Juris (5) Legality and Legalism
Key questions :—
(a) What is ‘rule of law’?
(b) Is it needed for law to exist?
(c) Is it any good?
(d) If we say that someone is violating the ‘rule of law’ it is bad. Are they downsides to ‘rule of law’?
Rule of law
- Rule of law can be contrasted with anarchy (absence of any kind of authority). See Hobbes’s state of nature, where
there is no sovereign authority.
- Rule of law can be contrasted with tyranny. If there is a dictator, there is a form of rule (someone has authority), but
no rule of law because the tyrant is not constrained by law.
- ‘Rule of law’ appears in political discourse.
• Illegal immigrants coming to the US, Trump says that laws about immigration is to be enforced strongly, restoring
the ‘rule of law’.
• This applies to subjects (immigrants, not citizens of US). These subjects not enforcing the rule of law, getting too
close to anarchy.
- On the contrary, Trump is attacking the rule of law? Example ; allegation of illegal activity during campaign
(collaboration with Russia). Who is going to enforce the rule of law against him when he is president? The
department of justice, but this is controlled by president. President Trump’s Roger Stone is caught violating federal
laws and Trump went on Twitter to go easy on his friend.
- Jurisprudential debates focus on rule of law as constraint o n government authority.
- What does it take for a form of rule to quality as the rule of law?
• Contrast with rule of dictatorship; rule of bureaucratic discretion
(A) What is rule of law?
- Rule of law contrasted with rule of individuals.
- Rule of law is political situation whereby those in authority exercise their power by and through public norms that
constraint them rather then on the basis of their personal preferences / sense of right.
• A state of being in a community, in a national polity.
• Public norm is that courts get to decide on constitutional principles.
• If the government obeys public norms above, possibility of retaliation against judiciary? A threat to judges and
against the rule of law itself?
WHAT IS THE RULE OF LAW?
- Albert Venn Dicey stated that one fo the fundamental principles of British Constitution is rule of law, the other being
parliamentary sovereignty.
• ‘With us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribunals.’
• One law that applies to private citizens and to the government. But now, we think that we might need more
restrictions to government that to citizens?
- Friedrcih von Hayek stated ‘Stripped of all technicalities this means that government in all its actions is bound by
rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority
will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this
knowledge.’
• People can plan in advance on what to act; government has to be bound by rules beforehand, so that they can be
predictable. Doesnt matter what the content of the law is, as long as you know what it is and know how
government will exercise its powers.
- Ron L Fuller gave a formal elaboration of the rule of law, through the fable of King Rex.
• King Rex wanted to reform the legal system, but he failed, not only in not succeeding in introducing the needed
reforms, but never even succeeded in reading any law at all.
• He first repealed all existing law, and set about drafting a new code, but was incapable of doing so due to his
defective education.
• He gave up the project of a code and announced that he would act as a judge in any disputes that might arise
among citizens. He hoped that proceeding case by case, he would work out a system of rules to be incorporated
into code.
• He handed down many decisions which had no pattern whatsoever, which led to confusion and false leads to his
citizens.
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, • He then wrote a code which would govern cases, but the content of the code remain an official state secret. The
citizens resented that it was unpleasant to have one’s case decided by rules when there was no way of knowing
what those roles are.
• He wanted to decide things with the aid of hindsight, rather than attempt to foresee and control the future. He
decide all the cases during the preceding year, and accompany his decisions with full statement of reasons. These
reasons are not controlling decisions/precedents in future years.
• But this code was obscurely drafted, neither an ordinary citizens or trained lawyer could understand it.
• He sought assistance to clarify the code, but it was full of contradictions. A provision in the code was nullified by
another provision inconsistent with it.
• He decided to stiffen every requirement in the code and added a long list of new crimes (ex, to cough, sneeze in
the presence of the king is punishable to 10 years imprisonment)
• Code was amended and re-amended.
• He reassumed judicial power in his own person, so he could directly control the application of the new code.
• But it was soon discovered that was no relation between his judgements and the case they purported to apply.
• According to Fuller, King Rex failed to do law, not just doing law in a bad way.
