Reconsidering the Rule of Law

RECONSIDERING THE RULE OF LAWKM

RECONSIDERING THE RULE OF LAWMargaret Jane Radin

Boston University Law ReviewJuly 1989

69 B.U. L. Rev. 781I. INTRODUCTION

The article begins by asserting that the rule of law is not presently functional and should be given a modern interpretation to establish a government made up laws and not men. The assertion is that it is questionable whether the rule of law can control arbitrary power or of the rule of law is human a good way of going about achieving a government of laws and not men. First is the emphasis on the rule of law as either substantive or instrumental with emphasis on Wittgenstein's social practice conception of rules. Wittgenstein social practice conception of rules essentially asserts that rules only exist in practice meaning that a community must accept them in order to be rules, which negates the possibility of pre-existing rules. First, the traditional idea of rules, which is essentially formalist, is connected with certain aspects of the nature of rules. Assuming the practice conception of rules to be true the question is whether the rule of law is workable in modern society. The assertion is that the practice of the conception of rules makes the rule of law unworkable in modern society and as such, it should be reinterpreted.

II. THE RULE OF LAW AS A CONTESTED CONCEPTAs an initial matter, the rule of law can be viewed in its various elements that are essentially either instrumental or substantive. The instrumental version, which is asserted by Lon Fuller, holds that rules are pre-existing to any workable society. The substantive version, which is asserted by John Rawls, holds that the rule of law incorporates tenants of a particular political policy.A. The Instrumental Conception of the Rule of Law, or “How to do Things with Rules”DD'Lon Fuller claimed that the rule of law is part of an internal morality of law. Eight elements are presented which are purported to be crucial to internal morality of law. They are:

1. Generality. Roughly, there must be rules, cognizable separately from (and broader than) specific cases, such that the rules can be applied to specific cases, or specific cases can be seen to fall under or lie within them. 2. Notice or publicity. Those who are expected to obey the rules must be able to find out what the rules are. 3. Prospectivity. The rules must exist prior in time to the actions being judged by them. 4. Clarity. The rules must be understandable by those who are expected to obey them. 5. Non-contradictoriness. Those who are expected to obey the rules must not simultaneously be commanded to do both A and not-A. 6. Conformability. The addressees must be able to conform their behavior to the rules. 7. Stability. The rules must not change so fast that they cannot be learned and followed.

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8. Congruence. The explicitly promulgated rules must correspond with the rules inferable from patterns of enforcement by functionaries (e.g., courts and police). Id at 785.

It is that asserted that the list can be boiled down to two principles first there must be rules and second rules must be capable of being followed.Fuller's conception of generality means simply that rules should be broad and that like cases should be decided similarly. If it were otherwise than as formalistic approach then there would be no "rule" per se but only a preference. Fuller's conception of the following ability of rules encompasses numbers 2 - 7 set forth above. These can be boiled down to two propositions the first being "knowability" as a second being "performability." The first conception of knowability encompasses clarity, certainty, publicity, congruence, and noncontradictory nature. The second conception of performability encompasses the possibility that human beings can follow the rules in a congruent manner that is in accord with human nature and generally prospective and not retroactive. The above outlined concept is instrumental meanings how to do things with rules. Ronald Dworkin points out that implicit in this understanding of rules is that laws are rules, which provides the possibility that two additional elements should be present. One element would be rationality the other would be motivational. Essentially the idea is that the rule follower must be rational and motivated to follow the rules.B. The Substantive Conception of the Rule of Law, or “How to Foster Liberty and Constrain Leviathan”DD'John Rawls asserts that law is essential to justice as fairness is an overall scheme of the administration of public rules. This assertion promotes liberty that is essential to the concept of justice as fairness, which implicates the possibility that the rule of law is necessary for liberty to exist. Rawls promotes a rationalist conception of the law, which is what makes it substantive. Here his seminal definition of a legal system: “A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation.”' Id at 788.

“A legal system is a coercive order of public rules”': In Rawls's conception (as in Fuller's), the law consists of rules. To regulate conduct, and thereby achieve the social cooperation necessary for justice, rules must have certain characteristics associated with the Rule of Law: 1. “Ought implies can.”' The addressees must have the ability to conform, and the authorities must act in good faith. Impossibility of conformance, therefore, must be recognized as a defense. 2. Similar treatment of similar cases. This includes the requirement of consistency, and imposes limitations on judicial discretion. 3. “Nullum crimen sine lege”' (no crime without law). Laws must be known and expressly promulgated, with clear meaning. There must be no retroactivity. Laws must be general and not bills of attainder. Severe offenses must be narrowly construed. 4. Natural justice. There must be structures for achieving truth and correct enforcement: trials, hearings, rules of evidence, due process. Judges must be impartial and independent. Trials must be fair, open, and not “‘prejudiced by public clamor.”’ Id at 789.

