Rule of Law PDF

Rule of Law Rule of Law Martin Krygier The Oxford Handbook of Comparative Constitutional Law Edited by Michel Rosenfeld and András Sajó Print Publication Date: May 2012 Subject: Law, Comparative Law, Constitutional and Administrative Law Online Publication Date: Nov 201...

Rule of Law Rule of Law Martin Krygier The Oxford Handbook of Comparative Constitutional Law Edited by Michel Rosenfeld and András Sajó Print Publication Date: May 2012 Subject: Law, Comparative Law, Constitutional and Administrative Law Online Publication Date: Nov 2012 DOI: 10.1093/oxfordhb/9780199578610.013.0012 Abstract and Keywords This article explores the theory of rule of law. It asks the question: What else is required if it is not enough for the rule of law that law should rule. Conventional accounts usually start with so-called ‘anatomical’ characterizations of the rule of law. That is to say, they stipulate elements of legal institutions, rules, and practices, and sometimes achieve­ ments, that are seen as adding up to the rule of law. Such accounts are contrasted with an expressly ‘teleological’ approach, which starts with reflection on immanent purposes and values of the rule of law, what it is for, and only then moves to spell out how such ends might be attained. That spelling out is likely to be more variable in content, and re­ fer to many things besides legal institutions, than are familiar rule of law anatomies. It all depends on what is needed in particular places and times which themselves vary, to achieve the ends of the rule of law. The discussion here begins with some influential anatomies, and moves on to teleology. Keywords: rule of law, anatomies, teleology, institutions, rules, practices I. Introduction 233 II. Anatomies of the Rule of Law 235 1. Institutions 235 2. Rules 237 3. Procedures 239 III. What's the Point? 240 IV. Negative or Positive? 242 V. The Administrative State 246 VI. Contexts and Conclusions 247 Page 1 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law I. Introduction Rule of law is one of a number of overlapping ideas, including constitutionalism, due process, legality, justice, and sovereignty, that make claims for the proper character and role of law in well-ordered states and societies. Among these, ‘rule of law’ has in recent times come into its own. It is lauded by international agencies, pressed upon conflictual, post-conflict, and ‘transitional’ societies, and of course talked up by politicians and lawyers, particularly judges, all over the world. It is examined in political theory and ju­ risprudence, and also, though less often, has been subjected to sociological investigation. It used to be much criticized by Marxists and others on the Left, including by members of the Critical Legal Studies movement, but these criticisms are less audible today. Beneficiary of such praise, called upon for so many purposes, examined in so many ways, deployed in so many domains, not only its virtues but also its meaning tend to swell in the telling. So underlabour needs to be done to clarify the concept, even though no amount of effort will clear away all doubts and differences among those who employ it. We can start with the phrase itself. Is it necessary for the rule of law that law rule? Is it sufficient? Starting with necessity, it would be an odd rule of law without law. And so, one way a so­ ciety could lack the rule of law is for its rule to be by means other than legal ones. In such a society, and of course I exaggerate to make the point, law would not be engaged in the exercise of (p. 234) power, which takes place without legal authorization, excuse, or form. This is the thought that underlies the old distinction between limited, even if authoritari­ an, government and tyranny. Thus Montesquieu, late in a long tradition, distinguished be­ tween monarchies, ‘in which one alone governs, but by fixed and established laws’, and ‘despotic government [in which] one alone, without law and without rule, draws every­ thing along by his will and his caprices’.1 He favoured the former. At the other extreme are societies where no one rules but many fight. Such is Hobbes's ‘state of nature’, ‘solitary, poore, nasty, brutish and short’. Life in John Locke's natural state is less brutish, less solitary, and perhaps longer, but still inhabitants are minded to leave it, because First, there wants an establish’d, settled, known Law … Secondly, … there wants a known and indifferent Judge, with Authority to determine all differences accord­ ing to the established Law [and] Thirdly, … there often wants Power to back and support the Sentence when right, and to give it due Execution.2 Remedy those three defects, and you have moved some way toward the rule of law. Simi­ lar reasoning applies to the anarchic ‘failed states’ common in the contemporary world. Again, and obviously, law does not rule in a failed state. As to rule: whatever the character of the laws themselves and the will of political authori­ ties to abide by and apply them, if law in a particular society is routinely trumped by, say, raw legally unauthorized exercise of power by gangsters, conmen, or more generally legally unauthorized power-wielders, it makes little sense to speak of the rule of law. Sim­ Page 2 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law ilarly, the political authority might speak through law and act within it, but no one listens because other authorities drown out what it says or make its pronouncements irrelevant to, or powerless against, ways life is lived and expected to be lived. Then it is not the law that rules, and so not the rule of law. Thus, as long as we adopt a sufficiently flexible notion of ‘rule’, a necessary condition of the rule of law is that law must rule. Flexibility is important since, contrary to lawyers’ conceits, law never rules in anything other than a socially mediated fashion.3 This affects the character and extent of law's rule, and not always in ways that lawyers find easy to imagine. Law is no unmoved mover, self-starting and brooking no attenuation or modifica­ tion or interpretation, on the way to those whom it seeks to rule. Even at its most ruly, which is in any case always a matter of degree, the rule of law is a qualified and variable thing, depending for its effectiveness on many social, legal, and political forces and agen­ cies being ‘in sync’. Whatever the case with necessity, however, the mere existence and use of law are by themselves not sufficient for the rule of law. Common in the literature is a distinction be­ tween rule of and rule by law. In the second phrase, political power is exercised by legal means but key elements of the rule of law are lacking, two in particular. One is that gov­ ernments not merely rule by law but are reliably and effectively constrained by it as well. In many states, law has been a very useful vehicle4 (and at times equally useful camou­ flage) for authoritarian exercise of power. Where this is so, though rule might be by, it is not of law. Again, it must be stressed, we speak of differences of degree, not categorical distinctions of kind. (p. 235) Of course, this is always partly so. Much law serves as an instrument for the achievement of governmental administrative and regulatory goals in every modern state. Today's governments are not sporting umpires, simply enforcing inherited and rarely changing rules of a game made elsewhere and elsewhen. They are active in pursuing their own purposes, and make laws to serve them. However, where the state is framed and constrained by effective and independent legal institutions, professions, and tradi­ tions, and typically these days written, effectively binding and relatively fixed constitu­ tions, we are a world away from a polity, such as the former Soviet Union, where regular legal constraint on the power of the Communist Party was for long periods not merely non-existent but unthinkable. Indeed, it was illegal given the ‘leading role’ constitutional­ ly accorded the Party. So even though this polity was not lawless, since there was plenty of law about, its legal subordination to a