promoting the rule of law: a benchmarks approach … · 2013-12-05 · 2 contents 1. introduction 3...
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Working Paper No. 105 – April 2013
PROMOTING THE RULE OF LAW:
A BENCHMARKS APPROACH
Nicolas Hachez
Jan Wouters
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PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH
Nicolas Hachez
Jan Wouters
ABSTRACT
This paper seeks to reaffirm the ideal character of the rule of law as a guiding principle for
organizing life in society. After a review of the various conceptions under which the notion of
rule of law is known and applied, and after acknowledging that uncertainties as to the nature of
the rule of law weaken rule of law promotion efforts, the authors suggest a new articulation of
the concept of rule of law and a new approach to its promotion. The new articulation is based
on the links that the authors uncover between the rule of law and legal validity conditions at
play in a legal system. It is argued that the rule of law ideal is best pursued by legal systems
which adopt a multidimensional conception of legal validity. The various dimensions of legal
validity relate to the various ways in which a legal system should ideally connect to the social
order it claims to govern: cognitively (dimension of legality), empirically (dimension of
effectiveness) and axiologically (dimension of legitimacy). The authors then flesh out the
conditions that need to be realized in political processes in order for legal systems to
constantly strive toward those three dimensions. The paper concludes by propounding a
‘benchmarks approach’ for realistically and fruitfully promoting the rule of law.
KEY WORDS
Rule of law – United Nations Rule of Law Unit – Legal validity – Legality – Effectiveness –
Legitimacy – Jurisgenerative politics
AUTHORS
Nicolas Hachez is Research Fellow and Project Manager, Institute for International Law and
Leuven Centre for Global Governance Studies, University of Leuven.
Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance, Full Professor
of International Law and International Organizations and Director of the Leuven Centre for
Global Governance Studies and the Institute for International Law, University of Leuven.
ADDRESS FOR CORRESPONDENCE
NOTE FROM THE AUTHORS
This paper significantly revises and expands the central thesis of Leuven Centre for Global
Governance Studies Working Paper No. 47 by the same authors
© 2013 by Nicolas Hachez and Jan Wouters. All rights reserved. No portion of this paper may
be reproduced without permission of the authors.
Working papers are research materials circulated by their authors for purposes of information
and critical discussion. They have not necessarily undergone formal peer review.
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CONTENTS
1. INTRODUCTION
3
2. RECONCEPTUALIZING THE RULE OF LAW AS A WORKABLE IDEAL
6
2.1 THE TERMS OF THE DEBATE : NEGATIVE VS.POSITIVE, THIN VS.THICK AND
FORMAL VS. SUBSTANTIVE CONCEPTIONS
6
2.2 THE RULE OF ‘VALID’ LAW 11
2.3 LEGAL VALIDITY AS CONNECTEDNESS
2.3.1 A RULE OF LAW-ORIENTED CRITIQUE OF POSITIVIST AND
JUSNATURALIST THEORIES OF VALIDITY
2.3.2 VALIDITY AS THE TRIPLE CONNECTION OF THE LEGAL SYSTEM WITH THE
SOCIAL ORDER
2.3.3 VALIDITY AS CONNECTEDNESS AND ITS CONSEQUENCES : THE RULE OF
LAW AS AN EVALUATIVE NOTION
2.4 THE RULE OF LAW AS A DIALECTICAL IDEAL
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14
16
20
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3. CONCLUSION : A BENCHMARKS APPROACH TO THE RULE OF LAW
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PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH
Nicolas Hachez
Jan Wouters
1. INTRODUCTION
Although the rule of law is all but a new concept, since the beginning of the 1990s it
seems to be enjoying a second youth.1 Over the last two decades, the rule of law
has become a totem for those who criticize malfunctioning states and legal systems
and lament ensuing chaotic social orders. Likewise, it is a beacon for those who
promote better-functioning legal systems for improving the relations between the
members of a social order. The ideal has consequently been appropriated by
numerous institutions involved in the design and evaluation of legal systems. For
example, promoting the rule of law has become a leitmotiv in peace building and
transitional justice programmes, but also in development cooperation. The rule of law
is for instance designated as a foundational principle of the European Union (‘EU’),2
and as priority objective of its external relations.3 The United Nations (‘UN’) has
recently, at the highest level, reaffirmed its ‘commitment to the rule of law and its
fundamental importance for political dialogue and cooperation among all States and
for the further development of the three main pillars upon which the United Nations is
built: international peace and security, human rights and development.’4 Especially
over the last decade, the UN has increasingly focused its attention on the rule of law,
as is shown by the large number of resolutions and reports produced or endorsed by
UN organs on this matter.5 In order to better coordinate its efforts in this area, the UN