Rawls advances to arguments for the above quote the first being that the four

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elements are not present it would lead to irrational results because like cases would not be treated similarly. Hence, an individual in the "original position" would opt for this type of system of legal rules because it offers predictability, which an individual in the original position would find rational. The second argument is based on the Hobbesian principal to which Rawls subscribes. The Hobbesian principal is that individuals will cooperate and work with one another when it benefits them. However this leaves the possibility of a "prisoner's dilemma." A prisoner's dilemma is that if to individual apart from one another were offered a lenient sentence for informing on the other they would take it in the ignorance of the other silence. However the dilemma arises when there would be no punishment if of did not inform upon the other. Hence, acting in one's self-interest is a basic assumption of the Hobbesian principal. Rawls deals with this problem by asserting that penal sanctions should be imposed in order to dissuade self-interested behavior in the original position. In providing for penal sanctions, the Leviathan of self-interested behavior can be dissuaded by a sovereign with the possibility and authority to impose penal sanctions. This principle necessarily leaves to the principal of responsibility as part of the concept of ordered liberty. Essentially one must take responsibility for their actions even though defenses to the penal sanctions are present to knowability and performability of law ultimately rests on the independent agent. One problem with John Rawls account of justice is that it does not account for the separation of powers in American jurisprudence. This concept is explored by Fuller in his account of instrumental justice and can be summarized in the assertion that the application of rules must not differ from how they are made and to do this Judges must "find the law" rather than "make the law." This constrained view of the judicial rule is central to the law as a conception of justice because it requires democracy to be a core central value. Three problems are counter majoritarianism, gaps in the law, and limiting the judiciary without limiting the legislative bodies. Counter majoritarianism is a problem because a majority of a society can establish unjust rules and use the courts to protect their enforcement. Gaps in the law is a problem because it does not give a judge clear guidance for determining a case nor does it allow one subject to the law to easily account for all situations. When the judiciary is limited and legislative or executive is not unjust rules can be made and the judiciary forced to enforce them.C. A Contested ConceptAt this point, it becomes clear that there is an ambiguity in the rule of law as a concept. At this point, the connection between the law and legal liberalism should be apparent. Legalism is essentially the decisional outcomes of pre-existing rules as advocated by Fuller. From this, it can be deduced that the substantive form of legalism is simply liberal legalism as advocated by John Rawls.

Aside from the surface correlation in the lists of precepts, it is apparent that the two conceptions do have much philosophical underpinning in common, including five important assumptions: (1) law consists of rules; (2) rules are prior to particular cases, more general than particular cases, and applied to particular cases; (3) law is instrumental; (4) there is a radical separation between government and citizens; (5) the person is a

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rational chooser ordering her affairs instrumentally. It at 792.In either event, instrumental justice must be rules meant to achieve government ends and substantive justice must focus more on the social contract of liberty and justice.

III. TRADITIONAL FORMALISM AND THE RULE OF LAWHaving just a traditional formalism as applicable to the rule of law, the focus is now ways in which traditional formalism does apply the law and whether Wittgenstein's conception of law by action is a better approach.A. Senses of Traditional Formalism1. Formal connection between rule and particularsTraditional formalism is simply the idea that there is an analytic framework for every set of facts and a particular rule that must apply. In this conception, judges are computers that get a set of facts, which dictate a particular rule, be applied for a necessary outcome.2. Formal connection between foundations and rulesAnother sense of the word formalism mandates that the mind exists independent of reality and has a foundation of the first principles of logic. Natural law is a type of formalism in the sense that there are forces extra roll to the human mind which mandate morality. This type of formalism involves a connection with either fact or value and mainly concerns itself with the connection between the rule of law and the structure of the universe.3. Formal connection between words and thingsAnother sense of formalism is formalism in semantics. H.L.A. Hart asserted that there is a core and prenumbra of rules. The core value of rules would be an essentially formalist idea since there would be certain factual situations, which directly apply to a given rule. In the prenumbra, the judge must legislate. If the core value is true then there must be at least some subset of words, which apply to a given rule. This is a problem for the theory of reference because it implies that there are some criteria for which rules are applicable and other rules or fact situations where words are inapplicable. The necessary and sufficient conditions where a particular rule applies may be a convention of language and a thought reductionist would deduce foundational sense data, which leads to formalism in metaphysics.4. Formal realizability and the formalist conception of rulesFormal realizability is essentially a self-executing rule or what may be called strict liability. Under this theory, an analytic framework necessitates a given rule to be applied to facts. This is so because the rule is realizable by its very words or definition ever ascertainable by the rules "plain meaning."B. Traditional Formalism and the Rule of LawThe traditional understanding of formalist realizability correlates with the clarity of both instrumental and substantive justice since each requires that the independent agent knows the rules and can follow them. Outside of formal realizability, there can be "standards" or guidelines, which gives some idea of the rule, but this is problematic to formalism. From the instrumental standpoint it leads to confusion due to lack of clarity and from the substantive standpoint it leads to judges exercising arbitrary and capricious power. In the substantive conception, John Rawls saw the ready connection between rules and the contract theory of cooperation as Hobbes put it. The added ingredient is a sovereign with the power to impose penal sanctions to prevent any breach of the social contract or

