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.
Краткое сожержание материала:

Размещено на

Report

On Science of Law

Topic: The rule of law concept



Introduction

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 reject...