- According to Fuller, the rule of law requires 8 directives (‘demands of the inner morality of law’) that are
(a) General : rule apply to large class of cases
(b) Public : people need to know the rule to follow them ; transparency
(c) Prospective : not retroactive (you do something and find out the next day that the lawmaker makes the law
illegal)
(d) Understandable : rules cannot be vague or ambiguous
(e) Coherent
(f) Possible to comply with
(g) Stable : if there is constant changes, and unable to plan.
(h) Congruence between enactment and enforcement
- Fuller has taken an extreme scenario of King Rex to show intuitively that we these RoL principles to have a proper
legal system (‘an intuitive pump’)
- A total failure in any of these 8 directives does not result in a bad system of law, but not a legal system at all.
• There can be no rational ground for asserting that a man can have a moral obligations to obey a legal rule that
does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible,
or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.
• It may not be impossible for a man to obey a rule that is disregarded by those charged with its administration, but
at some point obedience becomes futile (futile as casting vote that will never be counted)
• As Fuller explains it using Simmel’s argument, there is a kind of reciprocity between government and the citizen
with respect to the observance of rules.
- Government says to the citizen in effect, ‘These are the rules we expect you to follow. If you follow them, you
have our assurance that they are the rules that will be applied to your conduct’
- When this bond of reciprocity is finally and complete ruptured by the government, nothing is left on which to
ground the citizen’s duty to observe the rules.
- [Critique]
• Rundle notes that Fuller is trying to make the point that the legal subject’s moral obligation to obey law only
arises in the first place in response to, or in anticipation of, the law-giver’s corresponding effort to create
and maintain a workable legal order within she might be able to live her life.
• To secure the legal subject’s fidelity to law, a lawyer must enter into a relationship of reciprocity with her.
• Rundle notes that the precise bond of between lawgiver and subject is not specified, and neither are the
circumstances that will lead to its rupture. The respect conveyed by the legal subject to the lawgiver’s
authority is not only essential for the existence of law, but must not be confused with a ‘mere respect for
constituted authority’ because after all, Rex’s subjects remained faithful to him even when they were not
faithful to his law. Hence, the fidelity to law is something qualitatively different to deference to authority.
• The citizen’s predicament becomes more difficult when, though there is no failure in any direction, there is a
general and drastic deterioration in legality, as occurred in Germany under Hilter
- A situation begins to develop (in which though some laws are published, others, including the most important
are not) Though most laws are prospective in effect, so free a use if made of retrospective legislative that no
law is immune to ex post facto if it suits the convenience of those in power.
- Increasingly, the principal object of government seems to be, not that of given the citizen rules by which to
shape his conduct, but to frighten him into impotence
- As such as situation develops, the problem faced by the citizen is not so simple as that of a voter who knows
with certainty that his ballot will not be counted. It is more like of the voter who knows that the odds are
against his ballot being counted at all, and that if it counted, there is a good chance that it will be counted for
the side he actually voted.
- So it was with the German citizen under hilter faced with deciding whether he had an obligation to obey such
portions of the laws as the Nazi terror had left impact
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, - In situations like these, there can be no simple principle by which to test the citizen’s obligation to fidelity to
law, any more than there can be such a principle for testing his right to engage in a general revolution.
- One thing is clear : a mere respect for constituted authority must not be confused with fidelity to law.
RULE OF LAW : FORMAL/PROCEDURAL
- What unties these formal attributes of directives?
• They render the exercise of authority predictable, and shape your conduct accordingly
• They entail respect for the autonomy and dignity of the law’s subjects as agents (they have some sort of
entitlement to plan their lives)
- Other add procedural features to Fuller’s formal attributes
(i) Raz : independent judiciary, natural justice/due process (see core and further reading)
• Because the rule of law is in practice not going to pertain without an independent check
(ii) Waldron : decisions imposing serious loss to be taken by legally-trained officer, right to legal representations,
appeal
Waldron adds procedural features to Fuller’s formal attributes where he suggests that citizens need to have a right to
representation and appeal. He argues that the conception of rule of law that citizens have in mind differs from the
academic conception of legal philosophers. When the detainees in the Guantanamo Bay clamour for the restoration of
rule of law, they ask for hearings on loss of liberty where they would have the opportunity to put their case and make
arguments for their freedom. Hence, Waldron argues that one has to also focus on the procedural demands such as to
uphold the formal aspects of rule of law
• Waldron is struck by the fact that the features of rule of law that ordinary people call into attention are not
necessarily the features that legal philosophers have in academic conception.