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constitution. The problem is that judges should formalistic we apply rules under this theory in order to keep order in society and thus ensure liberty and fairness. Although Rawls does not subscribe only to Hobbes theory, he understands the means-ends analysis.IV. THE WITTGENSTEINian Conception of Rules and Its Consequences (If Any)

A. The Wittgensteinian Social Conception of RulesJust as Wittgenstein's view of words and rules have a social and practical conception. The social conception is that in order to have a rule in must be accepted by society. The practical conception is that in order for rule to exist it must be practiced within a society. The social context of the rule provides definition whereas the practice of a rule provides its application. Wittgenstein's perspective may be called a type of rule skepticism. The quandary is that one may ask when a rule is being applied which one is free to be skeptical about. If there are no formal or logical criteria for a rule, it makes sense to be skeptical about rules. Another problem is that the binding of a rule cannot be observed. There is also a problem of "rule" itself because if it has no definition it cannot be recognized and thus ruleness cannot be shown. These problems lead to the conclusion that rule skepticism makes the most logical sense if there is no other analytic framework or logical way to deduce rules and their application. Wittgenstein addresses both internal and external conceptions of the existence of rules. The internal questions consider whether one can know that they are following a rule, what a rule is, and what the determinateness or binding nature of rule is. The external questions are whether one could tell what others are following rules and what is her knowledge or application of a rule. Wittgenstein asserts that the answers to the internal questions are that the application of the rule is an internal sense or feeling, a compulsion, or strong sense of connection. Wittgenstein is skeptical so in the end analysis following a rule is simply what one does and nothing more. In answering the questions of external sensations of rule following Wittgenstein asserts that it is only when somebody seems like there are following a rule by an outside observer, in other words context is necessary.Wittgenstein asserts that agreement is a word deeply connected to rule. There can be no agreement without a rule in no rule without an agreement thus they are symbiotic. Rules are irreducibly social because they necessarily follow from the agreement of a group, which necessarily leads, to the conclusion that rules cannot be followed privately or by one person at one time only. In Wittgenstein's view a rule is determined by the action of a matter of course were disputes do not break out. Formal realizability would allow rules to be followed privately or only one time by one person so Wittgenstein rejects the notion. The essential point is that rules exist a formalistic realizability is not the way to understand them.B. Consequences (if any) for the Model of Rules and the Rule of Law1. Does Our Conception of Rules Matter?Wittgenstein shows affinity for pragmatism since his theory rests on application or use of rules. In a narrow reading Wittgenstein can be answered by a simple "so what." However, the broader sense of Wittgenstein seems to be more consistent with rejecting Neo-pragmatism in favor of pragmatism since everything is action based and contextually defined. In either viewpoint, there are still rules or sets of rules then the issue is really one of the concept or process by which one thinks of rules. Even in the broad interpretation of Wittgenstein if one concedes that all actions are so unique to the individual then it seems a given that the only thing that changes is the way one

