Rule of Law Flashcards
Marmor
Countries that cherish the rule of law and those who are critical of it
Countries in which it has been neglected for many years i.e. Easter European countries like Romania
Marxists are critical of the rule of law
Marmor
Common mistake about the rule of law
to confuse it with the ideal of the rule of good law, i.e. respect for freedom and dignity.
Seems Hayek fell into this trap
Marmor
what does the rule of law become when it regarded as a general ideal of good law?
no-longer a unique ideal but a whole philosophy about what the law should achieve and the values it should uphold
Marmor
what is the challenge?
defining legalism per se, a much narrower concept, and explaining why it is good and to what extent
He thinks like his grandma’s jam, too much of the rule of law is a bad thing
Marmor
what does he assume the essence of the rule of law is?
what 2 components are there?
- requires that governments, namely de facto political authorities, should rule (i.e. guide their subjects’ conduct)
- requires that the law by which governments purport to rule should be such that it can actually guide human conduct
- the second has attracted more scholarly discussion (‘and rightly so’
Marmor
principle 1. governments should rule by law
‘government by law, not by men.’
shows how this is misleading because (1) legislators etc are men, (2) there are sometimes there are legally ultra vires actions (where government purports to be authorised by a specific act but is in fact not)
Marmor
principle 1. governments should rule by law
what does it mean that governments ought to rule by law?
We can only answer this if have an idea about what would violate this ideal: how could a government rule if not by law?
Depends on a theory about what law is, and what kinds of means of social control are legal.
E.g. command theory of the law - order back by sanction of the de facto sovereign would be law, by definition (Austin). But difficult to imagine it being sustained by means which are not legal.
At the other end of the spectrum (natural law), where only those norms that meet a certain moral constraint count as law, a great deal of what we would call law would not really be law even in a well ordered society..
the two horns of the dilemma
Marmor
how does principle 1 relate to principle 2?
The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of law’s specific content is to be preferred to governance by other means of social control
- brings us onto principle 2 - law must be such that it actually can guide human conduct
Marmor
The law should be such that it can actually guide human conduct
the conditions:
certain conditions that the law has to meet in order to be able to fulfil its pivotal function of guiding human conduct
Consensus on what these conditions are, following roughly the list of Fuller:
- generality
(cannot be addressed to individuals) - promulgation
(one must be aware of the rules if they are to be guided by them) - no retroactive rules
(must prescribe behaviour prospectively) - clarity
(cannot follow unclear prescriptions) - no contradictory rules
(people can not follow both competing prescriptions) - no impossible prescriptions
(a rule that cannot be followed cannot guide human conduct) - stability
(law can change but not too frequently since many of our actions which the law purports to regulate require advance planning, preparation and a certain guaranteed expectations about the future normative environment) - consistent application
(requires independent judiciary, relatively easy to access litigation and reliable enforcement agencies)
Marmor
why is it a virtue for the law to have these attributes, if it must have them in order to fulfil its function?
- if feature x is functionally good for A to fulfil designated task y, them having x is functionally good for A - i.e. extent to which a knife is made to cut, then the sharpness of the knife is functionally good; a sharp knife is a good knife - same for the rule of law
- the better is scores in one the better it functions in regulating behaviour
Marmor
Why might the rule of law virtues, though essentially functional, promote other goods?
condition of generality may ensure a certain level of impartiality which we value in addition to the fact that it enables the law to function as a social instrument of social control
condition of promulgation and publicity render it politically transparent and open for public deliberation, which we may value independently of law’s ability to guide conduct
This explains why many view the rule of law as an important ideal - upholding the rule of law is likely to promote a whole set of goods that are worth promoting.
Marmor
Marmor challenges the analogy of law fulfilling the conditions of law more to a sharper knife (being a better knife)
not necessarily the case that more of a good thing, the better
‘promoting one kind of good often comes at the expense of another.’
‘less trivially, however, there are some values or ideals that do not call, on their own grounds, for anything like full or perfect implementation… this is because such values on their own grounds set only a rough standard whereby gross deviations from it would be wrong.’
