#19655 - 6.A. Legality And Adjudication Rule Of Law - Jurisprudence

LECTURE(s)

I

• ROL is liberal idea – you want a sphere of action that’s free from the intervention of authorities

• Anarchy > ROL > Tyranny = ROL is in the middle

  • In ROL, GOV is subjected to law – law applies generally (to citizens, GOV, and everyone)

• In juris debates, it’s ROL as CONSTRAINT on GOV authority

  • Not like when Trump says he’s going to restore “ROL”

What is the rule of law?

• E.g., Alito in Dobbs [2021] – ROL is about DEM; question of abortion to be returned to people; BUT dissenters say it attacks ROL – judicial restraint is critical (you should respect precedent)

• ROL vs rule of individuals

  • Waldron – you need to decide within a constraining framework of public policy

    • BUT what are these constrains – procedural, or more substantive (e.g., these norms need to protect certain rights)

  • Dicey – no man is above the law, and every man is subject to ordinary law of the realm and courts

  • von Hayek – bound by rules fixed and announced beforehand; makes it possible with fair certainty to see how the AUTH will use its coercive power and to plan one’s life (exercise AUT)

  • Fuller – the BEST formal definition; “inner morality of the law”

    • King Rex allegory – despite everything, Rex never managed to make law – for it to be law, it must respect a set of principles (eight) “inner morality”

      • Inner – coz its constitutive of law; can’t have law without respecting these principles

      • External morality – e.g., respect for substantive principles; the eight principles are FORMAL (they don’t have to do with the content of the law)

        • It’s content can be immoral – for it to be fully moral, it needs eight + content

• These formal attributes render the exercise of authority predictable + entails AUT and dignity (Fuller)

• In addition to these formal principles, some other scholars add PROCEDURAL features

  • E.g., Raz – INDEP judiciary, due process, accessibility of courts, etc.

• Crucially, formal and procedural ideas don’t evaluate content – you can have an immoral system coz content

• Fuller’s conception is also a bit procedural (criterion eight), but not in the pure sense = basically the same

Rule of law: substantive

• Alternative to the above – ROL has REQUIREMENTS about the content of the law

  • E.g., Locke – the State is justified by protection of private property; others say HR, etc.

• Raz – if you define ROL as rule of “good law”, you’re basically saying that ROL means justice = if you do that, you deny analytical INDEP of the concept of ROL

  • If so, we can work with the concept justice (no need for ROL)

• The most famous substantive definition of ROL comes from Dworkin

  • Formal (“rulebook”) conception is bad = separates ideal of ROL from ideal of substantive justice

    • ROL can be conflated with that of justice

  • Dworkin’s theory – “rights” conception of ROL = law isn’t separated from morality

• TIP: state which conception of ROL you’ll be following when writing an essay

Hart-Fuller Debate

• Fuller’s assault on LP:

  • (1) To qualify as law, system of rules must comply with ROL

  • (2) Compliance with ROL is morally valuable

    • NOT that law is just if you comply – it’s morally better, however

  • Therefore, law is, by its nature, morally valuable

• This is a “formal/procedural” natural law ARG – there’s a connection between law and morality, but relying purely on formal features

  • Dworkin’s attack is different – it’s based on principles that imbue law with moral content

• The rest of this lecture is an assault on PREMISE 1; next week, premise 2

Rule of law and the concept of law

• Fuller – Rex never managed to create law

• If there’s a total failure to respect any one of eight, not a legal system

  • Above that threshold, it’s all a matter of DEGREE

• Nazi law debate – Hart says they had law, just very bad law; Fuller – DISAGREES

• “Grudge informer” case – women’s defense = what I did was according to Nazi law

  • REJECTED – what you did, never was law

• Fuller – Nazi’s flunk the ROL test = absolute discretion for Hitler; lots of retroactivity; secret laws, etc.

