The rule of law concept - Государство и право доклад

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The rule of law concept

The Rule of Law is what some philosophers have called an essentially contestable concept. Grounds of agreement and disagreement. Four ideal-typical conceptions of the Rule of Law. Toward an integrated theory. An ideal that can never be realized perfectly.


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The Rule of Law is a historic ideal, and appeals to the Rule of Law remain rhetorically powerful. Yett hep recisem eaning of the Rule of Law is perhaps less clear than ever before. Many invocations are entirely con-clusory, and some appear mutually inconsistent. To clarifyt he values that are invokedb y diversea nd sometimesc onflict-ing appeals to the Rule of Law, ProfessorF allon developsfo ur ideal types which reflect the unstated assumptions that underlie familiar Rule-of-Law-based arguments. But the ideal types which tend to identify the satisfaction of particularc riteriaa s eithern ecessaryo r sufficientf or the Rule of Law, are also incomplete.M oret han is usually appreciated,th e Rule of Law needst o be understooda s a concepto f multiple,c omplexlyin terwovens trands. In the final section of the Article, Fallon discusses the relative priority of various strands of the Rule-of-Lawid eal in diversei nstitutional settings.
The Rule of Law is a much celebrated, historic ideal, the precise meaning of which may be less clear today than ever before. Signifi-cantly, however, the meaning of the phrase "the Rule of Law"-which I shall refer to as "the Rule-of-Law ideal"-has always been contested. Within the Anglo-American tradition, perhaps the most famous exposi-tion came from a turn-of-the-century British lawyer, A.V. Dicey, who asso-ciated the Rule of Law with rights-based liberalism and judicial review of governmental action. Some have traced the modern ideal to Aristotle, who equated the Rule of Law with the rule of reason;3 others have identified the Rule ofLaw with natural law or respect for transcendent rights. In another famous account-perhaps the most influential of the past half-century-Lon L. Fuller argued that the Rule of Law requires publicly promulgated rules, laid down in advance, and adherence to at least some natural-law values. By contrast, positivists have insisted that the Rule of Law is one thing, its moral virtue or abomination something else. In American legal discourse, debates about the historical and conceptual foundations of the Rule-of-Law ideal are seldom engaged directly. Indeed, many invocations of the Rule of Law are smug or hortatory. Within the twentieth century, however, references to the Rule of Law have increasingly acquired either defensive or accusatory tones.The sources of unease are multiple, and possibly even conflicting. But any account should begin with the familiar contrast between "the Rule of Law" and "the rule of men [sic]."10 Within perhaps the most familiar understanding of this distinction, the law-and its meaning-must be fixed and publicly known in advance of application, so that those apply-ing the law, as much as those to whom it is applied, can be bound by it. If courts (or the officials of any other institution) could make law in the guise of applying it, we would have the very "rule of men" with which the Rule of Law is supposed to contrast. This account is undoubtedly far too crude; one of my principal aims in this Article is to qualify and revise it. Nonetheless, the caricature con-tains a glint of truth, which helps to illuminate the doubt and confusion that have increasingly surrounded debates about the Rule of Law and its implications for American constitutional democracy. In particular, un-certainty and confusion have mounted among those who, on the one hand, are disposed to accept (or at least find it hard to reject) the rough sketch of the Rule of Law drawn above and yet, on the other hand, be-lieve that the American legal system must surely count as a paradigm of the Rule of Law. Respect for the Rule of Law is central to our political and rhetorical traditions, possibly even to our sense of national identity. Yet the modern American legal system departs significantly from the pro-visional account of the Rule of Law that I just provided, and it is strongly arguable that no plausible legal system could avoid departing from it in some respects. A mix of political, jurisprudential, and intellectual currents has pro-duced this state of affairs. Politically, twentieth-century legislatures have vastly expanded the sweep of governmental regulation,13 and they have frequently relied on administrative agencies with vague mandates and a mixture of enforcement, rulemaking, and adjudicative powers to imple-ment regulatory policies.' Administrative adjudication has sometimes been an explicit occasion for