supra-legal authority vitiated the feature that makes the rule of law distinctive and precious: constraint by law on the ways in which power can be exercised. Secondly, though governments may rule by what they call law, this law might fail in some respects to be of a character that warrants use of the phrase, ‘rule of law’. If the laws are secret, retrospective, contradictory, impossible to know, to understand, to perform, it has often been said, as we will see, they do not add up to the rule of law. Nor would they even if the government obeyed them. Page 3 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law If it is not enough for the rule of law that law should rule, what else is required? Conven­ tional accounts usually start with what I have elsewhere called ‘anatomical’5 characterizations of the rule of law. That is to say, they stipulate elements of legal institu­ tions, rules, and practices, and sometimes achievements, that are seen as adding up to the rule of law. I contrast such accounts with an expressly ‘teleological’ approach, which starts with reflection on immanent purposes and values of the rule of law, what it is for, and only then moves to spell out how such ends might be attained. That spelling out is likely to be more variable in content, and refer to many things besides legal institutions, than are familiar rule of law anatomies. All depends on what is needed in particular places and times which themselves vary, to achieve the ends of the rule of law. I begin here with some influential anatomies, and move on to teleology. II. Anatomies of the Rule of Law 1. Institutions Some writers, particularly lawyers, see the rule of law as inhering in particular features of legal institutions. Those who believe they have the rule of law often identify it with their own institutions; emulation is recommended for those benighted enough to lack them and envious enough of the rule of law to want them. The most influential account in English, that of the constitutional theorist Albert Dicey, is of the first sort; contemporary experiments in ‘transitional’ societies are often of the second kind. According to Dicey, the rule of law depends on three characteristics of English law, lack­ ing elsewhere. The first is a system of government which excludes ‘the exercise by per­ sons in authority of wide, arbitrary, or discretionary powers of constraint’.6 The second is universal subjection to ‘the ordinary law of the realm and amenable to the jurisdiction of the ordinary (p. 236) tribunals’.7 The third is a system whereby the ‘general principles of the constitution’ are developed as the result of judicial decisions determining the rights of private persons in particu­ lar cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to re­ sult, from the general principles of the constitution.8 Each of these elements has a sting in its tail. Opposition to ‘wide, arbitrary, or discre­ tionary’ powers implies that each adjective identifies dangers of the same order to the rule of law. However, whether wide or discretionary powers are incompatible with the rule of law depends on whether they inevitably bear some defect inconsistent with it; the most likely conjecture being that they allow or even promote arbitrariness. But must they? It is obvious that they could, if the powers were so wide that power-holders could do anything they wished in any way they chose, or discretion so untrammelled that, again, power was quite unconstrained and its manner of exercise able to be capricious and unpredictable. Dictatorships often frame their laws in such ways, and some imagined Page 4 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law slippery slope in this direction appears to have underlain the fear of many opponents, among them Dicey, of the welfare state's expansion of governmental powers and discre­ tions. However, it is not self-evident that discretion is of its nature illimitable or width un­ frameable, or either unreviewable or unaccountable.9 Width and discretion might indeed be necessary for flexibility in many circumstances of governance, and for many legitimate ends. If they can be effectively framed and subjected to principles and to review, must one assume that they will involve arbitrariness,10 which is the real foe of the rule of law? Eliding them all, however, does make it easier to oppose an active state. Secondly, the notion that the rule of law depends on subjection of all to ‘the ordinary law … [and] tribunals’ rules out both continental public law and a great deal of public law in the Anglosphere as well. That is to rule out very many countries of the developed world. Finally, it appears from Dicey that the rule of law is only consistent with ‘common law constitutionalism’, as it bubbles up from court decisions and not with a constitution de­ rived from ‘general principles’, perhaps as set out in a written constitutional document. It is not clear that this accurately describes even the English Constitution of Dicey's time.11 It certainly makes the rule of law rather a rare commodity today, rarer than is commonly imagined. Many people, after all, believe traces of it might be found even outside New Zealand, Israel, and pre-EU Britain, exemplary though these countries’ unwritten consti­ tutions might be. So if the concept of the rule of law is to lend itself to comparative use, rather than just to identify a peculiar even if apparently blessed eccentricity, Dicey will not be of much help. The point is larger than one thinker. Institutions are products of particular histories and circumstances; the more detailed their specification, the more particular such products are likely to be. They often travel poorly. A lot that matters about the ways they work where they have grown—conventions, inherited understandings, shared but tacit knowl­ edge among initiates and inheritors of local tradition—are not always easily identified, let alone packaged and (p. 237) shipped. They are easily overlooked and left behind. And a lot that matters where the institutions land is strange too, and not always supportive. To the extent that the rule of law is identified with just one way of doing things, therefore, it is unlikely to move very far or very well. If it does travel it will change, unless the indige­ nous recipients of its beneficence are overwhelmed or destroyed in the process, which, of course, has happened. That does not mean that the rule of law can only exist where it was born, however. For conceived as an ideal or cluster of ideals rather than a specific arrangement of particular institutions, routes to the rule of law might vary, without that rendering it unapproachable. 2. Rules Legal philosophers tend to focus on more abstract features of legal orders than did Dicey. Particularly prominent have been certain formal characteristics of legal rules, which H.L.A. Hart called ‘principles of legality’,12 and Lon Fuller describes as the ‘internal morality of law’.13 These features of the character of laws, rather than the substantive Page 5 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law content of law are often equated with the rule of law. Fuller famously listed eight of them and others have further elaborated that list.14 According to Fuller, the internal morality of law requires that it be expressed in general rules, rather than simply ad hoc pronounce­ ments; publicly available to affected parties; prospective not retrospective; comprehensi­ ble; not contradictory; not requiring the impossible; not so changeable that they cannot provide guides to action; be administered in ways that conform to their terms. No legal system achieves perfection in any of these dimensions, nor is perfection a salutary ideal for a practical art. All depends on degree, and overachievement is not necessarily superi­ or achievement. However, a ‘legal’ system that does systematically poorly in any of these ways suffers degradation and degeneration in the character of its institutions and its out­ put. The integrity of legal forms, captured in these eight ‘principles of craftsmanship’, ac­ cording to Fuller, is denied by such laws, and