to convey to [them] your indifference to [their] powers of self-determination.”³ (I shall say more about this in section 5.) In Fuller’s theory, too, there is a hunch that if we respect dignity in these formal ways, we will find ourselves more inhibited against more substantive assaults on dignity and justice. That has proved very controversial, but it is further evidence of the point that the interests of those who adopt a formal conception of the Rule of Law are not just formalistic.

I have said that this formal conception is not what ordinary people have in the forefront of their minds when they clamor for the extension of the Rule of Law into settings or modes of governance where it has not been present before. Saying that is usually a prelude to a call for a more substantive vision of the Rule of Law. I am not as hostile as I once was to a substantive conception of this ideal.⁴ I believe that there is a natural overlap between substantive and formal elements, not least because—as we have just seen—the formal elements are usually argued for on substantive grounds of dignity and liberty. I still believe that it is important not to let our enthusiasm for a substantive conception—whereby the Rule of Law is treated as an ideal that calls directly for an end to human rights abuses or as an ideal that calls directly for free markets and respect for private property rights—obscure the independent importance that the formal elements I have mentioned would have even if these other considerations were not so directly at stake.⁵ But it is probably a mistake to exaggerate the distinctiveness of our several political ideals or the clarity of the boundaries between them.

Still, it is not a substantive conception that I have in mind when I say that ordinary people are urging something other than the formal elements that I have mentioned when they clamor for the Rule of Law. Instead, I have in mind elements of legal procedure and the institutions, like courts, that embody them. When people clamored recently in Pakistan for a restoration of the Rule of Law, their concern was for the independence of the judiciary and the attempt by an unelected administration to fire a whole slew of judges.⁶ When people clamor for the Rule of Law in China, they are demanding impartial tribunals that can adjudicate their claims. And when advocates for the detainees in the American base at Guantanamo Bay clamor for the Rule of Law, they are clamoring for hearings on their clients’ comprehensive loss of liberty in which they or their clients would have an opportunity to put their case, confront and examine the evidence against them, such as it is, and make arguments for their freedom, in accordance with what we would say were normal legal procedures.⁷

2. LAUNDRY LISTS

What sort of procedural principles do I have in mind? Theorists of the Rule of Law are fond of producing laundry lists of demands. The best known are the eight formal principles of Lon Fuller’s “inner morality of law”:⁸

1. Generality;

2. Publicity;

3. Prospectivity;

4. Intelligibility;

5. Consistency;

6. Practicability;

7. Stability; and

8. Congruence.

I think we need to match this list with a list of procedural characteristics that are equally indispensable. As a preliminary sketch,⁹ we might say that no one should have any penalty, stigma, or serious loss imposed upon him by government except as the upshot of procedures that involve:

A. A hearing by an impartial tribunal that is required to act on the basis of evidence and argument presented formally before it in relation to legal norms that govern the imposition of penalty, stigma, loss, and so forth;

B. A legally trained judicial officer, whose independence of other agencies of government is ensured;

C. A right to representation by counsel and to the time and opportunity required to prepare a case;

D. A right to be present at all critical stages of the proceeding;

E. A right to confront witnesses against the detainee;

F. A right to an assurance that the evidence presented by the government has been gathered in a properly supervised way;

G. A right to present evidence in one’s own behalf;

H. A right to make legal argument about the bearing of the evidence and about the bearing of the various legal norms relevant to the case;

I. A right to hear reasons from the tribunal when it reaches its decision that are responsive to the evidence and arguments presented before it; and

J. Some right of appeal to a higher tribunal of a similar character.

These requirements are often associated with terms such as “natural justice,”¹⁰ and as such they are important parts of the Rule of Law. I believe we radically sell short the idea of the Rule of Law if we understand it to comprise a list like Fuller’s list (1)–(8) without also including something like the procedural list (A)–(J) that I have just set out. We say the Rule of Law is violated when due attention is not paid to these procedural matters or when the institutions that are supposed to embody these procedures are undermined or interfered with. Equally, I think we misrepresent the debate about whether the Rule of Law has also a substantive dimension if we do not contrast a possible list of substantive items—such as:

(α) Respect for private property;

(β) Prohibitions on torture and brutality;

(γ) A presumption of liberty; and

(δ) Democratic enfranchisement

—with both of the lists I have set out (the formal list and the procedural list), rather than with the formal list by itself.