policymaking. Jurisprudentially, courts have often strayed from the originally understood meaning of statutory and constitutional provisions.16 Intellectually, the Legal Realists and their followers have advanced powerful claims that there is broad room for judicial choice about which rule to apply to particular facts, about how rules should be formulated, and about whether exceptions to recog-nized rules should be permitted. Even some ardent defenders of liberal legal institutions have acknowledged that legal interpretation is inher-ently "political."'8 If administrative agencies can mix executive, lawmaking, and judicial functions in implementing vague statutory mandates; if courts are not bound by the originally understood or intended meaning of authoritative legal texts; and if rules do not determine outcomes, then what, if any-thing, could be left of the Rule of Law? The Rule of Law is a regulative ideal, not a mirror of what is done. The possible implication that our institutions require sweeping reforms therefore deserves to be taken seri-ously. At the same time, questions arise about what claims a purported ideal could plausibly exert on us if it is too far out of touch with reality. Perhaps the Rule-of-Law ideal itself needs reform. Or, upon reflection, should invocations of the Rule of Law be dismissed as empty, rhetorical appeals to an ideal whose time is past? This Article addresses these and other issues involving the Rule of Law as a concept in contemporary debates. A principal ambition is clarificatory: to develop a framework within which to analyze competing claims about the Rule of Law in legal and political discourse. To provide a foundation for this enterprise, Part I sketches the elements generally recognized as constitutive of the Rule-of-Law ideal. Although agreement on these elements establishes the Rule of Law as a shared concept, many of the operative terms are vague. Understanding the vagueness of particularshared assumptions helps to clarify possible bases for disagreement. And disagreement is common. Indeed, in contemporary constitutional discourse it is by no means anomalous to find competing Rule-of-Law claims arrayed against each other. In PlannedP arenthoodv . Casey,f or example, the plurality (joint) opinion argued that the Rule of Law required fidelity to the central holding of Roev . Wade,while the dissenting opinion insisted that respect for the Rule of Law required Roe to bereversed.To elucidate the divergent assumptions that frequently underlie such competing claims, Part II develops four models, which I initially present as ideal-typical conceptions of the Rule of Law. These ideal types respectively conceive the Rule of Law in terms that I shall describe as (i)historicist, (ii) formalist, (iii) Legal Process, and (iv) substantive. Nearly all claims about the entailments of the Rule of Law, I argue, rest on assumptions modeled by one or more of these ideal types. But the four ideal types, though heuristically useful, are also incomplete. Somewhat more specifically, each identifies the satisfaction of particular requirements as being both necessary and sufficient for the Rule of Law and treats the values that are privileged by the other ideal types as essentially irrelevant. This tendency to absolute prioritization of preferred values and total exclusion of others opens all of the ideal types to telling criticism. The deficiencies begin to emerge, somewhat dialectically, in Part III, which considers the respective ideal types' implications for issues of constitutional interpretation. As a continuing indication of their utility, the ideal types frame important questions-whether, for example, the Rule of Law requires decision in accordance with the plain language or "original understanding" of legal texts, or is necessarily or ideally a law of rules, or requires that the law possess particular substantive content. But the incompleteness of the ideal types also becomes clear when they are tested by some of the Rule-of-Law issues that arise in constitutional interpretation. In addition, as Part III demonstrates, many participants in debates about the Rule of Law draw on different ideal types in making different claims at different times. Against this background, Part IV develops my principal affirmative thesis: The Rule of Law is best conceived as comprising multiple strands, includingvalues and considerations to which each of the four competing ideal types calls attention. It is a mistake to think of particular criteria as necessary in all contexts for the Rule of Law. Rather, we should recognize that the strands of the Rule of Law are complexly interwoven, and we should begin to consider which values or criteria are presumptivelyp rimary under which conditions. A problem, at least in the short run, is that many and perhaps most of those now invoking the Rule of