Marmor on generality
norm-subject
In other words, the generality-
relevance principle imposes a certain reason-based identification of the norm-subjects which is essentially general in nature, thus
preventing partiality and favoritism of a certain kind. But of course, there are endless possibilities for the law to be biased, prejudiced,
or unjustly discriminate between groups of people, even if it strictly adheres to the generality-relevance principle. Apartheid in South
Africa was quite legalistic in this respect. If the law is based on bad reasons, then the fact that its norm-subjects are identified on the
basis of those reasons does not prevent it from being bad law
Marmor on generality
norm-act
a matter of degree
it must be distinguished from vagueness
notes that generality can be fleshed out by other agencies, i.e. the court when it interprets a statute
rule of law requires that the law be such that it can actually guide human conduct, it is indifferent about the question of who makes the law
Marmor on generality
promulgation
The law is a system of norms, and norms purport to provide reasons for action, so it must be publicized to those whose action it purports to guide. But, as we have seen, such a functional explanation does not fully capture the values we associate with the requirement of promulgation.
From a purely functional
perspective, many laws need not be made entirely public.
To the extent that we have reasons to require a wider promulgation of the law, those reasons must be derived from other, non-functional
values, such as the need for public scrutiny, open
deliberation, and critical appraisal of the laws of our community. In other words, the
promulgation of law serves deliberative and critical values over and beyond its role in securing the normative efficiency of the law.
On the other hand, it should not be assumed that promulgation is always
morally costless. Under certain circumstances, it is better if people are not entirely aware of the laws governing their situation. There is, in such cases, a certain conflict between the political values of
promulgation, ensuring public scrutiny and critical appraisal, and considerations of individual justice or human compassion. From a political perspective perhaps we would always want to put the law
under glaring light, but there is something to be said for the need to resolve some subtleties if not quite in the darkness, at least in the twilight
Marmor on generality
no retroactive rules
Judicial decisions, then, must be acknowledged as introducing legal changes which often have, at least with respect to the particular
litigants, retroactive effect. Most judges and jurists are quite aware of that, and some of them believe that this in itself is sufficient to
warrant a policy of judicial restraint and conservativism, requiring judges to refrain from changing the law. Introducing legal changes is always better left to the legislature, they say, since the latter can do
so prospectively with due warning.
Although the concern about retroactivity is a serious one, the conclusion is far too quick, even from the limited perspective of the rule of law virtues. After all, flexibility in the application of the law is partly what makes the law
an effective tool of social control. The sheer number and complexity of legal issues in a modern society renders it impossible for any legislature to deal with all the subtleties and legal ramifications
of the entire normative system. A modern legal system must rely on other agents, like judges and administrative agencies, to work out these numerous details and adjust the law to specific cases and
changing circumstances. Presumably, much more harm will be done by a legal system that does not allow for such flexibility in the application of the law than the harm in retroactivity which could be avoid
Marmor on generality
no retroactive rules - on Dworkin
Dworkin distinguishes between policy and principle
Policy is based on societal goals, whereas principle is based on pre-existing rights.
As long as judges refrain from policy decisions then they would not violate the requirement to avoid retroactivity, because their decisions would simply re-affirm pre-existing rights: ‘if the plaintiff has a right against the defendant, then the defendant has a corresponding duty, and it is that duty, not some new duty created by the court, that justifies the award against him.’
But Marmor says that this is illusory… e.g. case law on product liable Donoghue v Stevenson arguably driven by policy as well as better protecting the rights of relevant parties!
Marmor
Clarity of rules
we should also bear in mind that the law is often obscure not because the legislators (or other law makers) have made a mistake in its drafting. In a pluralistic, democratic society,
legislation is often a result of a delicate compromise between
conflicting views and purposes. Sometimes the only way to achieve a compromise is by forgoing maximum clarity. Parties to a dispute may find it easier to agree on a formula which is not entirely clear,
hoping (as they often do without too much delusion) that future interpretation will favor their stance. If we could envisage a world in which no level of obscurity in law making is allowed, we might find that world to be one in which the only law enacted is the law
supported by a solid ruling majority. A ‘winner takes all’ strategy, as this would entail, is a high price to pay for the advantages of maximum clarity.