with that denial, in extreme forms, so too the moral ground for obeying them. This, Fuller insists, is true quite apart from the sub­ stantive goals governments seek to achieve. Two apparently simple assumptions underlie this and similar sorts of catalogue. One is that the rule of law, which involves law being a source of guidance to its subjects, de­ pends upon people being able to know the law that applies to them when they are choos­ ing how to act. The second is that these principles are necessary for people to be able to do so. Even if you accept these assumptions, what follows from them? Legal positivist critics of Fuller accept the list and the assumptions but deny that there is anything intrinsically moral about his internal ‘morality’. They are, they say, just princi­ ples of efficacy, necessary for the law to serve any purpose, but open equally to moral and immoral uses.15 Though common, this is an odd argument. Tyrants often have good rea­ son to conceal what they do from, among others, those to whom they do it. Their purposes may not rely on subjects’ ability to know the provisions of the law, understand precisely what it prohibits and permits, plan their lives according to it, still less know what to do to avoid its sanctions or (p. 238) object to abuses of it. It might be enough that they are terri­ fied, knowing that whatever is done to them cannot be resisted, or that rulers have maxi­ mum flexibility and/or subjects maximum uncertainty. Evil regimes rarely will have rea­ son to use laws that embody law's internal morality, at least when they do their worst.16 Conversely, denial of Fuller's principles, often systematic, can help them to attain their purposes, and they have not been unaware of it.17 Nor was Fuller. This is a dramatic example of a more general point. Fuller insists on a distinction be­ tween ‘managerial direction’, a ‘one-way projection of authority, originating with govern­ ment and imposing itself upon the citizen’,18 and law properly so called, which depends upon interaction between law-giver and citizen. The manager wants jobs done at least cost to best effect; efficacy refers to the degree of success in achieving managerial goals. Elements of institutional character are subservient to such goals, and are therefore con­ tingent; appropriate to, and only to, the extent to which they help in the achievement of centrally directed goals. If it would help achievement of such goals to keep things quiet, allow unfettered discretion to decision-makers, or change rules rapidly, there is no intrin­ sic managerial reason to object. Interaction has a different logic. For law to provide a reli­ Page 6 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law able basis for reciprocal (not to mention mutually respectful) interaction between law-giv­ er and legal subject, the trade for their obedience must be that the latter are able to pre­ dict and rely upon the routine ways in which power is exercised. Unlike managerial direc­ tion, interaction requires substantial adherence to the internal morality of law as a mat­ ter of principle, Fuller believes, not merely contingent and revisable practice. And finally, this distinction between ways in which governments treat citizens in turn rests upon a less instrumental, more deontological, moral claim. It has to do with what Fuller calls ‘the view of man implicit in legal morality’.19 Here again the objection to devi­ ation from the internal morality has in the first instance not to do with the external sub­ stantive purposes that might be pursued. Rather it concerns whether one treats persons with respect: Every departure from the principles of the law's inner morality is an affront to man's dignity as a responsible agent. To judge his actions by unpublished or retro­ spective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination.20 ‘Indifference’ is a good word to use here, since it can span both intentional oppression or repression and well-meaning authoritarian direction. Even where the former is absent, there is a lot of the latter in modern societies, even those governed with the best of inten­ tions and with a large measure of the rule of law. But there are also many elements that affirm and reaffirm human dignity: a high degree of the internal morality of law, defences in criminal law, provisions concerned with due process, publicity, rights, including rights of appeal, and so on.21 These features are not all captured, however, by this list of formal features of the rules. They inhere in legal procedures characteristic of the rule of law. We move to these now. (p. 239) 3. Procedures One reason why analytical legal philosophers commonly adopt such a thin and formal ac­ count of the rule of law as the preceding, is the fear that loading wide-ranging substan­ tive ideals into the concept melts it into everything else we might like, and renders a sep­ arate and distinct concept otiose. As Raz expresses the point, if the rule of law is the rule of good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph.22 That seems to me a serious reason to be cautious about overly thickened substantive con­ ceptions of it. However, there is arguably an important point between ‘thin’, purely for­ mal accounts of the rule of law and those so ‘thick’ that they simply equate it with the good, the attainment of human rights, or the doing of justice.23 That point has to do with values specifically associated with the operations of law. As we have seen, there are al­ ready values that underpin the selection of Fuller's eight characteristics of legal rules. Page 7 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law But these are not the only values peculiarly (though not exclusively) relevant to legal or­ ders. Accounts of the rule of law of the Fullerian sort concentrate primarily on the centrifugal force of law, on the formal qualities of the messages legal institutions send out to citizens. However, law also draws citizens in, whether it is police picking them up on the street and delivering them to gaol, or when they come in to courts and other official institutions to do combat with other citizens or with the state. How the law treats them at such points, where other means of resolving differences have not prevailed and the stakes are therefore often high, is a particular concern of many legal traditions. Whereas Dicey had a lot to say about relationships between this key aspect of law and the rule of law, legal philosophical treatments of the rule of law are rather light on in this re­ spect. And yet, as Jeremy Waldron stresses, when ordinary citizens think of the rule of law, they are more likely to have this in mind than the formal quality of legal rules.24 And in relation to this, as Neil MacCormick also emphasizes, ‘law is an argumentative disci­ pline’25 and that is not through accident or misadventure. Nor is the argument left un­ structured by the law. People with legal interests at stake need to be able to speak for those interests, whether they accuse or are accused. This requires a good deal of provi­ sion from legal orders, by way of procedures that require impartial third party hearings, defences, ability to speak, examine witnesses, present evidence, see evidence relied upon by the other side, and so on. As Waldron emphasizes: Argumentation (about what this or that provision means, or what the effect is of this array of precedents) is business as usual in law. We would be uneasy about counting a system that did not exhibit it and make routine provision for it as a le­ gal system. … Courts, hearings and arguments—those aspects of law are not op­ tional extras; they are integral parts of how law works; and they are indispensable to the package of law's respect for human agency. To say that we should value as­ pects of governance that promote the clarity and determinacy of rules for the sake of individual freedom, but not the opportunities for argumentation that a free and self-possessed individual is likely to demand, is to slice in half, to truncate, what the (p. 240) Rule of Law rests upon: respect for the freedom and dignity of each