Law probably lack any theory that explains how the ideal's various strands relate to each other. For now, Part IV concludes, most judgments of consistency and inconsistency with the Rule of Law should be regarded as relatively ad hoc and conclusory (even though the features to which they call attention are clearly identifiable in light of the ideal types).Part IV also considers, but ultimately rejects, the proposal that becauseof the ad hoc and conclusory nature of most Rule-of-Law arguments, the Rule of Law should be dismissed as an ideal that has outlived its usefulness. This proposal assumes that appeals to the Rule of Law can be analyzed without loss as appeals to other values. Part IV refutes this assumption. It argues affirmatively that the Rule of Law should be conceived as an architectonic ideal that not only subsumes but establishes priorities among its component elements. Part V offers some thoughts about the contours of a full and defensible theory of the Rule of Law. The Part begins with some observations concerning the purposes that such a theory should be crafted to serve. It also outlines considerations bearing on the relative significance, in diverse contexts, of the values reflected in the various Rule-of-Law ideal types. A methodological caveat may be in order. My aim in this Article is to examine the ideal of the Rule of Law through the lens of American constitutional law, but my focus on constitutional issues is meant to be illustrative, not exhaustive. Certainly a theory of the Rule of Law should address issues involving statutes, statutory construction, and the common law. My claim is only that issues of constitutional theory illuminate many of the challenges that a successful theory of the Rule of Law would need to meet, not that a theory of the Rule of Law should be concerned with such issues exclusively. My preoccupation with distinctively American institutions, phenomena,and issues might give rise to a related objection. A theory built on this foundation, it might be protested, would not be a theory of the Rule of Law, but at most a theory of the Rule of Law in the American legal system. Although this objection may hold some truth, a general theory of the Rule of Law, disconnected from any legal system in particular, would necessarily be thin and abstract. The Rule of Law is a human ideal, and theories of the Rule of Law are inevitably framed to serve political or moral interests. For us, the ideal of the Rule of Law is perhaps most meaningful as a standard deployed in contemporary, domestic, legal, and political debates. If a theory that is fitted to our most pressing purposes is best characterized as a theory of the Rule of Law in the American legal system, so be it.
I. G rounds of agreement and disagreement
The Rule of Law is what some philosophers have called an "essentially contestable concept": it has evaluative as well as descriptive elements, and its correct application cannot be fixed simply by appeal to ordinary usage. In more concrete terms, the "true," "best," or "preferred" meaning of the Rule of Law depends on the resolution of contestable normative issues; disagreements are therefore to be expected. Nonetheless, there is enough common ground for it to be relatively clear how particular disputes fit into broader patterns. Efforts to specify the meaning of the Rule of Law commonly appeal to values and purposes that the Rule of Law is thought to serve. Three such purposes-against which competing definitions or conceptions can be tested-appear central.
First, the Rule of Law should protect against anarchy and the Hobbesian war of all against all.
Second, the Rule ofLaw should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various ac-tions.
Third, the Rule of Law should guarantee against at least some types of official arbitrariness. Against the background of these purposes, leading modern accounts generally emphasize five elements that constitute the Rule of Law. To the extent that these elements exist, the Rule of Law is realized.
(1) The first element is the capacity of legal rules, standards, or prin-ciples to guide people in the conduct of their affairs. People must be able to understand the law and comply with it.
(2) The second element of the Rule of Law is efficacy. The law should actually guide people, at least for the most part. In Joseph Raz's phrase, "people should be ruled by the law and obey it."
(3) The third element is stability. The law should be reasonably stable, in order to facilitate planning and coordinated action over time.
(4) The fourth element of the Rule of Law is the supremacy of legal authority. The law should rule officials, including judges, as well as ordi-nary citizens.
(5) The final element involves instrumentalities of impartial justice. Courts should be available to enforce the law and should employ fair procedures.