Whether one thinks that the need to compromise in a pluralistic society is a regrettable fact obviously depends on one’s moral-political views about the values of pluralism. I cannot go into this here. Suffice it to say that for those who regard pluralism itself as a virtue, the need to compromise is not necessarily a regrettable fact. To the extent that a certain level of unclarity tends to facilitate desirable compromises, maximum clarity may not always be the objective that we ought to seek.
E.g. the aims of the land register - clear goal of ‘complete and accurate’ register to promote the indefeasibility of the register; however, this would prioritise the rights of purchasers at the expense of those in actual occupation who through no fault of their own, have had their home sold (Boland)
Marmor
No contradiction
integrity basically entails a ‘winner takes all strategy’ which is at odds with value pluralism. The whole point
of respect for value pluralism is that we do not want to have a legal-political system whereby the winner (be it the ruling majority or the view of the supreme court) imposes its comprehensive moral views
on the rest of the population.
A certain moral fragmentation and incoherence is inescapable if we are to respect pluralism as such (indeed the minority view in any supreme court can provide authority for future rulings!)
Once again, it is all a matter of degree; law cannot function if it is too fragmented and morally incoherent. But coherence comes at a price, and sometimes the price
Marmor
No impossible prescription
Furthermore, not infrequently the law is justified in setting standards of conduct which may be somewhat unrealistically high. The
law may have, in certain areas, a symbolic or educational function which permits it to set higher standards than those that some of its subjects could comply with. For example, it is arguable that in societies which have a disturbing history of racial discrimination, we should expect the law to impose very strict, even harsh, anti-discrimination laws that in other societies might not be warranted.
There is in such cases a symbolic and educational value to setting standards so high, given the past iniquities and their potentially lingering effects. Needless to say, the higher the law sets its standards, the more it runs the risk of noncompliance and failing to guide conduct.
But perhaps the risk of a certain functional failure in the law is sometimes a reasonable price to pay for such symbolic and educational objectives
i.e. discrimination laws, environment law which force countries to cut their emissions by perhaps unattainable levers or technology forcing laws which compel industries to invest for the purposes of developing new technology
Marmor
Stability over a
The desirable level of the stability of the law over time is a very rough standard. We know that the law must change
over time, and we also know that it would be difficult to follow the law if it changes too frequently. But it would be absurd to assume that we can have a precise notion of the ideal pace of change. This
requirement of the rule of law is basically a rough standard, whereby gross deviations from it, in both directions, constitute a deficiency. We can criticize changes in the law if they are too frequent or too
slow. But it hardly makes any sense to say that a given change in the law is ever so slightly too fast, or just a little bit too slow. A rough
standard of stability over time is what law needs to apply in order to function properly
Marmor
Congruence between the rules and their application
Dan-Cohen argues, and I think rightly so, that some discrepancy between the content of the rules addressed to the public and those
addressed to officials is not always regrettable. On the contrary, it enables the law, particularly in the criminal domain, to accommodate conflicting purposes. For example, the law may instruct
judges and other officials to interpret various offences in a very technical and rather restrictive manner, thus making sure that only
behavior which is surely and unquestionably wrong would be subject to punishment. At the same time, however, the law would achieve better deterrent effect, and perhaps, on the whole, better social results, if the general public’s perception of such offenses is more expansive. After all, the good citizen who wants to be guided by the law would want to be on the safe side, avoiding behavior which is on the verge of illegality. But again, in case the citizen
happens to stumble and finds himself in front of a court, the judge should also play it safe and convict the defendant only if she is very confident that the conduct was, indeed, legally wrong. Thus, the fact
that the rules are understood somewhat differently by the public and the judges enables both to be on the safe side
But, Marmor raises a complexity:
Consider a non-criminal case first: suppose we assume that similar considerations apply to contract law as well. Suppose that it would be better if people believed that their
contractual obligations are somewhat stricter than the technical-legal doctrines actually require. The problem with such a situation
is rather apparent here: the more there is a discrepancy between general perceptions and legal technicalities, the greater the relative advantage of those parties with better access to legal expertise, who are, most often, the wealthier parties or the repeat-players.