has set up a ‘Rule of Law Coordination and Resource Group’ and a ‘Rule of Law
1 Thomas Carothers, ‘The Rule of Law Revival’, 77 Foreign Affairs 69 (1998).
2 See Preamble and Article 2 of the Treaty on the European Union (‘TEU’).
3 See Article 21(1), first para., TEU.
4 See UN General Assembly, ‘Declaration of the High-Level Meeting of the General Assembly on the
Rule of Law at National and International Level’, Resolution No. 67/1, UN Doc. A/Res/67/1, 24 September 2012. 5 See, e.g., UN Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies – Report of the Secretary-General’, 23 August 2004, UN Doc. No. S/2004/616; UN General Assembly, ‘In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary-General’, 21 March 2005, UN Doc. No. A/59/2005; UN General Assembly, ‘2005 World Summit Outcome’, Resolution of 24 October 2005, UN.Doc. 1/RES/60/1, paras. 119 ff.; UN General Assembly, ‘Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law’, 14 December 2006, UN Doc. No. A/61/636; UN General Assembly, ‘Strengthening and Coordinating United Nations Rule of Law Activities – Report of the Secretary-General’, 6 August 2008, UN Doc. No. A/63/226; the Secretary General’s yearly ‘Annual Reports on Strengthening and Coordinating United Nations Rule of Law Activities’, published since 2008, UN Docs. No. A/63/226, A/64/298, A/65/318, A/66/133, A/67/290; Rule of Law Coordination and Resource Group, ‘Joint Strategic Plan 2009-2011’, February 2009, available at http://www.unrol.org/files/RoLCRG%20Joint%20Strategic%20Plan.pdf; Office of the UN High Commissioner for Human Rights, ‘Rule of Law Tools for Post-Conflict States’: Truth commissions (2006, UN Doc. No. HR/PUB/06/1); Mapping the justice sector (2006, UN Doc. No. HR/PUB/06/2); Monitoring legal systems (2006, UN Doc. No. HR/PUB/06/3); Prosecution initiatives (2006, UN Doc. No. HR/PUB/06/4); Vetting: an operational framework (2006, UN Doc. No. HR/PUB/06/5); Reparations programmes (2008, UN Doc. No. HR/PUB/08/1); The legacy of hybrid courts (2008, UN Doc. No. HR/PUB/08/2); Rule-of-law Tools for Post-conflict States: Amnesties (2009, UN Doc. No. HR/PUB/09/1); Rule-of-law Tools for Post-conflict States: National Consultations on Transitional Justice (2009, UN Doc. No. HR/PUB/09/2). For a full database of UN Rule of Law-relevant documents (notably the numerous General Assembly and Security Council Resolutions, see the United Nations Rule of Law Document Repository, available at http://www.unrol.org/dr.aspx.
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Unit.’6 The private sector, most notably the countless NGOs active in post-conflict
reconstruction and development assistance, has been focusing on the promotion of
the rule of law as well.7 Academic institutions and think-tanks increasingly make the
rule of law a full-fledged subject of study.8
The centrality of the rule of law in the critique and promotion of legal systems reflects
its status as an ideal principle of social organization. Quite simply, the ideal of the
rule of law refers to the situation of a social order subject to a legal system (as
opposed to a society where bare power governs9). But there is more to just the
presence of law as a counterpoint to unbounded power: the rule of law is regarded
as an ideal because it envisions a social order in which law would govern the lives of
society members in a way that is not arbitrary, and not oppressive. In this
connection, the ideal lies in the notion that the rule of law, when achieved, is a proxy
to social harmony.10 This faith in the rule of law is particularly well reflected in the
recent Declaration of the High-Level Meeting of the UN General Assembly on the
Rule of Law at National and International Level. The Declaration opens by a
reaffirmation of the General Assembly of its ‘solemn commitment to the purposes
and principles of the Charter of the United Nations, international law and justice, and
to an international order based on the rule of law, which are indispensable
foundations for a more peaceful, prosperous and just world.’11
Still, the multiple references to the rule of law as an overarching policy objective
often sound rather hollow. Some consider the promises which the rule of law heralds
in terms of economic growth, democratic legitimacy or respect for human rights
largely unsubstantiated. The rule of law would unwarrantedly be presented as ‘the
6 The Rule of Law Coordination and Resource Group is composed of the Department of Political Affairs
(DPA), the Department of Peacekeeping Operations (DPKO), Office of the High Commissioner for Human Rights (OHCHR), the Office of Legal Affairs (OLA), United Nations Development Programme (UNDP), The United Nations Children’s Fund (UNICEF), The Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) and the United Nations Office on Drugs and Crime (UNODC). It is chaired by the Deputy Secretary-General. See http://www.unrol.org/article.aspx?article_id=6. The Rule of Law Unit was incepted in 2006 and acts as a secretariat to the Resource Group. It is part of the
Secretary-General’s Executive Office. It now has a special website dedicated to the activities of the UN on the rule of law: http://www.unrol.org/. 7 See, for example, International Center for Transitional Justice, ‘Strengthening international law: The