3. FORM AND PROCEDURE IN THE WORK OF HAYEK, FULLER, AND DICEY

It is remarkable how little attention is paid to demands of this procedural kind—demands like (A)–(J)—in the literature in academic legal and political philosophy devoted specifically to discussion of the Rule of Law.

The key chapter in F. A. Hayek’s book, The Constitution of Liberty—the chapter titled “Laws, Commands, and Order”—makes no mention whatever of courts or legal procedures; it is wholly concerned with the relation between formal characteristics like abstraction and generality and individual freedom.¹¹ Later chapters in that book do talk a little about courts but hardly ever about their procedures.¹² The same is true of Hayek’s later work on the Rule of Law, in his trilogy Law, Legislation and Liberty. Hayek talks a lot about the role of judges in chapter 5 of the first volume of that work. But it is all about the role of judges in generating norms of the appropriate form, rather than about the procedures that characterize courtrooms.¹³

The case of Lon Fuller is even more instructive. Fuller calls his internal morality of law—comprising (1) generality, (2) publicity, (3) prospectivity, and so on—“procedural,” but what he seems to mean is that it is not substantive. Fuller says this:

As a convenient (though not wholly satisfactory) way of describing the distinction … we may speak of a procedural, as distinguished from a substantive natural law. What I have called the internal morality of law is in this sense a procedural version of natural law, though to avoid misunderstanding the word “procedural” should be assigned a special and expanded sense so that it would include, for example, a substantive accord between official action and enacted law. The term “procedural” is, however, broadly appropriate as indicating that we are concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be.¹⁴

In fact, substantive can be contrasted either with procedural or with formal; the two contrasts are quite different, and patently what Fuller has in mind is what we should call a formal/substantive contrast.¹⁵ The features of his internal morality of law all relate to the form that legal norms take, not to either the procedure of their enactment or (more important) the procedural mode of their administration. Among his eight desiderata, only one comes close to being procedural (in the sense I am distinguishing from formal), namely the requirement of congruence between official action and law on the books—yet that is the one for which he says (in the passage quoted) “the word ‘procedural’ should be assigned a special and expanded sense”!

The point is that there is very little about due process or courtroom procedure in Fuller’s account of law’s internal morality in chapters 2 and 3 of The Morality of Law.¹⁶ Much the same is true of Fuller in his earlier response to H. L. A. Hart’s Holmes Lecture.¹⁷ There, too, Fuller focuses on what we should call formal characteristics of law—generality, publicity, consistency, and so on—and his argument that they are prophylactics against injustice is based on an incompatibility between evil ends and law’s forms.

[C]oherence and goodness have more affinity than coherence and evil. Accepting this belief, I also believe that when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness, by whatever standards of ultimate goodness there are.… [E]ven in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law.¹⁸

The whole of his discussion along these lines, and the whole of his excoriation of Nazi “legality,” has to do with legislative form, not judicial procedure. That is the ground on which Fuller makes what we would call his “Rule of Law” argument.

I do not mean that Fuller was uninterested in procedure. Towards the end of chapter 4 of The Morality of Law, there is some consideration about whether the internal morality of law applies to the processes by which allocative decisions are made by government agencies in a mixed economy. Fuller says we face problems of institutional design “unprecedented in scope and importance.”

It is inevitable that the legal profession will play a large role in solving these problems. The great danger is that we will unthinkingly carry over to new conditions traditional institutions and procedures that have already demonstrated their faults of design. As lawyers we have a natural inclination to “judicialize” every function of government. Adjudication is a process with which we are familiar and which enables us to show to advantage our special talents. Yet we must face the plain truth that adjudication is an ineffective instrument for economic management and for governmental participation in the allocation of economic resources.¹⁹

This seems to indicate an interest in procedural as well as formal aspects of the Rule of Law (and...