#19670 - 6.A.I. Legality And Adjudication Rule Of Law Rule Of Law Overview - Jurisprudence

RULE OF LAW OVERVIEW

Conceptions of ROL

• FORMAL (Fuller, Raz) – dominant POV

  • ROL demands some formal attributes – e.g., generally applicable, coherent, prospective, etc.

• PROCEDURAL (Waldron)

  • E.g., GOV shouldn’t rid someone of their freedom unless they can contest

    • NOTE – this doesn’t exclude formal; it’s an ADD-ON (i.e., a further dimension)

• Both formal and procedural IGNORE the substance of the gaols being pursued by those in power

  • Dworkin’s alternative – SUBSTANTIVE = system of rules only complies with ROL when there’s a good conception of individual rights

• Formal sits comfortably with LP, BUT Fuller tried attacking LP via formal POV; two steps to his ARG

Step 1 – Compliance with ROL is part of COL

• (Fuller) Matter of degree, BUT if AUTHs disregard requirements completely = no legal system

• Hart disagrees – Nazi law debate = these are still laws, just bad ones

  • BUT he does concede two things:

    • (1) Every system must contain some minimum of NL

    • (2) Formal feature of generality

Step 2 – Compliance with ROL is morally valuable

• (Hart) Whether a legal system is moral depends on CONTENT of rules – it’s possible to have an immoral regime that follows ROL requirements

• TWO ARGs:

  • (1) ROL as SUFFICIENT condition for morality of LS (ambitious)

    • Hart rejects this, as does Fuller – it’s a NECESSARY condition, not a sufficient one

  • (2) Not a sufficient condition, BUT ROL has moral value (moderate); two ARGs

    • a) A system where ROL is abided by is LESS bad

      • Put differently, abiding by ROL NECESSARILY creates some good

    • b) Compliance with ROL makes it more LIKELY that a legal system with have good content

      • NOT a coincidence that immoral regimes disrespect ROL (Finnis)

      • NOTE – this isn’t an ARG explicitly made by Fuller

• Coz ROL is part of COL, and ROL has morality, then COL (law) must have elements of MORALITY

  • Completely undermines LP, which says that morality and law are separate

Step 2a)

• If I use the law (that is, something that respects ROL) as opposed to e.g., dictatorship, I will have created a NOR order, and that is per se morally valuable

  • Reason – something morally valuable in AUT of people – ROL ensures they can plan their affairs

• (Murphy) When lawmakers fail at ROL, people feel resentment coz they can’t plan their actions

  • Underlying this is the idea of RECIPROCITY – when GOV restrains itself, so do citizens

    • Therefore, undermining ROL undermines reciprocity

Step 2b)

• If you respect ROL, it is likely that you’ll have a moral system

  • Coherence and goodness are correlated; coherence and evil AREN’T

Hart’s Counterattack

• Hart concedes some basic sense of morality

  • Generality means treating cases equally

    • BUT Hart insists that respect for ROL is still compatible with evil

• Hart REJECTS these:

  • (Hart) ROL is merely an effective strategy for X purpose – it can make ANY law effective

  • (Raz) ROL is a virtue, BUT a NEGATIVE one

    • It PREVENTS certain evils from arising; two senses:

      • Conformity to rule doesn’t cause good except through avoiding evil

      • Evil avoided is evil which could’ve been caused only by the law itself

        • BUT is this not a contradiction? ROL produces moral good coz it avoids evil

Counterattack Against Hart?

• (Rundle) BOTH Raz’s and Hart’s attacks miss the RELATIONAL aspect of Fuller’s theory

  • Instrumentalist POV gives a “checklist” reading of his POV

    • His POV is NOT about the ENDS of law – it’s about the moral demands of a PARTICULAR relationship = i.e., the relationship between the lawgiver and his subjects

      • These demands explain the importance of RECIPROCITY

• It’s all about an ethos of respect and RESP; ROLE MORALITY is critical here

• Point is – Fuller’s argument is narrower in ambit = he’s not talking about morality in some general sense

  • They might have been TALKING PAST ONE ANOTHER

    • Fuller never talked about the connection between the eight desiderata and the moral quality of legal ends; even says that they’re “neutral over a wide range of ethical issues”

ROL (legalism) ISN’T a good thing:

• Marxist critique:

  • Ideological fig-leaf for class DOM – Horwitz

    • BUT Thompson (also Marxist) responds

• Unhealthy devotion to rules:

  • Shklar’s argument

• Fosters participation in gross injustices:

  • Cover’s argument – slaves from the South

• RESPONSES to these criticisms:

  • ROL is valuable, just not an absolute one (Raz) – is one of many virtues + negative virtue

    • BUT this partially concedes that legalism is useless

  • ROL ISN’T about proceduralism/formalism (Dworkin)

    • BUT response – notion of ROL is conflated with that of justice

      • Justice is still the critical part of a legal system – even if ROL has its moral value, justice ought to be an independent thing that the legal system strives for

        • i.e., it should not be something that is a given merely because of ROL

Summaries

Waldron, “The Concept and the Rule of Law”

• “Casual positivism” (Hart’s POV) and non-procedural POV of ROL are strongly correlated

  • We need a new COL to create a new ROL – we must develop them concurrently (“package”)

    • Correlation between understanding of law prioritizing rules AND ROL that insists on certainty and predictability (and vice versa)

• Procedural POV – emphasizes e.g., impartial ADMIN, procedural safeguards, SOP, etc.

  • This and formal at ODDS – procedural POV gives people a voice (ability to argue) = ARG UNDERMINES predictability (crux of formal view)

• Fuller is right to go contra “casual positivism”, BUT other INSTs/practices can disqualify LS from being LS

  • E.g., courts, general public norms, systematicity, etc. (five concepts in total)

• These features are formal and procedural (not substantive), BUT they have their moral significance

  • They contribute to taking people seriously as dignified people

• Main issue with LSs today – focus SOLELY on command-and-control aspect of the law = not culture of ARG

  • We don’t just obey/apply norms – we ARGUE over them adversarially

    • Just because a norm is identified, doesn’t mean it’s a clear guide to action

Waldron, “ROL and Importance of Procedure”

• Fuller focuses on FORM, not procedure – when he says “formal”, he means non-substantive

• Formal and substantive aren’t really that opposed – ARGs for formal elements done via substantive grounds

  • ARGs for formal elements done on SUBS grounds = e.g., affirming dignity

• Only one desiderata of Fuller’s is procedural (congruence of law in books and action)

  • Other principles focus on the norm as an output

• There is even a bit of procedure in Dworkin’s POV, since it demands i) moral rights be recognized in law, ii) individuals may ask for ENF of their rights VIA courts

• Something shouldn’t be regarded as a legal system without the existence/operation of courts

• Fuller’s principles constitute morality = they respect human dignity

  • Same can be said for RELAT between procedure and dignity

    • Key element of respecting dignity – BEING ABLE TO EXPLAIN ONESELF

• There’s a TENSION here, however – ability to contest (procedure) vs certainty

Dworkin, “Political Judges and the Rule of Law”

• Two conceptions of ROL:

  • Rulebook – judges discover what’s “really” in the rulebook; moral rights never decided based on judges’ POL judgment; you look at HISTORICAL fact

  • Rights-based – the rulebook is important source of moral rights, BUT not the only one; when it’s silent, judges apply one’s that best capture rights of parties in X circumstances

    • Citizens have moral duties/rights and POL rights against...