Generally acknowledged elements suffice to mark a single, shared concept of the Rule of Law, but they also leave room for significant dis-agreement and misunderstanding. First, several of the elements-such as the requirement that the law should be "reasonably stable"-are vague. People obviously will disagree about how vague terms are best understood. Second, no agreed standard exists for measuring the relative signifi-cance of departures from the Rule of Law's different elements. Nor is there agreement concerning which kinds of departures are the primary objects of concern. The Rule of Law is an ideal that can be used to evalu-ate laws, judicial decisions, or legal systems. A legal system that on the whole comports with the Rule of Law may nevertheless include regula-tions or decisions that do not. Third, the extent to which a legal system approaches the Rule-of-Law ideal is itself a matter of degree. Probably no legal system realizes any of the desiderata perfectly. Moreover, the defining elements of the Rule of Law can sometimes conflict. For example, a relatively vague legal standard may be less capable of effectively guiding conduct than a clear rule,36 but a judicial decision replacing a standard with a rule might de-part from the element of stability. In addition, if a court were to substi-tute a clear rule for a legislatively adopted standard, the question would arise whether the court, in promulgating the rule, was itself ruled by law in the relevant sense. Fourth, and most important, it seems impossible to specify the elements of the Rule of Law without reference to "the law." Among the most crucial questions, however, is what this reference can, should, or must mean, especially insofar as the Rule of Law implies that officials, including judges, must be ruled by law.37 For example, does the ideal of judges acting under the law require that their decisions be determined by rule? Does it demand that they be bound by the original understanding or the Framers' intent? Does it suffice if judges, though not strictly bound by rule or the original understanding, are constrained by legal conventions and requirements of reasoned justification? Does the ideal of law necessarily import moral standards? These, obviously, are among the leading questions of jurisprudence, and it may ultimately prove impossible to reach a deep understanding of the Rule of Law without exploring their complexities. My aim, however, is to abbreviate the inquiry. To come to these questions as part of an inquiry into the Rule of Law alters their significance. If the Rule of Law is an ideal, which can be approached more or less closely, then the concept of "law" that the Rule of Law presupposes may admit of more and less ideal approximations. In other words, "law" may be more or less law-like (in the ideal sense of the term). This should be agreed in principle even among those with strong disagreements about how, precisely, the ideal of law presupposed by the Rule of Law ought to be conceived. For example, even a positivist, who thought law conceptually distinct from morals, might believe that the ideal of the Rule of Law could be more or less closely realized, depending on the extent to which prevailing legal norms were clear and complete and thus minimized reliance on judicial discretion.
II. F our rule of law ideal types
This Part develops four ideal-typical conceptions of the Rule of Law: a historicist, a formalist, a Legal Process, and a substantive ideal type. Each of these ideal types reflects assumptions about what law must or should be to fulfill the requirements of the Rule of Law that are familiar in constitutional discourse. Moreover, each represents a plausible approach to the protection of values reasonably associated with the Rule of Law. Although I do not wish to defend any of the ideal types as offering an adequate theory of the Rule of Law, this Part does try to establish that none is incoherent. I should emphasize at the outset that the Rule-of-Law ideal types are not intended to mirror the views of any particular person, but are more nearly ideal types in the Weberian sense-clarifying abstractions, intro-duced for heuristic purposes, that may be approached more or less closely. When I associate particular individuals with one of the ideal types, I do not mean to imply that those individuals' theories of the Rule of Law are limited in the ways that the ideal types are limited-only that the ideal types help to illuminate an important strain in their thinking. A. The Historicist Ideal Type Historicist conceptions associate the Rule of Law with rule by norms laid down by legitimate lawmaking authorities prior to their application to particular cases. At least two concerns animate this approach. First, historicist conceptions aim to explain howjudges (as well as ordinary citi-zens) can be ruled by law, rather than creating it in