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conceptualizes a rule. An important observation is the rule prenumbra theory, which Wittgenstein could interpret as being the "core" as a matter of course of a rule and the "prenumbra" as instances in which disputes break out. Even in deciding the "hard cases" were may be said that judges are called to legislate an answer or Wittgenstein would probably view is that there needs to be a better definition of what law "is." 2. Compromise Positions on the Model of RulesIn order to understand what law is in light of the concept set forth by Wittgenstein it should be divided into domains consisting of rules and other thing. Ronald Dworkin disagrees with the core/prenumbra idea of conceptualizing Wittgenstein. Dworkin has bifurcated the model of language by dividing standards into rules and other things that do not act as rules into another separate category. There are two main objections to this point and that is that disputes remain even after cases are resolved so would be incorrect to say that there is a "right answer" to the dispute and the complexity of practicing law far exceeds simply dividing rules from non-rules. Duncan Kennedy has posited a notion that is more extreme than Dworkin in that there is a continuum upon which we can place rules and nonrules. However this complexity leads to a simple indeterminacy because his arbitrary at that point as to where anything is placed.3. On the connection between philosophy and normative social activity: the repercussions of reconceiving rulesThis section articulates the shift in the rule of law if Wittgenstein were accepted. Theory and practice cannot be made separate because with a shift in theoretical ideas there is an impact on their practical application. The consequences of such a philosophical shift is that applying rules necessarily entails making the rules which are contingent upon the whole spectrum of life activities including the set of particular facts which fall under any rule. In short, a rule will cease to exist if the relevant community that accepted it no longer recognize the rule and stop acting according to it. This conception of rules contrasts with HLA Hart in his theory of command and rule recognition legal positivism. Hart's primary rules of obligation are valid whether people obey them or not in the rules of recognition occur when the relevant community recognizes observed actions and commitments to the legal community. Essentially stated when a rule of law is observed it is affirmed and when it is not its very existence is undermined. Under Wittgenstein's theory of the rule of law, the generality asserted by Fuller leads to the conclusion that there can be no radical distinction between rules in the particular facts in which they apply. In a general sense, a rule law cannot be promulgated without consideration of the relevant community to which it is to apply because community acceptance legitimizes and verifies the rule itself. It must be understood that rules are not immutable. Over time, the relevant community can do for set effect to a rule through its application or eviscerate a rule by declining to follow it. In the most natural sense of a rule of law and not individual theory, individuals are essential since there to be rule-bound instrumental functionaries of the rule of law itself. Once there is recognition that rules are mutable and inextricably linked to their material social practice, there are significant consequences for the practice of law. Duncan Kennedy points out the views and desires of legal actors in the field in the normative power of the field significantly interact. In this sense, what appears to be rules can be much more malleable and the fact that there is no pre-existing rules the positivist theory of rules being mechanically applied changes because there is no plain meaning of a rule that undermines the predictability of case

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outcomes. If it is accepted that anti-formalist, anti-foundationalist, contingent, and socially constructed rules than the change in the thought process is not irrelevant but simply incompatible with the traditional notion of the rule of law in a formalistic sense.

V. TOWARD REINTERPRETATION OF THE RULE OF LAWA. Liberal Legalism and Non–Formalist Natural LawThis section attempts to affirm the traditional rule of law while denying traditional formalism. The problem is that in this conception to theory collapses into legal liberalism. Michael Moore asserts that theory of natural law, which embraces coherence theory. Moore asserts that there is a right answer to moral questions and that in deciding cases recourse to morality is necessary. These notions connect with the rule of law under Moore's claim of the rule of law virtue. More lists six virtues, which are separation of powers, equality, liberty, substantive fairness, procedural fairness, and utility. Michael Moore cites Fuller for his argument but it is actually closer to the substantive justice asserted by John Rawls. For instance, the separation of power idea stands for the proposition that judges should apply the law and not make the law. Another example is that of equality where like cases should be decided similarly. Two salient features of Moore's theory are that judges should act as functionaries and not individual persons and due to the doctrine of stare decisis; there is an implicit morality in previous decisions without regard to historical or social change. The problem is that when a judge is constrained in a functionary role stare decisis will sometimes necessitate morally wrong decisions. This aspect of the theory more closely aligns to that of traditional legal positivists in their separation of law from morality. Moore's theory collapses on itself because the implicit framework of legal liberalism and non-foundationalism are simply inconsistent. Moore's argument for a type of legal liberalism renders traditional formalism impossible while asserting that language should be used to come as close to it as possible. However, legal liberalism leads to the conclusion that there is no "it" to come close to and so the argument collapses.B. The Rule of Law and Interpretive Community: Toward a Pragmatic ViewThis section considers turning towards a pragmatic view of the law that emphasizes practice as well as language, which leads to a normative pragmatic view and necessitates hermeneutics in the legal process, which is essentially a political process. This practice-based approach to law forms the epistemology of law. Robert Cover suggests an approach that is consistent with this view of law in that when judges act as functionaries of the law and simply applies rules they deny responsibility for bad decisions. When judges deny responsibility for their bad decisions they essentially, do violence to the law. According to Cover, judges constitute an interpretive community, their decisions constantly reinterpret the law, and as such by applying the law, they are making the law through precedent. Like Covers theory, hermeneutical social theory rejects foundationalism and formalism as well as the idea that law can be applied without reference to its interpretive community or the community to which it applies. Essentially the idea is that law requires interpretation with reference to policies and values of the relevant community. This type of reinterpretation of the rule of law would deny the separation of formalistic realizability that divides groups into rule givers and rule followers. In such a pragmatic reinterpretation of the rule of law the traditional notion of pre-existing rules will be rejected because each decision regarding a rule of law would continually reinterpreted with reference to history and politics of the day. In the