person as an active intelligence.26 Respect for freedom and dignity are good things in general, of course, and there are many ways to manifest and deny them that have nothing to do with law. However, given that law is, in Fuller's words, an ‘enterprise of subjecting human conduct to the gover­ nance of rules’,27 that enterprise is liable to impinge directly and even dramatically on these values. It is no accident, then, as Waldron stresses, that they are: in a deep and important sense associated foundationally with the idea of a legal system—that law is a mode of governing people that treats them with respect, as though they had a view of their own to present on the application of a given norm to their conduct or situation. Applying a norm to a human individual is not like de­ ciding what to do about a rabid animal or a dilapidated house. It involves paying Page 8 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law attention to a point of view and respecting the personality of the entity one is deal­ ing.28 Both the unpredictability or unreliability of the exercise of power, and the inability to challenge it, are obnoxious for several of the same reasons as having one's own perspec­ tive silenced or ignored. For the rule of law is sought in opposition to arbitrariness, and that can come in many guises. III. What's the Point? According to Max Weber, ‘Sociologically, the state cannot be defined in terms of its ends. … Ultimately, one can define the modern state sociologically only in terms of the specific means peculiar to it, as to every political association, namely, the use of physical force.’29 Is Weber's general point applicable to the rule of law? Certainly, there has long been dis­ pute between natural lawyers and legal positivists over whether the concept of law itself is to be understood in this way or rather is ‘a concept like hospital rather than a concept like state (in Weber's sense)’,30 one that necessarily incorporates some reference to what it is for. Whatever the case with the concept of law, the rule of law is a more clearly com­ pelling candidate for teleological understanding. The rule of law is not a natural entity, simply awaiting scientific description; it too needs to be understood in terms of what it is for. While such a purpose could in principle be value-neutral or even harmful, the rule of law is commonly thought valuable, an ideal for law. If we value that ideal we should seek to identify what might generate it. But without some principle of selection even if only tacit, we will not find a bunch of legal bits and pieces waiting ‘out there’ and neatly rec­ ognizable as the rule of law. As Rosenfeld has observed, Like the concepts of ‘liberty’ or ‘equality,’ the descriptive meaning of ‘the rule of law’ is dependent on the prescriptive meaning one ascribes to it; in the context of complex contemporary polities there likely will be vigorous disagreements con­ cerning the relevant prescriptive standards at stake.31 (p. 241) This is evident, if implicit, even from the anatomical accounts we have just dis­ cussed. Thus Dicey did not merely choose three characteristics at random among the many that English law possesses. Rather, he believed them to be the specific sources of ‘a trait of national character which is as noticeable as it is hard to portray’.32 But what if he were wrong in that portrayal? Or, counterfactually, what should he have said if he could be persuaded that similar ‘trait[s] of national character’ could be found elsewhere with a completely different set of legal conventions, practices, and institutions? Would he deny that they had anything to do with the rule of law, or might he have to concede that he had misunderstood the sources of the rule of law, or at least been mistaken in suggesting that there were no other ways to the same end? Similarly, there is nothing purpose-neutral or, indeed, value-neutral about Fuller's ‘princi­ ples of legality’ or MacCormick's and Waldron's stress on procedural requirements for the rule of law. The rule of law is a purposive and normative concept, not just a happenstance Page 9 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law collection of legal-institutional characteristics. We might avoid many false steps were we to start by articulating the valued ends we associate with the rule of law, and only then move to speculate about how they might be approached. It is more common, however, to proceed the other way around.33 What is that valued state of affairs, which allows us to speak of the rule of law existing in a society? Here I would propose a distinction between external and immanent and values of the rule of law. Thus, according to the World Justice Project, the rule of law is ‘the foun­ dation for communities of opportunity and equity … the predicate for the eradication of poverty, violence, corruption, pandemics, and other threats to civil society.’34 This extrav­ agant list is of external consequences that flow, if they do, from the presence of the rule of law, rather than immanent ones, in the sense of this distinction. They are things we might value as elements in a good society, and presumably would still value, if we were handed them on a plate, whether or not we needed the rule of law to achieve them. What ends are immanent in this sense? Here there is great room for argument, though we are not flying blind, since there are enduring themes in rule of law traditions. Even if my own specific proposal is rejected or augmented, however, I would urge the first point of this section: start with ends, so to speak, whatever you take them to be; do not jump too hastily to means. One recurrent theme in rule of law traditions35 is a contrast between the rule of law and arbitrary exercise of power. Institutionalizing ways of reducing arbitrary power is an im­ manent rule of law value, whatever else flows from it. The concept of arbitrariness is complex and insufficiently theorized. However, a good starting point is Philip Pettit's defi­ nition: An act is perpetrated on an arbitrary basis, we can say, if it is subject just to the arbitrium, the decision or judgement, of the agent; the agent was in a position to choose it or not choose it, at their pleasure.36 It is such unconstrained exercise of arbitrium that partisans of the rule of law have op­ posed and sought to eliminate. Unpredictable exercise of power is one way of treating its targets arbitrarily; another is its exercise, whether predictable or not, that takes no ac­ count of the perspectives of those whom it would affect. Why does arbitrariness matter? Because it tends ineluctably to: threaten the liber­ (p. 242) ty of anyone subject to it; generate reasonable and enduring fear among them, even if ar­ bitrary power happens pro tem not to be exercised in fearful ways, as long as it might be at any time; and deprive citizens of sources of reliable sources of expectations of, and co­ ordination with, each other and with the state. And, as Fuller and Waldron have empha­ sized, it threatens the dignity of all who find themselves mere objects of power exercis­ able at the whim or caprice of another. These are four good reasons to value reduction of the possibility of arbitrary exercise of power.37 To the extent that the rule of law can help to deliver such reductions, this is reason to value it. This is not, of course, merely a nega­ tive matter of removing evils, but can be expressed positively. A society in which law con­ Page 10 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law tributes to securing freedom, confidence, coordination, and dignity, is some great and positive distance from many available alternatives. There are other things we want from law, and many more things we might want in a good society, but ways of serving these values are goods immeasurably harder to attain without institutionalizing constraints on arbitrariness in the exercise of power. There is nothing original or even lonely in nominating opposition to arbitrariness as a fun­ damental concern of the rule of law. However, taking the point seriously and starting with it has a number of implications