This raises concerns about equality - a systemic lack of congruence between general perception of the law and its actual application to specific cases normally plays into the hands of those who can afford better access to legal expertise
Thus, the social advantage of the incongruence between the rules which are addressed to the public and officials must be weighed against the potential inequality
Marmor
The inner morality of the law?
Fuller
Fuller has argued that these conditions exhibit the inner morality of the law - i.e. conditions the law must meet regardless of its content
Marmor
The inner morality of the law?
Hart and Raz
Marmor’s claim
They responded to these virtues of the rule of law as of merely functional (means of social control) and not moral values
But, marmor claims that his discussion of the values shows that they are also moral-political virtues - they enhance certain goods which we have reasons to value in addition to their functional merit
Marmor
The inner morality of the law?
Raz
Raz replies that even if the rule of law virtues are partly moral in content, they do not prove that there is necessarily some moral value in law - the rule of law are essentially ‘negative values’ because the conditions of the rule of law are designed to ‘minimize the danger created by the law itself’
‘the rule of law is a negative virtue in two senses: conformity to it does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself.’
- partly true- person who cannot harm another for their ignorance does not deserve moral blame… but marmor says that even if we discovered a world where people cannot kill each other, that would still be good even if they don’t deserve credit for it. Same can be said for legal system.
- Raz’s second prong is that the law simply avoids the danger created by the law itself- it mitigates the possible evils that the law could violate begin with
Marmor on the overlap between law and morality
Main point of legal positivism is that conditions of legal validity are determined by social facts
explains Hobbes, who viewed law as an instrument of the sovereign and subsequent positivists who adopt the rule of recognition
natural lawyers require a certain moral threshold i.e. the content of the rule and not only their social origin determine its validity
The separation thesis = separation between what the law is and what it ought to be
but, it has often been overstated = positive law does not necessarily deny that law is morally good or has some minimal moral content.
Legal positivism can accept the claim that law is by its very nature or its essential functions in society, something that deserves our moral appreciation and it is not forced to deny the many prescriptions which coincide with morality
It is therefore consistent with Fuller’s basis insight that the rule of law promotes certain goods which we have reasons to value regardless of their purely functional merit.
Murphy
The Moral Value of the Rule of Law
Defends Fuller’s view that the rule of law has conditional non-instrumental as well as instrumental moral value by virtue of the way a legal system structures political relationships
When the requirements of the rule of law are respected, it expresses the moral values of reciprocity and respect for autonomy
It is also instrumentally valuable because in practice it limits the injustices which governments pursue
Murphy
when lawmakers fall short of the idea of the rule of law
citizens build resentment - i.e. a frustrated legitimate expectation
this resentment is reasonable - what has been breached is fairness and reciprocity
Citizens also have no moral obligation to obey the law i.e. ‘certainly there can be no rational ground for asserting that a man can have a moral obligation 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.’
Fuller’s account therefore provides a way that the rule of law limits arbitrary exercise of power
Murphy
On Argentina
Argentina in late 1970s asked for obedience and on paper claimed to respect the rule of law but kidnapped possible dissenters
This breached the basis upon which any moral duty of obedience depends
violations of the rule of law eroded trust of citizens and alienated them from the judicial system - the incongruence between written law and official action meant little reason to abide
Undermine reciprocity
Murphy
On Raz’s objection
Rule of law is of purely instrumental value
Essential feature of Raz’s view is that it claims to offer authoritative reasons for actions
- agrees that realising the rule of law is a matter of degree
- but rejects claim law has non-instrumental value
In the Argentina case, Raz would say that official denial of illegal practices would violate the rule of law but this does not add anything to the explanation of the moral wrongness of those actions - the reciprocity and duties undermined by the violations of the rule of law are for Raz morally insignificant
Murphy
Response to Raz’s objection
From the perspective of the kidnapped person, the wrongfulness is not affected by the fact that the rule of law has been violated
But if we shift the perspective to institutional level, the values of reciprocity and respect for autonomy expressed by the institutional framework are undermined
When society abandons the rule of law it replaces it with institutions that do not respect autonomy (i.e. not clear prospective)
Murphy
Example used to object moral value of law
Legislator passes law to exempt themselves from accountability - it could be clear, promulgated, consistently enforced etc.
