Rule of Law: What Is It?
The rule of law is a term bandied about a great deal, but one rarely hears anyone even attempt to define the term/concept. Anyone out there have any ideas?
My sense is that rule of law is a question of (properly functioning) institutions. (This should not come as a surprise to those of you who know me.) The basic idea is one of a disinterested decision-maker. If one (a person, a group, an official) serves as judge in its own case, then there isn't rule of law. Somehow, one must empower decision-makers at least one remove away from the interests involved in a conflict to resolve that conflict, and then empower that decision-maker and its decisions, i.e., enforce those decisions, even when they are contrary to the interests of the powerful. To strengthen the institutions, one needs norms against interested decision-making, conflicts of interest, etc. But the norms alone aren't the end of the story. This is more than a question of personal integrity.
Now, no set of institutions will ever function perfectly. Indeed, decision-makers will sometimes act in an interested manner, even when they should not. Sometimes decision-makers will be too close to the interests involved in a dispute (I'm looking your way, Congress).
Now, I don't want to be U.S.-centric here. I don't think that rule of law requires full-blown judicial independence, as in our federal system. But it does require (1) some kind of insiulation between the resolution of disputes and the parties to those disputes; and (2) some mechanism to enforce insulated decisions.
In addition, rule of law can be a question of executive-legislative relations, even of bicameralism. It need not involve the courts at all. Thus, no interest should legislate in its own interests, directly.
I'm not sure that rule of law is essentially a question of equality before the law, as the good judge Alito offered up today at the hearing. I mean, if the law itself is unequal, then application of the same law to different persons might not result in equality, but the judges involved would still have applied the law. For example, if the law said that blacks can't attend the same schools as whites, as it once did, then equality before the law would simply require the denial of attendance of white schools to all blacks, regardless of their social position. But I think that it would be hard to call that "rule of law." Even if the judges applying the law were doing their utmost to avoid their own personal views. This seems to suggest that rule of law is more than a formal, equality constraint. It has substantive content, too. But what is that content?
This formal equality conceptualization ("all are equal before the law") seems to be everywhere in the present day. Rule of law must be more than application of the law, per se. But when it comes down to it, it's hard to pin down . . . . These are some preliminary thoughts. I've just been hearing so much about rule of law, and I always get frustrated by the vacuity of the rhetoric. What is it? Let's discuss.
posted by Number Three @ 6:35 PM
3 Comments:
"Rule of law" is usually contrasted with its (ostensible) opposite "rule of men." If this contrast contains any meaning, it is that an essential element of "rule of law" is a set of constraints on authority. Decisionmakers cannot simply impose their arbitrary will, but have to act in accordance with established rules.
From this perspective, "rule of law" is more of a constraint on executives than on legislatures. Executives are bound to follow the law, rather than acting on their own judgments of what's expedient or right.
For legislatures to adhere to "rule of law", by contrast, only requires them to follow the established process for making laws. The principle imposes no limits on what laws can be made. Discriminatory, stupid, irrational, or unfair laws hardly seem to be ruled out.
To my mind, "rule of law" has nothing to do with "equality before the law." Rule can be according to law without being in any sense just or fair. It's merely a formal requirement: acting in accordance with established rules laid down by a lawmaking body.
"Rule of law" is a low bar, not something to be celebrated as the end-all-and-be-all of good government. It's just a start. One then wants to make the laws good ones.
The first half of Frances's post is dead on, but I'd take issue with the second half (on equality).
The debate over "rule of law" draws heavily on the Aristotlian distinction with "rule of man" that Frances describes. The famous quote, I believe, is that law is "reason purified of passion," and Aristotle suggests that what you lose in flexibility you gain many times over in impartiality. Locke turns this into the idea of government as neutral "umpire" elevated above the conflicting self-interests of individuals in the social contract. For both Locke and Aristotle, rule of law is a key factor in preventing "tyranny," a regime in which one man rules by passion in his own interest at the expense of the whole nation and its rational public interest (hence the justifiable suspicion of unchecked executives). So, ultimately, rule of law is not just about procedure, it's about creating those substantive procedures that will best protect against both the self-interest of those in power and their corruption by other partial (or "special" as we call them) interests, such as DeLay and Abramoff. And as the muckrakers often say, "the real crime in Washington is what's legal." This is also why Montesquieu, for example, argued that good government, guided by rule of law, must be "moderate" government.
To put the substantive vs. procedural distinction in a more practical context, take a 20th century example. The most vicious modern regimes (Nazi, Soviet, etc.) have used law and bureaucracy, backed by the power of at least a semi-popular "movement" to systematically oppress their populations and eliminate basic individual rights. Law became part of the nexus of oppression. And yet, I don't think we'd say that those regimes maintained a "rule of law" even if they may have often met the basic procedural requirments, because they lacked the substantive legality that prevented partiality, state violence, and arbitrary power. One of the substantive requirments that must be embodied in law in order for it to truly qualify AS "law" is equality. King made this point in "Letter from Birmingham Jail" when he copped from Augustine to say that "an unjust law is no law at all." This equality need not be radical in the Marxist sense (indeed, much better if it's not); but it does mean that access to the means of power are afforded on equal terms to all citizens, that the law does not impose arbitrary distinctions between citizens (hence 14th am. EP), and that those in power are not able to exempt themselves from generally applicable rules, a condition that also applies to the rules they actually create.
I'm much more of a proceduralist in my understanding of "rule of law." To my mind, law is merely general rules applied to specific cases. "Rule of law" is just a situation where rules are in force, and rulers can't make arbitrary exceptions for themselves or for anyone else.
Sharia or Islamic Law specifies that a woman's testimony in court is worth half that of a man's or a sister receives half the inheritance of a brother. If this law applies across the board--with no arbitrary exceptions--I'd say you have rule of law. With all due respect to MLK, unjust laws are still laws.
I'd also draw stronger distinctions than TenaciousMcD does between modern bureaucratic hierarchy and rule of law. Nazi Germany had the former but not the latter, with killings, beatings, and confiscations carried out without legal sanction or any procedural rights, often by partisan militias.
Now one could take this proceduralism too far. If, for example, you're John Yoo and you think that Article II of the Constitution gives any and all powers to the president whenever he says the magic words "national security," there's no longer any difference between "rule of law" and "rule by men." Yoo's Constitution confers kingly power on the president.
Only in Yoo's "vanishing point" sense was Nazi Germany a system of rule of law. The 1933 decrees suspended all civil liberties otherwise guaranteed under the German Constitution as a "defensive act against communist acts of violence, endangering the state." Then the enabling act specified that henceforward the Reich cabinet could make laws without the Reichstag. So those were the "laws" that made possible a fundamentally lawless system. (Yoo would be right at home.)
But short of such vanishing points, I'd still be inclined to maintain that you have rule of law whenever you have general laws in force that constrain the use of executive power, even if those laws leave much to be desired on the justice front.
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