that have not always been noted. The most important is that the utility of the anatomical accounts above depends on how adequately they capture what is necessary to secure this value. To the extent they do, they have aided us in identi­ fying what the law needs to be like to serve the end of the rule of law. To the extent that they do not, however, it is not at all clear why we fix on them so, still less try to extend them to places where they might merely have parodic roles. The challenge for the rule of law is not primarily to emulate Dicey, Fuller, or Waldron, but to reduce the possibility of arbitrary exercise of power. Taking this ambition seriously, moreover, may not only require different legal rules and practices from those we know, particularly in places we do not know, but also the recogni­ tion that many of the most significant sources, goods, and dangers to the rule of law are to be found in the wider society, not merely in or even near the obvious institutional cen­ tres of official law. There are numerous societies in which arbitrariness flows as much or more from extra-state exercises of power, sometimes aided by suborned official agencies, sometimes opposed to them. Sources of power are many, and possible constraints on it may come, or fail to come, from many domains of social life. IV. Negative or Positive? Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good less for what it creates than for what it might prevent. On this understanding, the rule of law is pre-eminently concerned to block the possibility of unruly power, to curb, re­ strain, and channel power's exercise. This is not a new development. Thus the historian John Philip Reid emphasizes, of the English legal tradition imported to the United States, ‘From time immemorial the legal heritage of Europe beyond the pale of Roman law had been law as restraint, not law as command.’38 He quotes Bracton's revealing metaphor from the thirteenth century, of law as ‘the bridle of power’, by which a just king, as distinct from a ‘tyrant’, must ‘temper his power’.39 Again, Judith (p. 243) Shklar, partisan of ‘damage control’,40 as the first goal of political arrangements, insists that the prevention of evil, rather than a quest for the good, is the signal and precious virtue of the rule of law. Page 11 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law Whereas for Shklar the rule of law acts negatively to priceless effect, the legal philoso­ pher Joseph Raz also construes its significance as negative, and though he praises it, the praise is relatively tepid (two cheers). He describes it as ‘a purely negative value … mere­ ly designed to minimize the harms to freedom and dignity which the law might cause in its pursuit of its goals however laudable these might be.’41 Shklar does not share Raz's lukewarm tone, and there are two mistakes here that she would be unlikely to make. First, the harms for which the rule of law is a suggested antidote are abuses of power, not merely of law. There are many ways in which power can be exercised, used, and abused, even by the state, without the intervention of law. The rule of law is intended to exclude all those other ways from the start. More is necessary, but that exclusion is no small mat­ ter where the dangers of arbitrary power are a concern. Secondly, what of all those pow­ er-holders outside the state, that might abuse power, though not through law? Constrain­ ing them by law is no small matter. Nevertheless, Shklar and Raz agree at least that the value of the rule of law lies in what it rules out rather than what it rules in; what it re­ strains and prevents, rather than what it generates and encourages to flourish. A more complex way of characterizing the ambition to constrain and channel power by law that is simultaneously an instrument of power, is old in the English tradition of the rule of law. It was well described by Charles McIlwain,42 and its rationale has recently been recovered and re-articulated by Gianluigi Palombella as central to the rule of law. According to this tradition, the point of the rule of law is ‘to prevent the law from turning itself into a sheer tool of domination, a manageable servant to political monopoly and in­ strumentalism,’43 It requires that, besides the laws that bend to the will of governments, ‘ “another” positive law should be available, which is located somehow outside the purview of the (legitimate) government, be it granted by the long standing tradition of the common law or by the creation of a ‘constitutional’ higher law protection, and so forth.’44 The common law writers spoke of a balance between the sovereign's untrammelled right to pursue the ends of government ( gubernaculum) and legal protection of the right (juris­ dictio). The former must not overwhelm the latter, even if it is unlimited in its own sphere. The solution was found in the common law, viewed not just as a moral limit but a binding legal one. Written and binding constitutions are more recent examples of such an ambi­ tion. In all these the ruler is constrained by something that is truly law but not his to rule, not able to be bent to his will. Such a conception, such a duality, Palombella argues, was missing, until the last century's spread of constitutions, from the continental European Rechtsstaat, which many, wrongly in his view, assimilate to the rule of law. Without this duality, a state may commit to Fuller's criteria of non-arbitrariness as its form of rule, without any overarching constraint that renders anything beyond its power. Its ultimate goals might have nothing to do with reduction of domination, fear, indignity, or confusion. They might simply amount to tidy, reliable, and controllable ways for officials to extend state power and transact matters of state. On (p. 244) Palombella's view, the rule of law goes further than this. It lawfully sets limits on even a sovereign's lawful powers. Page 12 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law Even in this version the stress is on constraint as the distinguishing feature of the rule of law. Not everyone agrees. One way to disagree is to say there is more to the rule of law than constraint on power. Another is to redescribe the significance of rule of law con­ straints themselves. Ronald Dworkin and Philip Selznick disagree in the first way; Stephen Holmes in the second. Dworkin is sceptical of conventional ‘rule book’ conceptions of the rule of law, which in­ sist that so far as is possible, the power of the state should never be exercised against indi­ vidual citizens except in accordance with rules explicitly set out in a public rule book available to all … Those who have this conception of the rule of law do care about the content of the rules in the rule book, but they say that this is a matter of substantive justice, and that substantive justice is an independent ideal, in no sense part of the ideal of the rule of law.45 He, by contrast, regards the rule of law as an ideal and an eminently positive and sub­ stantive one, ‘the ideal of the rule by an accurate public conception of individual rights’.46 On this view, the rule of law is the rule, in ‘law's empire’, of Dworkin's theory of law. Selznick has written more, and more variously, on the rule of law than Dworkin, and his views are more complex. On the one hand, he understands the appeal of the negative con­ ception, and he has often emphasized its importance. Thus, he agrees with those political realists who stress the importance of legality as a restraint on, and see the rule of law as a precious protection against abuse of, power.47 On the other hand, there is a ‘larger promise of the rule of law’, and this thicker, more positive vision speaks to more than abuse of power. It responds to values that can be realized, not merely protected, within a legal process. These in­ clude respect for the dignity, integrity, and moral equality of persons and groups. Thus understood, the rule of law enlarges horizons even as it conveys a message of restraint.48 This threatens to breach Raz's opposition to giving a concept so much work that it fails to do any