Key = bad regimes can respect the rule of law - in fact, Raz notes that racial, religious and all manner of discimination are not only compatible but often institutionalised by general rules! Apartheid South Africa
Surely policemen would have better respected the dignity of black South Africans by not adhering to the laws?
Murphy
Her response to examples showing the rule of law being used instrumentally for bad ends
Rather than showing that the rule of law is ONLY instrumentally valuable, shows that there are certain contexts in which reciprocity and respect for autonomy constitutively expressed by the rule of law fail to be realised at all
Illustrates that rule of law and its constitutive values can be achieved to greater/lesser extent in different contexts
Quoting Waldron the scrupulously legalistic Nazi cannot be reconciled with the rule of law, unless we think that the rule of law is a matter of cosmetics
Murphy
Rule of law’s unease with democratic rule
If a government wants to “frighten [citizens] into impotence” (Fuller) such that they are willing to do whatever the government demands, then respecting the rule of law is incompatible with that
end. For example, terror is “‘the arbitrary use, by organs of the political authority of severe coercion against individuals or groups, the credible threat of such use or the arbitrary extermination of such individuals or group” (Linz)
The use of terror can facilitate the creation of an uncertain environment where citizens cannot predict how the government will respond, whereas the rule of law creates a predictable environment
But, it is also inefficient for dictators or authoritarian rulers to limit their powers by actually respecting the requirements of the rule of law, there is no great reason to maintain the facade of legality
Murphy
Discussion on the need to be moral
The narrative allows judges in Apartheid south africa to justify their rulings, why ideologies are effective in facilitating oppression and this narrative extends to nations
Murphy
Why rule of law prevents wrongdoing
Eugene de Koch (commanding officer of death squads) was interviewed by psychologist Pumla Godobo-Madikizela
he stated that “the dirtiest war you can ever get is the one fought in the shadows … There are no rules except to win. There are no lines drawn to mark where you cannot cross. So you can go very low - I mean very low - and it still doesn’t hit you”.42
Denial of responsibility for atrocities or wrongdoing, or recognition that you are doing wrong, is much easier to maintain when your actions are secret.
Thus, the rule of law has instrumental value in limiting the kinds of injustices that can be pursued - i.e. if regimes did openly pursue immoral ends
Murphy
How there was no rule of law in SA
Judges should have openly recognised the fact that commitment to Apartheid required rejection of foundational principle of the common law legal system - by obscuring the contradiction, south african judges failed to uphold the rule of law!
Murphy
What about the passing of a particular immoral or unjust law?
Murphy argued against systemic injustice and rule of law
But it is possible that particular laws accord with the rule of law - indeed in context of terrorism, this may be likely!
Murphy on conclusion re value of rule of law
As Raz rightly states, “The rule of law is a political ideal … It is … just one of the virtues which a legal system may possess and by which it is to be judged”.
It is important not to exaggerate the value or scope of respect for the rule of law and not to conflate different ideals of political morality.
Her conclusion is that we should not downplay the importance of reciprocity, which underpins the rule of law, which is absent in so many societies
Allan
2 contrasting images of the law which reflect different conceptions of the primary nature and proper function of the law
- law is an instrument for the effective implementation of government policy bu rules or requirements that carry a mark of state authority (Hart’s account). The law must be harnessed to a framework that limits its potential for arbitrariness. The rule of law, accordingly, requires state coercion to be limited and regulated by published or promulgated and determinate rules, issued or enacted according to settled public procedures.
- emphasises the role of law in resolving disputes in accordance with standards of justice or fairness (Raz). Courts are supposed to reflect moral rights and duties
Allan
Formal conception of rule of law
rule of law exists as a bulwark against arbitrary power
no implications for the substance of law: the pertinent rules (or officially acknowledged public policy
criteria) may have any content, as long as they are consistently and faithfully applied.
consistent with simple majoritarian conception of democracy: there must be full and faithful adherence to whatever scheme of regulation has been endorsed by the majority
Allan
Substantive conception of rule of law
where law is a means for the resolution of disputes in accordance with justice
more ambitious, substantive conception
requires more than impartial administration of law, whatever its content
demands, in addition, that the law should embody a coherent and consistent scheme of justice, treating all alike according to the standards
of that scheme.