• Legal philosophers tend to emphasis on the formal elements of rule of law (general norms, rules laid down
in advance, made public etc), but these are not necessarily what ordinary people have in mind when they call
for the Rule of Law.
• Formal aspects of RoL is not what ordinary people have in mind, instead they often have in mind the
absence of corruption, the independence of the judiciary, and a presumption in favour of liberty.
- They have in mind elements of legal procedure and the institutions like courts that embody them.
- Example : When people clamoured in Pakistan for a restoration of the RoL, their concern was for the
independence of the judiciary and the attempt by an unelected administration to fire a whole slew of
judges. When advocates for detainees in the American base at Guantanamo Bay clamour for the RoL,
they are clamouring 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 evidence against them, and
make arguments for their freedom according to normal legal procedures. That was the gist of their habeas
corpus demands.
• No doubt the formal features stressed by Fuller would be important, because it is very difficult to
make a case at a hearing if the laws governing detention are unacceptable vague, or indeterminate, or
kept secret.
• We will still miss out a whole important dimension of the RoL ideal if we do not also focus on the
procedural demands themselves which give the formal side of the RoL this purchase.
- NOTE : Both are adding something to rule of law, but formal procedures
• But formal/procedural ideas of rule of law don’t evaluate aims/content of authority’s directives
• Fuller : rule of law is not about the overall fairness, correctness of justness of the law. In principle, could comply
with rule of law but could be unjust for other reasons.
Waldron : courts, hearings and argumentations — RoL promote respect for freedom and dignity of each person
as an active intelligence
- The impression given its that in most cases authoritative identification of legal norms using rule of recognition is
sufficient.
• Once it is recognised, a legal norm can become a straightforward guide to official action.
• But Waldron argues that occasionally the language is unclear — because words have open texture or because our
aims are indeterminate — and then unfortunately we have no choice but to argue the matter through.
• Waldron thinks that a conception of RoL that sidelines the importance of argumentation cannot really do justice to
the value we place on government treating ordinary citizens with respect as active centres of intelligence.
- The demand for clarity and predictability is commonly made in the name of individual freedom — the freedom of the
Hayekian individual in charge of his own destiny who needs to know where he stands so far as social order is
concerned.
• From time to time, the free Hayekian individual will find himself charged or accused of some violation. Or his
business will be subject—as he thinks, unjust or irregularly—to some detrimental rule.
• Some such cases may be clear; but others may be matters of dispute
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, • An individual who values his freedom enough to demand the sort of calculability that the Hayekian image of
freedom under law is supposed to cater to, is not someone who we can imagine always tamely accepting a charge
or a determination that he has done something wrong.
• He will have a point of view, and he will seek an opportunity to bring that to bear when it is a question of applying
a rule to his case.
• Legal argumentation and the facilities that law’s procedures make for the formal airing of these arguments.
• Courts, hearings and arguments—those aspects of law are not optional extras; they are integral parts of how law
works; and they are indispensable to the package of law’s respect for human agency.
• The RoL rests upon : respect for freedom and dignity of each person as an active intelligence.
RULE OF LAW : SUBSTANTIVE
- Substantive conceptions of rule of law go beyond form/procedure to include
• Private property : a libertarian view
• Protection of human rights
- Raz : Rule of law can’t mean rule of good law.
• The rule of law is not the rule of good law.
• A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation,
sexual inequalities, and religious preservation may, in principle conform to the requirements of the rule of law
better than any of the legal systems in Western democracies.
• These will be a worse legal system, but they conform to the rule of law.
- Lord Bingham : human rights are part of rule of law; embraces a thick definition of protection of human rights within
its scope.
RULE OF LAW : RULEBOOK V RIGHTS
- Dworkin : formal ‘rulebook’ conception of RoL are inadequate
• Rulebook conceptions focus on predictability at the expense of justice. Sometimes, predictability is unjust.
• He wants to make them to best they can be ; offer an interpretation of RoL which is attractive and coherent with
other ideas.
• Substantive ‘rights’ conception of RoL = ideal of rule by an accurate public conception of individual rights.
- This is very demanding; not enough that legal system is ruling according to some conception of individual
rights, it must be ‘accurate’. There has been no system that lives up to this ideal.
Be clear of what you mean when you refer to the RoL in exam!
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