useful job, but it need not. Selznick is particularly insightful about the dynamic pressures that a legal order will tend to generate, both when it fails to satisfy subjects’ expectations as when it succeeds. Unusual among writers on the rule of law, Selznick was a distinguished sociologist, and in part his objection to a purely limited conception of le­ gality is that: We cannot really separate the negative and positive aspects of the rule of law. In­ deed it would be highly unsociological to try to do so, for we would then miss the moral and institutional dynamics which create demands for justice, and which in­ duce rulers to accept accountability. … we should not reduce the rule of law to its most rudimentary forms.49 Page 13 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law There is yet another sense in which the rule of law can be understood to be a positive achievement, one which does not deny that it is primarily a matter of constraints but in­ terprets differently the significance of those very constraints. Thus, Stephen Holmes elab­ orates on the (p. 245) empowering consequences of legal constraints, as elements of what he calls ‘positive constitutionalism’. The ‘paradoxical insight’ of this tradition, that: constraints can be enabling, which is far from being a contradiction, lies at the heart of liberal constitutionalism. … By restricting the arbitrary powers of govern­ ment officials, a liberal constitution can, under the right conditions, increase the state's capacity to focus on specific problems and mobilise collective resources for common purposes.50 As he goes on to show: constitutions not only limit power and prevent tyranny, they also construct power, guide it toward socially desirable ends, and prevent social chaos and private op­ pression, immobilism, unaccountability, instability, and the ignorance and stupidity of politicians. Constitutions are multifunctional. It is, therefore, a radical oversim­ plification to identify the constitutional function exclusively with the prevention of tyranny.51 On this second view, like an athlete who learns techniques and disciplines to marshal raw energy, so the power of a state to concentrate its powers where it should is enhanced by constraints which, among other things, deny it power to disperse them where it should not. These are particularly important points in the context of contemporary anxieties about terrorism, and Holmes has applied his thought to that context. He argues that, so far from being a reason to discard the constraints of law, emergencies are precisely times when such pre-tested constraints are typically most needed. He is critical of the very common attempts by governments to ‘release the shackles’ of the rule of law in situations seen as emergencies—to rule without open, calculable rules, to dispense with safeguards of procedural fairness, suspend habeas corpus, diminish or discard the ordinary protec­ tions and contestatory opportunities traditionally associated with legal hearings. Such at­ tempts pay no heed to the positive, enabling, competence-protecting role of the rule of law, and particularly to the dangers of panicked flailing about, over-inclusion, plain unac­ countable incompetence, ignorance, and lack of exposure to tests of the reliability of in­ formation, that often attend the acts of power-wielders acting in secret and on the fly. To ignore this ‘liberal paradox’ is to ignore the powerful constructive significance of the rule of law.52 In making these arguments, Holmes speaks of constitutionalism as often as he does of the rule of law. Clearly he believes the arguments apply to both. More generally, it is clear that there is overlap both in the ends and means of constitutionalism and the rule of law, but they are not the same.53 They are closer perhaps in ends than in means. Both seek to staunch possibilities of arbitrary power, but not every aspect of the rule of law is a consti­ Page 14 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law tutional matter, and not everything likely to be found, in a modern constitution at any rate, is part of the rule of law. Constitutions focus on states; they are central elements of public law. On the argument developed here, the rule of law has broader reach, since it deals not merely with acts of state but also with other sources of social power, and the law that affects them. This must include private law. On the other hand, constitutions typ­ ically say a good deal about the content of law, whereas many versions of the rule of law limit it more austerely to matters of form and procedure. And finally, constitutions primar­ ily set frameworks for legally permissible government, (p. 246) whereas the rule of law has a great deal to do with the character of laws. But if they are not identical they are insepa­ rably conjoined. And both of them have crucial negative and positive contributions to make. V. The Administrative State One of the major developments of the twentieth century was the welfare state, and with it unprecedented expansion of state activity, even after neoliberal attempts to ‘roll [it] back’. Much of this governmental activity has been increasingly directed to regulatory and distributive goals, which administrators, well supplied with open-ended legislative provisions, regulatory discretions, and particularized decisions to make, are mandated to achieve. Many writers have been concerned that however well meaning the motives of such activity, their pursuit exacts a high price, even if their goals are likely to be achieved, which many such critics also doubt. A significant part of the cost of the pursuit, it has often been alleged, is borne by the rule of law.54 Friedrich von Hayek had great influence here. He took the modern welfare state's ‘instru­ mentalization’ of law, purportedly in the interests of social justice, both to be the pursuit of a mirage, since social justice was a nonsense concept, and to threaten the end of the rule of law because of the style of law it generated. For him the notion that law must flexi­ bly ‘respond’ to myriad social ‘needs’—other than basic ones such as providing a clear framework of rules for individuals to guide their actions and interactions—emanates from a flawed social theory and presages a damaged polity. It pretends to a knowledge that no individuals but only markets, which aggregate more than anyone separately has, can pos­ sess. And the efficiency of those markets depends on clear, stable, general rules of the game, interpreted and enforced by independent arbiters, not on open-ended policy direc­ tives, increasingly vague and unspecific in their terms, and implemented by centrally de­ termined goal-directed bureaucrats. Bad goals generate bad means, laws that do not guide, frameworks that keep being adjusted, prescriptions too vague and malleable to be followed, but altogether labile in the hands of their wielders. Even by those who do not share Hayek's political or economic analysis have analysed changes in legal form in similar ways. Roberto Unger saw a flat contradiction between the transformations in the form of law generated by the welfare state, and the rule of law. For him, welfare state efforts to render law ‘purposive’ and responsive, engender ‘policy- oriented discourse’ that ‘forces one to make explicit choices among values’, the ‘pursuit Page 15 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law of procedural or substantive justice [that] requires rules be interpreted in terms of ideals that define the conception of justice’, and an ‘escalating use of open-ended standards and a swing toward purposive legal reasoning and procedural or substantive approaches to justice.’ Together these trends ‘repeatedly undermine the relative generality and the au­ tonomy that distinguish the [autonomous] legal order from other kinds of law, and in the course of so doing they help discredit the political ideals represented by the rule of law.’55 Eugene Kamenka and Alice Erh Soon Tay (p. 247) offered a similar diagnosis to Unger's, but their evaluation was closer to Hayek's. They detected ‘a crisis in the form of law, the result of its inability, on its existing form and principles, to accommodate the new content and role being demanded of it.’56 Lest such apprehensions all seem a thing of the pre-neoliberal past, Brian Tamanaha has recently argued that contemporary understandings of ‘law as a means to an end’ present a pervasive ‘threat to the rule of law’. These anxieties have not died. Though these issues are too complex to deal with adequately here, there is one implication of this discussion which might be mentioned: it is impossible even to assess such apprehensions without more attention than is common to the contexts, including ‘extra-legal’ social contexts, in which they occur. VI. Contexts and Conclusions The historian E.P. Thompson, long time a Marxist and always a man of the Left, enraged erstwhile comrades with his encomium to the rule of law at the end of his, for this reason controversial, Whigs and Hunters.57 Notwithstanding that his was a book about laws that he condemned, he concluded that ‘the rule of law itself, the imposing of effective inhibi­ tions upon power and the defence of the citizen from power's all-intrusive claims, seems to me to me an unqualified human good.’58 In insisting on the ‘obvious point’ that ‘there is a difference between arbitrary power and the rule of law’, it might be noted, Thompson starts with the point of the rule of law rather than with the particular institutional forms in which it might be found. Indeed, he noted that legal institutions were constantly being ‘created … and bent’ by ‘a Whig oli­ garchy … in order to legitimise its own property and status’.59 Still, that oligarchy could not do as it wished; its hands were often tied by the law it sought to exploit. How did Thompson show this? By describing the character of legal institutions and norms, or the experience of litigants, or internal legal balances? No. Rather, he called in aid facts such as that law was a definition of actual agrarian practice, as it has been pursued ‘time out of mind’ … ‘law’ was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law. And … this law, as definition or as rules (imperfectly enforceable through institutional forms) was endorsed by norms, tenaciously transmitted through the community.60 Page 16 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law If it were possible to construct a scale of conditions for the rule of law, the eighteenth- century English legal order, as Thompson describes it, would score inordinately well, as Dicey already observed. Not everyone is so lucky. Legal orders differ greatly in the extent to which values, institutions, and practices that support the rule of law are strongly em­ bedded, ‘imbricated’, and interwoven within them. Many are less strongly embedded in institutions, professions, legal and popular culture, and social structure. Many Western legal orders are bearers of value, meaning, and tradition laid down and transmitted over centuries, and not only among lawyers. Prominent among the values deeply entrenched in these legal orders are rule of law values, and these values have ex­ hibited considerable resilience and capacity to resist attempts to erode them. Perhaps that is why first-world (p. 248) legal and philosophical writing evinces so little concern with contexts. For many of the most difficult problems that might be found there have been taken care of, if not by them. They may well, of course, want to improve what they have, but since the underlying threats to legal effectiveness are to a considerable extent neutralized by law, they are often right to concentrate on legal institutions. That is not be­ cause they live in a different world, however, but because some universal problems have been dealt with in their part of it, and the character of the law counts there in ways it may not elsewhere. In these circumstances of relative luxury, moreover, the options open to partisans of the rule of law are also more open than is sometimes acknowledged. Conservatives in rule of law rich countries, suspicious of any falling-off from some idealized version of it, often overreact to, say, injection of any substantive concerns into adjudication or discretionary authority in administration, indeed to any number of welfare state incursions on an ideal­ ized rule of Fuller-full-formal laws. These are interpreted as dangers to the existence of the rule of law as we know it, whereas they might be dangers only in circumstances where legality is already weak, and has no other resources with which to defend itself. Such reactions show little reflection on what the rule of law really depends upon, what it would be like to really threaten what they have of it, and what it would really mean to lack it. Radicals in the same societies, on the other hand, who treat some indeterminacy in appellate decision-making as testimony to fraudulence or at least to absence of the rule of law, exhibit a similar frivolousness about what it might really be to have to live without a good measure of it.61 Perspective is all; here as elsewhere. As Selznick again has argued: the very stability of the rule of law, where that has been achieved, makes possible a still broader vision and a higher aspiration. Without disparaging (to say nothing of trashing) our legal heritage, we may well ask whether it fully meets the community's needs. … So long as the system is basically secure, it is reasonable to accept some institutional risks in the interests of social justice.62 That suggests that not every potential source of threat to the rule of law will be equally salient in different legal orders: some will be much threatened, others less so, by the same things. It also suggests that different threats might require different defences. Not Page 17 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law to mention that we might want to do more than ward off threats. Of course, the rule of law can be seriously threatened even where it appears to be in good shape. If we needed to recall it, the war on terror reminds us of that, as it does of the dangers of complacency in such circumstances. Yet there is still a lot to draw on, even there, which is unavailable in a tyranny, a failed state, illiberal democracy, and so on. Rule of law promoters in transitional and post-conflict societies, by contrast, too often talk as though establishing the rule of law where it has not existed or is being shot to pieces, at times quite literally, is in principle the same sort of legalistic job requiring the same tools, if harder and more dangerous, as cultivating it where it has long grown and has deep roots, and where its presence is an often unreflected-upon ingredient of every­ day life. A moment's comparative reflection on the extra-legal contexts of such ambitions make it hard to see why anyone would think that. The conclusion is not that the rule of law can only thrive where it has thrived, and that where it has thrived it must continue to thrive. There is no compelling reason to support either (p. 249) of these determinist prophecies.63 On the other hand, the rule of law is so complex an achievement, dependent on so many factors in so many domains, that it is pe­ culiarly miscast by lawyers’ often solipsistic understandings and renditions. For as Amartya Sen has observed, Even when we consider development in a particular sphere, such as economic develop­ ment or legal development, the instruments that are needed to enhance development in that circumscribed sphere may not be confined only to institutions and policies in that sphere. … If this sounds a little complex, I must point out that the complication relates, ultimately, to the interdependences of the world in which we live. I did not create that world, and any blame for it has to be addressed elsewhere.64 Bibliography Thomas Carothers (ed), Promoting the Rule of Law Abroad. In Search of Knowledge (2006) Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th edn, 1959) David Dyzenhaus (ed), Recrafting the Rule of Law (1999) James Fleming (ed), Getting to the Rule of Law (2011) Lon L. Fuller, The Morality of Law (1969) Erik G. Jensen and Thomas C. Heller (eds), Beyond Common Knowledge. Empirical Ap­ proaches to the Rule of Law (2003) Neil MacCormick, Rhetoric and the Rule of Law (2005) José María Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (2003) Page 18 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law Franz L. Neumann, The Rule of Law (1986) Philippe Nonet and Philip Selznick, Law and Society in Transition. Towards Responsive Law (1978) Gianluigi Palombella and Neil Walker (eds), Relocating the Rule of Law (2009) Randall Peerenboom (ed), Asian Discourses of the Rule of Law (2004) Judith N. Shklar, ‘Political Theory and the Rule of Law’ in Judith N. Shklar, Political Thought and Political Thinkers (1998) Brian Z. Tamanaha, On the Rule of Law. History, Politics, Theory (2004) Notes: (1) Montesquieu, The Spirit of the Laws (Anne M. Cohler, Basia Miller, and Harold Stone eds and trans, 1989), bk 2, ch 1, 10. (2) John Locke, Two Treatises of Government (Peter Laslett ed, 1963), 396. (3) A point well made and graphically illustrated in Sally Falk Moore, ‘Law and Social Change: The Semi Autonomous Social Field As An Appropriate Subject of Study’ in Sally Falk Moore, Law as Process (1978), 54; see also Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’ (1981) 19 Journal of Legal Pluralism 1. (4) See Tom Ginsburg and Tamir Moustafa (eds), Rule By Law. The Politics of Courts in Authoritarian Regimes (2008). (5) Martin Krygier, ‘The Rule of Law. Legality, Teleology, Sociology’ in Gianluigi Palombel­ la and Neil Walker (eds), Relocating the Rule of Law (2009), 45. (6) A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, 1959), 188. (7) Ibid 193. (8) Ibid 195–6. (9) See Kenneth C. Davis, Discretionary Justice (1969), 216–17; Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey (1973). (10) For the distinction between ‘the flexible and the arbitrary’ as a key insight of the American Framers, see Stephen Holmes, ‘In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror’ (2009) 97 California Law Review 301, 322. (11) See Ivor Jennings, The Law and the Constitution (5th edn, 1933), 39–41. (12) H.L.A. Hart, ‘Problems of Philosophy of Law’ in Paul Edwards (ed), The Encyclopedia of Philosophy (1967), vol 5, 274. Page 19 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law (13) Lon Fuller, The Morality of Law (1969). (14) See Joseph Raz, ‘The Rule of Law and Its Virtue’ in Joseph Raz, The Authority of Law (1979), 210; Friedrich von Hayek, The Constitution of Liberty (1960), 149–50; Geoffrey Walker, The Rule of Law: Foundations of Constitutional Democracy (1988). (15) See H.L.A. Hart's review of The Morality of Law in (1965) 78 Harvard Law Review 1286; Ronald Dworkin, ‘The Elusive Morality of Law’ (1965) 10 Villanova Law Review 634, Martin Golding, Philosophy of Law (1975), 49–50. And see Fuller's comments in his ‘reply to critics’ (n 13), 200ff. (16) See Kristen Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 University of Toronto Law Journal 65. (17) See my ‘Hart, Fuller and Law in Transitional Societies’ in Peter Cane (ed), The Hart– Fuller Debate in the Twenty-First Century (2010), 107–34. The rest of this section draws on that article. See also Chapter 61 on constitutionalism and transitional justice. (18) Fuller (n 13), 207. (19) Ibid 162. (20) Ibid 162–3, emphasis added. (21) On human dignity and autonomy in modern constitutional orders, see Chapter 18. (22) Raz (n 14), 211. (23) Accounts of the rule of law are often distinguished according to the normative com­ mitments they are asked to carry, in these terms. See eg Randall Peerenboom (ed), Asian Discourses of Rule of Law (2004). (24) Jeremy Waldron, ‘The Concept of Law and the Rule of Law’ (2008) 43 Georgia Law Review 1, 22. (25) Neil MacCormick, Rhetoric and the Rule of Law (2005), 14. (26) Waldron, ‘The Rule of Law and the Importance of Procedure’ in J. Fleming, Getting to the Rule of Law (2011). (27) Fuller (n 13), 96. (28) Waldron (n 26), 23–4. (29) Max Weber, ‘Politics as a Vocation’ in Hans H. Gerth and C. Wright Mills (eds), From Max Weber (1948), 77–8. (30) Jeremy Waldron, ‘Legal and Political Philosophy’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002), 371. Page 20 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law (31) Michel Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democra­ cy’ (2001) 74 Southern California Law Review 1308–9. (32) Dicey (n 6), 187. (33) See Krygier (n 5), 45; Martin Krygier, ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?’ in James Fleming (ed), NOMOS L: Getting to the Rule of Law (2011), 64. (34) Rule of Law Index (2010), 1. (35) See John Philip Reid, Rule of Law (2004). (36) Philip Pettit, Republicanism: A Theory of Freedom and Government (1997), 55. (37) I discuss these four reasons more extensively in Krygier (n 33). (38) Reid (n 35), 12. (39) Henry de Bracton, On the Laws and Customs of England, vol 2, 305–6, quoted in Reid (n 35), 12. (40) Judith N. Shklar, ‘The Liberalism of Fear’ in Judith N. Shklar, Political Thought and Political Thinkers (1998), 24–5, 9; and see ‘Political Theory and the Rule of Law’, ibid 21. (41) Raz (n 14), 228. (42) Charles McIlwain, Constitutionalism: Ancient and Modern (revised edn, 1947). (43) Gianluigi Palombella, ‘The Rule of Law as an Institutional Ideal’ in Gianluigi Palombella and L. Morlino (eds), Rule of Law and Democracy: Internal and External Is­ sues (2010), 3, 4. (44) Ibid 31. (45) Ronald Dworkin, ‘Political Judges and the Rule of Law’ in Ronald Dworkin, A Matter of Principle (1985), 11. (46) Ibid 11–12. (47) The Moral Commonwealth (1992), 174. (48) Philip Selznick, ‘Legal Cultures and the Rule of Law’ in Martin Krygier and Adam Czarnota (eds), The Rule of Law after Communism (1999), 26. (49) Ibid 25–6. (50) Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (1997), xi. On enabling constraints in other contexts, see David Stark and Laszlo Bruszt, Page 21 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law Postsocialist Pathways (1998). See also Martin Loughlin, The Idea of Public Law (2003) and Jon Elster, Ulysses Unbound (2000). (51) Holmes (n 50), 6. (52) Stephen Holmes, The Matador's Cape: America's Reckless Response to Terror (2007), 6. On states of emergency, see Chapter 21. (53) On constitutionalism, see Chapter 8. (54) See eg Walker (n 14); F.A. Hayek, Law, Legislation and Liberty (vol 1, 1973; vol 2, 1974; vol 3, 1979); E. Kamenka and A.E.-S. Tay, ‘Beyond Bourgeois Individualism—The Contemporary Crisis in Law and Legal Ideology’ in E. Kamenka and R.S. Neale (eds), Feu­ dalism, Capitalism and Beyond (1975). And from a different political perspective, see Bri­ an Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006). More complex appraisals of such developments include Otto Kirchheimer, ‘The Rechtsstaat as Magic Wall’ in Otto Kirchheimer, Politics, Law, and Social Change (1969), 428; and Philippe Nonet and Philip Selznick, Law and Society in Transition (1979). On the regulatory state, see Chapter 31. (55) Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory (1976), 195, 197. (56) Kamenka and Tay (n 54), 127. (57) E.P. Thompson, Whigs and Hunters. The Origin of the Black Act (1977). (58) Ibid 266. (59) Ibid 260–1. (60) Ibid 261. (61) I have particularly in mind Critical Legal Studies, a now dated movement but which has occasional echoes. (62) Selznick (n 48), 464. (63) See Martin Krygier, ‘Institutional Optimism, Social Pessimism, and the Rule of Law’ in Krygier and Czarnota (n 48). (64) Amartya Sen, ‘What is the role of legal and judicial reform in the development process?’, World Bank Legal Conference (2000), 10. Also see Brian Tamanaha, ‘The Prima­ cy of Society and the Failures of Law and Development: Decades of Refusal to Learn’ (2011) 44 Cornell International Law Journal 209. Martin Krygier Page 22 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019 Rule of Law Martin Krygier is Gordon Samuels Professor of Law, University of New South Wales and Adjunct Professor, Regulatory Institutions Network (RegNet), Australian Nation­ al University Page 23 of 23 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Riga Graduate School of Law; date: 25 November 2019