Formal equality before the law—the equal subjection of all, regardless of rank or status, to general rules—is underpinned by a deeper conception of equal citizenship: there must be equal protection of the law in the sense that rights or benefits enjoyed by some cannot be unfairly denied to others.
Allan conclusion
I have argued that the principle of the rule of law can be fully understood only in connection with a certain view of the related ideals of human dignity and individual liberty. While the various formal precepts of Fuller’s ‘inner morality’ of law play an important role in curbing the risk of arbitrary legislative power, they are only part of a larger, more complex conception of legality. In safeguarding freedom as independence, the canons of formal legality contribute to a scheme of governance that, in all its aspects, renders state coercion legitimate by adherence to fundamental constraints.
The rule of law permits coercion only to secure the conditions in which each person’s liberty can be exercised compatibly with a like liberty for all; and liberty is to be understood as the sense in which each individual is sovereign in setting and pursuing his own ends, consistently with others having the same freedom. Properly understood, the rule of law is not a shield against the abuse of law, as it is sometimes portrayed.
It is the moral ideal of governance according to law in its primary sense—the sense
in which it enforces a scheme of rights and duties that provides for each individual a
domain of liberty, secure from the threat of domination either by public officials or
powerful private interests.
Allan conclusion
procedural fairness and due process
there must be a separation of powers between parliament, government, and judiciary, enabling the courts
to act impartially and independently. Only under those conditions can the law be fairly applied in accordance with its true meaning, which may differ (in any particular
instance) from the expectations of certain legislators or the preferences of other public
officials. And the demands of due process are inextricably bound up, in practice, with
the law’s permissible content: the exercise of administrative discretion must respect
the citizen’s fundamental rights and the limits of legitimate government. No powers
can be lawfully conferred on a public agency that would violate constitutional rights; a
statutory mandate must always be interpreted in the light of the proper limits of state
authority.
Daly on Allan’s book ‘the Sovereignty of Law’
At the heart of this book is the distinction made by H.L.A. Hart between the “external” and “internal” point of view. Allan, following Ronald Dworkin, takes an avowedly interpretivist approach, privileging the internal point of view. An external observer might say of a jurisdiction in which Parliament is sovereign that a statute requiring that all blue-eyed babies be put to death is legally valid. To view matters from the external point of view, however, is to adopt the wrong perspective as far as the common law is concerned. What matters is how lawyers (and citizens) would interpret any such statute:
The popular notion that parliamentary sovereignty ultimately overrides the rule of law is erroneous. Parliament’s authority is constrained by its dependence on language; and words take their colour from the broader context in which they are used. We determine the content of Parliament’s instructions in the light of those fundamental principles of law that give the British constitution its continuing authority and conceptual structure…the content of law is, instead, a complex matter of interpretation, in which statutory provisions must be integrated within an existing web of legal regulation, based on both common law and statute…(pp. 35-37)
Krygier
Legal Pluralism and the Value of the rule of law
Waldron
He notes that ordinary people do not have in the forefront of their mind the conception held by philosophers.
He purports to capture such features by supplementing Fuller style formal features with elements of legal procedure and institutions like courts that embody them.
He commends a list of ten such features, mainly to do with the fair, impartial, open and appealable conduct of legal hearings before‘a legally trained judicial officer’ and with a ‘right to representation by counsel’. The point is to ensure that ‘no one should have any penalty, stigma, or serious loss imposed upon him by government, in the absence of such legal procedures. This is an important supplement, with a morally well-motivated core–respect for human dignity–that has no geographical, ethnic, or religious boundaries
Krygier
What is the big shift rom Fuller to Waldron?
From official legislatures to official courts.
That is not an enormous distance to travel, even from the point of view of a domestic lawyer who doesn’t get out much. In comparative or socio-logical perspective, such procedures move barely an inch from the formalities they supplement.