  • The “grudge informer” case is an example of this – STATs that woman claims are very vague; one of them even says that it’s only PUBLIC attack that’s forbidden – not applied properly

• Fuller is, in fact, in favor of retroactive STAT – value of retroactive STAT would’ve been a clear departure from the Nazi regime

• Hart doesn’t clearly respond to Fuller’s attempt to link ROL and concept of law

  • Realistically, Hart has to make some concessions – for something to be law, some of the parameters should be respected

    • Hart – secondary and primary RULES = not unfettered discretion; that is itself a connection with the idea of ROL

    • Legal officials must accept RoR; bulk of POP must accept the rules = implies at least some clarity of the norms, and implies it’s possible to comply

    • Law is general – generality is critical part of ROL; generality of law means that you treat like cases alike (a basic principle of justice)

• Maybe Hart and Fuller are speaking past each other – they had DIFFERENT PROJECTS

  • They conceive of juris about being about different types of inquiries

  • Hart – descriptive analytical questions (e.g., what is law) are different from NOR ones = SEPARATE

  • Fuller – point of juris isn’t to describe; account of conditions when we have fidelity of law

• Fuller – Hart says that law is an amoral datum, which has the peculiar quality of creating a moral duty to obey it; no part of POS OBL to give coherent meaning to fidelity of law

• Hart’s response:

  • No assumption that there is a moral OBL to obey law

  • It’s better to keep legal and moral questions separate

    • There can be moral reasons to be a positivist – by separating the two, you encourage clearer criticism (similar to Schauer’s ARG)

• Fuller’s rejoinder – you can’t give an account of law without engaging in moral reasoning = it’s impossible to have a purely descriptive POV of law; even if it were, it’d serve no purpose

II

• Hart is unclear on whether COL is part of ROL; Fuller is more explicit in this regard – it is

• Today’s focus – second premise = is compliance with ROL morally valuable?

  • Fuller didn’t merely say that complying with ROL would make a legal system morally just – it’s more that complying with ROL is a NECESSARY condition

Is the Rule of Law Morally Valuable?

• Two types of ARGs for morality of ROL:

  • 2a - Compliance with ROL necessarily generates certain moral goods, regardless of law’s content

    • Necessary implication between respecting ROL and generating something that’s morally valuable = most conspicuous ARG

  • 2b - Compliance with ROL makes it more LIKELY that legal system will have morally good content

2a

• Fuller distinguishes between external and internal morality

  • External – has to do with goals of the law; e.g., welfare of citizens

    • There are different ways of achieving this, however – e.g., via dictatorship, etc.

  • Internal – if I use the law (i.e., something that uses criteria of ROL), then I will have created a NOR order; that per se is morally valuable

• King Rex has not only failed to make law – his failure was a MORAL failure

• Crux of Fuller’s ARG – there’s something morally valuable that’s the AUT of people = ability to plan their lives; that AUT is distinctive of human beings

  • It’s in virtue of this AUT that we have dignity, BUT for it to be respected, we must make it possible for people to plan their lives

    • To do this, we must provide them with a set of rules that are stable, clear, etc.

      • i.e., have all the hallmarks of ROL rules

• Hart COUNTERATTACKS

  • Hart concedes some basic sense of morality; link between GENERAL NORM and MORALITY

    • Generality means treating cases equally = this is the value (although it’s a faint connection)

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

• ROL is just about being EFFICIENT in achieving whatever goals the system sets for itself

  • In the same way that the principles of poisoning are about being EFF in poisoning

• Raz comes in – another positivist

  • Uses a similar metaphor – of a knife and its sharpness

    • You can use knife for good purposes, or for bad ones = sharpness makes you more EFF

    • ROL is instrument to achieve a goal = not morally relevant

• Therefore - ROL doesn’t necessarily guarantee morality

  • All things being equal, it’s better to abide by ROL, however = more limited claim

• Raz himself makes powerful case linking ROL with dignity and AUT

  • Ability to plan lives, stable framework, etc.; ROL failures undermine AUT in two ways:

    • Law fails to create any expectations

    • Law creates expectations, then frustrates them

• BUT then – doesn’t ROL have moral value if content is bad?

  • There might be a contradiction here – Raz accepts that ROL produces good (moral good), because it avoids the evil of arbitrary power

  • 2019 piece – ROL is a moral virtue

2b

• If Raz, a strong positivist believes that ROL is morally valuable = agrees to link between law and morality

• This ARG is DIFF = if you respect ROL, there’ll be a moral system

  • More like an empirical study – we look at history

• Fuller hasn’t completely developed this, BUT he makes certain suggestions

• Coherence and goodness = strong affinity; NOT between coherence and evil; CORRELATION

  • When men need to justify decisions, they’ll make good ones

• Supported by Finnis (FURTHER READING) – claim of correlation

  • If I’m a tyrant, and I want to disrespect your rights, then why would I respect AUT?

Another Interlude

• So did Fuller undermine LP?

  • Raz and Hart seem to suggest that there’s a link between ROL and concept of law; Raz...