adjudication. The second aspiration, which is equally important, is to respect an ideal of legal legitimacy by associating the law's substantive content with past, publicly accountable acts by decisionmakers who are recognized under historically established norms as possessing legitimate lawmaking power.43 Theories associated with the historicist ideal type typically regard lawmaking as irreducibly political and rife with potential for arbi-trariness and partisanship; many proponents appear to view lawmaking as politically legitimate only when it satisfies relatively stringent norms of democratic accountability. The historicist ideal type of the Rule of Law is intended to model some of the shared assumptions of-while avoiding commitments on the issues that divide-approaches to constitutional and statutory interpretation that became prominent during the 1980s.45 With respect to constitutional interpretation, "originalism"h as emerged as the generic name for theories maintaining that constitutional meaning should be fixed, as determinately as possible, either by the "original understanding" of the constitutional language or by the "intent" of the Framers and ratifiers. Selfstyled originalists have tended to minimize the difference between "original understanding" and the Framers' "intent" as the focus of interpretation. For the most part, I shall use the term "originalism" to refer to both approaches, but will treat theories that would fix constitutional meaning by reference to "original understanding" as more standard. Critics of constitutional originalism, often steeped in "hermeneutic" theory, have argued that the originalist project would be difficult or even impossible to effectuate. It is clear, for example, that neither the intent of a group of lawmakers nor the original meaning of a legal text is a simple historical fact awaiting discovery by diligent researchers. Intent is a complex and multifaceted concept. And fixing the relevant intent of a multi-member body, concerning specific issues that some members never considered and as to which others may actually have diverged, is a constructive enterprise from which an interpreter's assumptions, values, and goals can never be excluded entirely.50 Identifying the original un-derstanding of a legal text similarly depends on an ascription of pur-pose; especially as historical circumstances change, the ascription of purpose inevitably occurs in light of the assumptions, values, and goals of an interpretive community, if not an individual interpreter.Although critics have often viewed these arguments as devastating to positions associated with the historicist ideal type, defenders have gener-ally dismissed the attacks, a nd not wholly without reason. If the Rule of Law is an ideal, to show that it can never be realized completely by no means establishes that the ideal should be abandoned. Sensible defend-ers of the methods associated with the historicist ideal type claim no more than to approximate the Rule of Law as closely as possible. As if in response to this modest account of originalism's aims, a re-lated objection holds that its underlying ideal is not simply difficult to realize, but literally incoherent. On this view, conceptions of the Rule of Law that appeal to historical meaning characteristicallya ssume an unten-able dichotomy between subject (the interpreter) and object (the origi-nal meaning to be recovered). In fact, the argument maintains, both subject and object are situated in and at least partly constituted by a par-ticular, shared history and culture: neither can be conceived indepen-dently of the hermeneutic circle in which both are located, and the ideal of recovering a "meaning" that is independent of the interpretive con-text, including the interests and values of the interpreter, is not just im-possible, but senseless. The critics are correct that a historicist ideal type of the Rule of Law, in order to be coherent, must be conceived as internal to a legal culture, form of life, hermeneutic circle, or interpretive community; meaning cannot be conceived as independent of culture, context, or shared under-standings. After the unavoidable relevance of these variables is acknowl-edged, however, it remains tenable to distinguish between hermeneutic efforts to understand a text or legal norm and attempts to craft histori-cally based rationalizations for results reached on other grounds. The historicist ideal type needs to insist on no more. The hermeneutic ideal is surely coherent; and, depending on the richness of historical under-standing, it can be approached more or less closely. In short, "original-ism," "original understandings," and the historicist ideal type can be con-ceived in ways that survive the principal insights of hermeneutic theory. Following the principle of interpretive charity, I shall use these terms ac-cordingly in the balance of this Article.