Krygier
What of keeping faith with ‘what ordinary people are urging’?
welcome recommendation. The rule of law is not an arcane and hermetic coinage of Western jurists. It is a common English term, with analogies (though rarely exact equivalents) in a variety of languages.
It is not the property of analytical philosophers or to go around reproaching laymen for not using it in the way that Raz uses it
Krygier
Does Waldron go far enough?
No
he would doubtless agree, the vulnerabilities, aspirations, and values that lead people to clamour for the rule of law are not primarily to be judged by what it does for lawyers, still less legal philosophers. If the rule of law is a good, it is a social good, and it is challenged, inter alia, by social bads. Not all of these have much to do with what goes on before judicial tribunals. If Afghan citizens, for example, or Syrians or others, lament the absence of the rule of law in their societies, is it obvious that they are talking only about receiving unclear legal messages from the government (Fuller), or having a hard day in court (Waldron)?
Perhaps the irrelevance of the law or any other institutional constraints, to the ways power is experienced in their everyday lives, might matter to them more immediately, and even more, than their (likely rare) appearances before judicial tribunals (where they exist).
Krygier
What does Krygier propose?
We should be open to expanding the social and institutional range of our ‘conceptual geography’ (Judt)
Krygier
Four puzzles about the rule of law
Some competing understandings of the rule of law
- formal i.e. Fuller’s 8 desiderata
- Dicey’s focusing on three distinctive elements of British institutional order - inability of officials to exercise ‘wide, arbitrary, or discretionary powers of constraint’. - lawyers may follow Dicey and just list what they like about their own legal orders.
- fashionable to believe that RoL on arguable but not insubstantial grounds that the RoL is a necessary means to achieve various valuable ends beyond the RoL - but leads to rule of lawyers, rather than ROL (though they may overlap)
Krygier
Thick and thin ROL
Thick = includes substantive content
thin = focuses on form
Krygier
Key starting question is WHAT is the ROL for?
- the conceptual reason
It is a teleological notion- understood in terms of its point and not an anatomical one, concerned with morphology
it is a relative and variable achievement, not all or nothing
the rule of law is in relatively good order insofar as some
possible behaviors, central among them the exercise of political, social, and economic power, are effectively constrained and chan
neled to a significant extent by and in accordance with law so that nonarbitrary exercises of such powers are relatively routine, while
other sorts, such as lawless, capricious, willful exercises of power, routinely occur
Krygier
Key starting question is WHAT is the ROL for?
- empirical argument
Certain indicators like judicial independence may not be as good as we first think
i.e. regimes may grant judicial immunity because the judiciary reaffirms corruption, certain values
Holmes notes that judicial independence is an ambivalent achievement e.g. post-authoritarian societies:
the judiciary is an “orphaned institution,” suddenly freed from
the tutelage of a now-defunct political authority, which it once approached on bent knees. Such surviving fragments of a dead authoritarian system are typically populated by sclerotic professionals wedded to old fashioned ways of doing business. The ideology of
judicial independence, if accepted unthinkingly, can be used to obstruct or postpone their re-education
Endicott
The Impossibility of the Rule of Law
His abstract
communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law
is not necessarily unattainable.
Endicott
The Impossibility of the Rule of Law
Only way in which the rule of law is unattainable
Governments (and officials) do not always follow the law, so the ideal fails. Basically, people do not follow the rules.
However, ‘this is the only respect in which the ideal is unattainable’
Endicott
organising principle of the requirements of ROL
Raz: ‘the law must be capable of guiding the behaviour of its subjects.’
Endicott
On clarity
Argues that vagueness is not necessarily against the rule of law
Endicott
the content of the ideal
A community attains the ideal of the rule of law when the life of the community is governed by law. So the rule of law can be opposed to anarchy, in which the life of the community is not governed. The rule of law can also be opposed to
arbitrary government. So Aristotle wrote that it was better for the law to rule,
than for any one of the citizens to rule.
Endicott
Resolution
Quote on Aristotle
Where it seems that the law cannot draw a boundary, it would seem impossible for a
human being to identify one. Yet the law trains officials for that very purpose, and
appoints them to judge and to regulate that which it leaves undetermined, as rightly
as they can.
Aristotle, Politics III.16
