II, ch. But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects Hobbes : However, the distinction may not be so clear-cut. Even rule by law seems to imply that rulers accept something like the formal discipline of legality. Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law.
So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: the latter are assured that the promulgated rules are the ones that will be used to evaluate their actions see also Winston Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda.
They take seriously the ancient idea that we might be ruled by laws and not by men.
One may ask: how is that supposed to happen? After all, all law is made by people and interpreted by people and applied by people.
Are We Under Law or Grace?
It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers Epstein Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others.
No doubt there is a lot of mythology in this. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state. As we saw in the discussion of Hayek , the other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials.
Legislation is a matter of will. The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative. However, most people who value the Rule of Law do not accept this approach. If a statute is properly drafted if it is clear, intelligible and expressed in general terms and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law.
Indeed that is what many scholars mean by the Rule of Law: people being governed by measures laid down in advance in general terms and enforced equally according to the terms in which they have been publicly promulgated. The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse. No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action.
Was Jesus Christ Born Under the Law?
But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede see Waldron —3 and —8. Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises.
These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values. These principles are formal, because they concern the form of the norms that are applied to our conduct. So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form. A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.
Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. These rules themselves should operate impersonally and impartially. Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance.
Laws face in two directions: i they impose requirements for ordinary citizens to comply with; and ii they issue instructions to officials about what to do in the event of non-compliance by the citizens.
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Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii. So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account.
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The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical Weber : —95 and the lay-person will often require professional advice as to what the law requires of him. It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires.
In the nineteenth century, Jeremy Bentham ch. We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima :.
What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it was , and to be represented so that their own side of the story could be explained. No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing.
Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase. Some procedural requirements are also institutional in character: there must be courts and there must be judges whose independence of the other branches of government is guaranteed. This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society.
But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. Generality—proceeding according to a rule—is often said to contain the germ of justice Hart ch. And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty.
We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements. Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property.
The commitment to such processes is the essence of the rule of law.
Maintenance under Muslim Law
Cass But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits. What was missing was the substantive component of the rule of law.
The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. World Justice Project 9. Those considerations, he said, are better understood as independent dimensions of assessment.
A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. Bingham And many liberals are inclined to follow them in that. But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity.
Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy. All this sounds an analytic danger signal. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals.
Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller 39—40 called a bond of reciprocity—a mutuality of constraint—between the ruler and the ruled, and in that sense it mitigates the asymmetry that political power otherwise involves.
Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty.
My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans. Hayek Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom.
Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses.
He quoted Lord Mansfield to the effect that.
Lord Mansfield in Vallejo v. Wheeler 1 Cowp. These conceptions claim to bring a certain air of reality to our discussions of freedom. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application. Knowing in advance how the law will operate enables one to make plans and work around its requirements see Hayek and —7. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.
So we need a basis for expectation. It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole. Bentham [, ]: Joseph Raz and Lon Fuller took the point about freedom even further.
Related Under the Law
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