According to a formalist conception of the Rule of Law, the ideal if not necessary form of "law" is that of a "rule," conceived as a clear pre-scription that exists prior to its application and that determines appropri-ate conduct or legal outcomes.58 Underlying the formalist ideal type is a picture of human beings as rational planners and maximizers, who rea-sonably demand to know in advance the legal consequences of alternative courses of action. On this view, rules provide maximally effective guides to behavior and ensure thatjudges, as much as other officials, are bound by law. Because blurry lines of authority promote uncertainty, formalism also idealizes a sharp division between the legislative and judi-cial functions. In contemporary debates, perhaps the most prominent formalist is Justice Antonin Scalia, author of a celebrated article entitled "The Rule of Law as a Law of Rules." Justice Scalia portrays rules as uniquely consonant with Rule-of-Lawv alues and maintains that both statutes and con-stitutional directives, when properly read, typically yield clear, rule-like meanings. There are also formalist strands in the works of writers as diverse as Dicey,Hayek,a nd Rawls,all of whom have lauded deter-minate rules as necessary to protect particular substantive values, and Fuller, who emphasized the necessary connection between legal form and the efficacy of law in achieving any substantive end. Despite distinguished support, the formalist ideal type has been largely on the defensive since the assault mounted by Legal Realism. One important strand of criticism, rule skepticism,68 objects that legal rules-abstracted from human assumptions, conventions, aims, and biases-neither do nor could determine legal outcomes. No rule, it is said, can determine its own extension. As a result, the question whether a rule applies to particular facts can always arise. To say that the question can arise is not, of course, to say that it cannot be answered, or even that there will not be broad agreement concerning the correct answer; fre-quently, perhaps typically, one will seem right or natural. But, the rule skeptic insists, what makes one answer seem right or natural will be exter-nal to the rule, and it may be culturally contingent, politically biased, or otherwise contestable. Cast in this form, rule skepticism does little damage to any sensibly formulated version of Rule-of-Law formalism. Formalism requires only that legal directives be generally and rationally comprehensible as man-dating particular conduct or outcomes. As long as rules are experienced as effective in guiding conduct-as long as those at whom rules are directed generally concur in their understandings-the central claims and aspirations of formalism remain relatively intact. A second ground of challenge depicts formalism as an unattainable and, in any event, an unattractive ideal. This criticism begins with a claim that vagueness and open texture are inherent in language. Clear rules are not always possible. In addition, uncertainty of aim is inelimin-able in legislation. Once uncertainty of aim is recognized, it may fre-quently be undesirable for the legislature to attempt to provide an ad-vance, rule-like resolution of all legal questions that may arise, or for courts to assume that the legislature would have intended to do so. This criticism is clearly a potent one, but it is at least partly blunted by acknowledgement that the Rule of Law is an ideal that not only may be approached more or less closely, but may also conflict in some cases with other political ideals. To the extent that the legal system is not rule-like, important values-reflected in the traditionally recognized elements of the Rule of Law-are likely being sacrificed. Often those Rule-of-Lawv al-ues may call for reform. Moreover, even when departures from Rule-of- Law values may be justified to promote other, substantive political values, it may be unwise and dishonest to prefer a conception of the Rule of Law that conceals the trade-off.
Legal Process conceptions find the requisites of "law" necessary for the Rule of Law to be satisfied by a mixture of procedural fairness in the development and application of legal norms, an (assumed) in-ternal connection between notions of law and reasonableness, rea-soned elaboration of the connection between recognized, pre-existing sources of legal authority and the determination of rights and responsibil-ities in particular cases, and judicial review as a guarantor of proce-dural fairness and rational deliberation by legislative, executive, and ad-ministrative decisionmakers. Defined in this way, Legal Process conceptions deny that law necessarily consists solely of rules that pre-exist the occasions of their application;81 in more practical terms, they dispute that it necessarily violates the Rule of Law for administrative agencies to treat adjudication as an occasion for policymaking, for courts to weigh arguments of principle and policy rather than apply rules mechanically, or for the Supreme Court to adapt constitutional doctrine to reflect his-torically evolving needs, expectations, and values. Instead, the Legal Pro-cess ideal type attempts to root law at least partly in a current, normative consensus perceived as adequate to validate particular decisionmaking processes and their outcomes as lawful. On the one hand, consensus identifies the kinds of institutions appropriate to render particular kinds of decisions; on the other, consensus roughly frames the substantive and procedural demands that such institutions must satisfy in order to legitimate their judgments.84 Especially in their characterization of courts and the judicial role, theories approaching the Legal Process ideal type tend to conceive the subjects of legal justice as reasonable persons, open to argument and p
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