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substantive conception of law this reinterpretation would necessitate that we "look and see" how the law evolves. Under this conception three theories are crucial which are that notice, nonretroactivity, and separation of powers. The instrumental view of law would require that there be pre-existing rules, which negates the possibility of retroactivity if notice is given to the community in which the rules are to be applied. In the substantive view of law, fairness is key and it is simply unfair to apply laws retroactively without giving notice to the rule followers of a community and allowing them to conform their behavior to the proper rules. Under this reinterpretation of the law, a pragmatic approach is applied in a traditional sense and provides a broader understanding of publicity and notice considering that judges as well as legislatures make rules of law. In a pragmatic sense, the rule of law will exist when a community accepts it whether or not it has been formally enacted by a legislature or decided by a judge. Under this reinterpretation of the law, it would be fair to retroactively enforce laws that are clearly foreseeable to the community as emerging rules. The separation of powers and nature of the judicial role is a more complex issue. If Wittgenstein's views accepted then it would make sense to jettison the distinction between rule givers and rule followers but recognition that there must be some demarcation between the two provides normative stability and once recognized as such the idea makes sense. In this pragmatic normative understanding the Constitution becomes an evolving document of the ideal society in which we seek to become and where we are today with the rule of law necessarily depends on our history of the evolution of the rule of law. For a better understanding of morals and politics and Law, conventionalism is implicit in that when a majority or a rule violates minority rights it should be reinterpreted to be an ideal rule, which is fair to all. In order to do this it must be recognized that there is a fidelity to the law and a vision of a better society. It may be said that legislatures are more loyal to a convention of the rule of law and that judges are more loyal to a convention of a view of a better future. However, when the two interact a more ideal vision of the future becomes possible. Independence and impartiality are traditional aspects of the judicial role that are supposed to demarcate the distinction between legislatures as rulemakers and judges as functionaries applying the law. Cover envisions this distinction as any individual engaged in a moral choice, which implicates moral integrity and blurs the line between rule making and rule application, which necessitates that judicial hands should never be tied.

In such an anti-formalist view of the judge's role, judges are an interpretive community conscious of their obligation to act as independent moral choosers for the good of a society, in light of what that society is and can become. The law, as long as it is part of a viable and developing community, is neither “found”' nor “made,”' but continuously re-interpreted. There are still rules. But there are no rules that can be understood apart from their context; nor are there rules that can be understood as fixed in time. Id at 818.

VI. CONCLUSIONIn the view of law as a pragmatic normative practice, law does not disappear. But it is always open to people to recognize, in various ways, that the law in the statute books is not the real law. Some practices are so deeply accepted that they seem like immutable rules. Life according to rules is not impossible but quite routine, as Wittgenstein saw. It is only

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that, if we take the pragmatic and hermeneutic view of law, our understanding of rule-following must be reconstituted so that we know that rules are neither formal in the traditional sense, nor eternal, nor existing independently of us; and so that we know that every application of them is a reinterpretation. We must know that each time we feel ourselves to be rule-followers we are rule-creators as well.Whether or not the term “the Rule of Law”' should be dropped becomes another pragmatic question, a matter of judgment about its ideological baggage. Is the term indelibly linked in our usage with the ideas that law is instrumental and consists of pre-existing formal rules applied in a value-free manner? Or can its precepts be reinterpreted in the way I have begun to suggest? If we can use the term in this new way, it seems that we would at least have to drop the slogan, “the Rule of Law, not of individuals.”' If law cannot be formal rules, its people cannot be mere functionaries. Id at 819.

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Reconsidering the Rule of Law

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