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The Impersonal Rule of Law

Published online by Cambridge University Press:  09 June 2015

Kenneth Henley
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Extract

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 5 , Issue 2 , July 1992 , pp. 299 - 308
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1992

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References

An earlier version of this paper was presented at a colloquium of the Department of Philosophy of the University of Virginia in 1990. Although the questions raised then have not yet been dealt with to my satisfaction, this version has profited from the attempt.

1. Fuller, Lon The Morality of Law (New Haven: Yale University Press, 1964) at 41–94.Google Scholar

2. Joseph, Raz “The Rule of Law and Its Virtue” in The Authority of Law (Oxford: Clarendon Press, 1979) at 214–18.Google Scholar

3. Supra, note 1 at 46 and 96.

4. Supra, note 2 at 214.

5. Ibid, at 219.

6. Ibid.

7. Ronald, Dworkin Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) at 45–46, 62-86,90-96.Google Scholar

8. Fuller, supra, note 1 at 115-17. The point is made in treating the notion of Parliamentary sovereignty and Dicey’s attempt to found the rule of law upon it.

9. For an example of such curing, see Fuller, ibid, at 53-54.

10. Plato, Laws 4 713c,Google Scholar The Laws of Plato, trans. Pangle, Thomas L. (Chicago: University of Chicago Press, 1988) at 99. And see Laws IX, 875a-876a.Google Scholar

11. Laws IV 715d at 102.

12. Laws IV 715 at 101.

13. “…in public life and in private life—in the arrangement of our households and our cities—we should obey whatever within us partakes of immortality, giving the name ‘law’ to the distribution ordained by intelligence.” Laws IV 714a at 100.

14. Republic IX 588b-591 a; Laws IV 712b-715e.

15. Aristotle, , Politics 3, 1287a in The Politics of Aristotle, trans.Google Scholar Ernest, Barker (New York: Oxford University Press, 1962) at 146.Google Scholar Barker points out in a note that Aristotle here uses the language of Plato’s Republic for the parts of the soul.

16. Summa Theologica, I-II, Q. 90-94 and De Regimine Principum (On Kingship) c. 1.

17. Second Treatise, generally and especially c. II, sec. 13; VI, sec. 57; VII, sec. 87; and XI, sec. 135.

18. The account of the ideal is in section 38: “The Rule of Law”, 235–43, and in sec. 10: “Institutions and Formal Justice,” 58–59, John, Rawls A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971)Google Scholar. Reflective equilibrium as a non-realist (though, strictly speaking, not antirealist) version of Aristotelian method is set out at 20,48–51, and 577–79 and subsequently in “Kantian Constructivism in Moral Theory,” (1980) 77 Journal of Philosophy 515 and, even more pointedly, “Justice as Fairness: Political Not Metaphysical” (1985) 14 Philosophy & Public Affairs 223.

19. The image of Ulysses bound and its connection to the rule of law and constitutionalism comes from Elster, Jon Ulysses and the Sirens: Studies in Rationality and Irrationality, rev’d ed. (Cambridge: Cambridge University Press, 1984)Google Scholar generally and especially pp. 87’103. Elster writes: “We should stress the crucial notion of the constituent assembly, not as a fictional device, as in contract theories of the state, but as a real historical assembly seeking to bind its successors. This is the closest analogy in society to the state of mind of Ulysses setting out on that dramatic part of his journey” (103). And: “Even when not rational, man knows that he is irrational and can bind himself to protect himself against the irrationality. This second-best or imperfect rationality takes care of both reason and of passion. What is lost, perhaps, is the sense of adventure”(111).

It is interesting to note that Plato portrays the rule of law as second-best: “For no law or order is stronger than knowledge, nor is it right for intelligence to be subordinate, or a slave, to anyone, but it should be ruler over everything, if indeed it is true and really free according to nature. But now, in fact, it is so nowhere or in any way, except to a small extent. That is why one must choose what comes second, order and law—which see and look to most things, but are incapable of seeing everything” (Laws IX 875c-d at 271). On the basis of this, it could be argued that Plato is nearer to a modest view of legality than usually thought and than pictured in the body of this essay. Plato also sees the problem of precommitment: “And indeed, for a city and for citizens provisions must be made in these respects not only for the health and safeguarding of the bodies, but also for a state of good lawfulness in the souls, or rather for a safeguard of the laws. To me it seems evident that this is still lacking in our laws—the way in which the capacity of irreversibility ought naturally to be implanted in them” (Laws XII 960d at 364).

For a thorough and brilliant discussion of constitutionalism as precommitment, see Holmes, Stephen “Precommitment and the Paradox of Democracy” in Elster, Jon & Slagstad, Rune eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988) at 195–240.CrossRefGoogle Scholar

20. See Raz, Joseph “Facing Diversity: The Case of Epistemic Abstinence” (1990) 19 Philosophy & Public Affairs 3.Google Scholar

21. Supra, note 18 at 236–39.

22. Ibid, at 59 and at 236.

23. Fuller, Lon “Positivism and Fidelity to Law—A Reply to Professor Hart,” (1958) 71 Harvard L. Rev. 630 at 636,Google Scholar reprinted in Feinberg, J. & Gross, H. Philosophy of Law (Belmont Calif.: Wadsworth, 1986) at 91.Google Scholar

24. Supra, note 1 at 153.

25. Ibid, at 96–106.

26. Supra, note 18 at 578–81. The possibility of non-contingent connections disintegrates within this methodology.

27. Ibid, at 59–60. Rawls gives an account of Fuller as only endorsing a merely factual interaction. It seems to me that the chapter in Fuller goes further than this.

28. Ibid, at 130–36.

29. Friedrich Hayek, A. The Constitution of Liberty (Chicago: University of Chicago Press, 1960) at 148–61;Google Scholar Law, Legislation and Liberty, vol.2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), generally; and Law, Legislation and Liberty, vol. 3: The Political Order of A Free People(Chicago: University of Chicago Press, 1979) at 109–11.

30. Supra, note 18 at 237–38.

31. Supra, note 2 at 225.

32. Ibid, at 227.

33. Jon Elster gives an account of lottery as a way of dealing with the limits of rationality and applies the idea to law in Solomonic Judgements: Studies of the Limitations of Rationalit (Cambridge: Cambridge University Press, 1989) at 78-122. The connection to the Impersonality and Guidance Conditions for the rule of law is mine.

34. Supra, note 2 at 221.

35. Ibid, at 224.