Rule of Law and the Maintenance of International Peace and Security’, Statement delivered at the UN Security Council ‘Arria Formula’ Meeting of 20 June 2006, available at http://www.ictj.org/images/content/5/6/566.pdf. For a general overview of the contribution of NGOs to rule of law efforts in the context of transitional justice programmes, see Eric Brahm, ‘Transitional Justice, Civil Society, and the Development of the Rule of Law in Post-Conflict Societies’, 9 International Journal of Not-for-Profit Law 62 (2007), available at
http://www.icnl.org/KNOWLEDGE/IJNL/vol9iss4/vol9iss4.pdf. 8 The Geneva Academy of International Humanitarian Law and Human Rights for example leads a ‘Rule
of Law in Armed Conflicts (RULAC) Project,’ reporting most notably on the status of application of international law in armed conflicts. See http://www.adh-geneva.ch/RULAC/index.php 9 The ideal notion of ‘government according to law’ forms one of Aristotle’s Politics’ foundational
thoughts. See Aristotle, Politics, Book III, part 14. The breadth of the recognition of the ideal is visible in the fact that a Marxist thinker like E.P. Thompson, for whom liberal doctrines like the rule of law form part of the Bourgeois tradition, characterizes the rule of law as an unqualified human good. Edward Palmer Thompson, Whigs and Hunters: The Origins of the Black Act, London, Lane, 1975, at 266. 10
At least in complex societies. Hart has famously remarked that what he called ‘primitive’ communities did not need a legal system in order to achieve social harmony, as tight interpersonal relationships and a few foundational principles were sufficient. However, once the community becomes larger and more diverse, the conditions of such harmony vanish and a legal system is needed. See Herbert L.A. Hart, The Concept of Law, Clarendon Law Series, Oxford, Oxford University Press, 2
nd ed., 1994, at 91.
11 UN General Assembly, supra note 4, para. 1.
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panacea’ while in fact it obscures the policy debate and confuses the actors on the
ground.12 In other words, the rule of law would be little more than a slogan,13
sounding like ‘hooray for our side’.14
Yet at the same time, the ideal is there, and everywhere it is invoked, pursued and
fought very hard for.15 Even some of the authors most critical of rule of law-oriented
agendas (notably in transition countries) recognize that its promotion should be a
priority.16 However, they insist that policymakers who invoke the rule of law do not
provide a clear idea of how its promotion should be undertaken, or what the concept
actually entails.17 As will become clear below, discussions on the precise meaning
and content of the rule of law (beyond the simple expression of the ideal) are far
from being settled,18 and the debate is rendered fuzzier by the fact that progress in
‘rule of law performance’ is, as one can expect, particularly arduous to measure.19
This paper seeks to reaffirm the ideal character of the rule of law as a guiding
principle for organizing life in society. However, we also acknowledge the fairness of
the above criticism (section 2.1). Therefore, we suggest a new articulation of the
concept of rule of law. This new articulation is based on the links we uncover
between the rule of law and legal validity (section 2.2). We argue that the rule of law
ideal is best pursued by legal systems which use a multidimensional conception of
legal validity, understood in relation to the various ways in which a legal system
should ideally connect to the social order it claims to govern. The study of this link
yields an evaluative notion of rule of law that is ambitious yet realistic about what it
can achieve (section 2.3). We then flesh out the conditions that need to be realized
in society in order to achieve the rule of law (section 2.4). We conclude by
propounding a ‘benchmarks approach’ for fruitfully promoting the rule of law (section
3).
12
See generally Balakrishnan Rajagopal, ‘Invoking the Rule of Law in Post-conflict Rebuilding: A Critical Examination’, 49 William & Mary Law Review 1347 (2008), and more particularly at 1349: ‘the invocation of the rule of law hides many contradictions among the different policy agendas themselves, such as between development and human rights or between security and human rights, that cannot be fully resolved by invoking the rule of law as a mantra.’ 13
Judith Shklar, ‘Political Theory and the Rule of Law’, in Allan Hutcheson & Patrick Monahan (eds.), The Rule of Law: Ideal or Ideology, Toronto, Carswell, 1997, at 1. 14
Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, 21 Law and Philosophy 137 (2002), at 139. 15
Jamie Rowen, ‘Social Reality and Philosophical Ideals in Transitional Justice’, 7 Cardozo Journal of Public Law, Policy and Ethics 93 (2008), at 93 ff. 16
See Rajagopal, supra note 12; Carothers, supra note 1, at 99. 17
Veronica Taylor, ‘Frequently Asked Questions about Rule of Law Assistance (And Why Better Answers Matter)’, 1 Hague Journal on the Rule of Law 46 (2009). 18
See Rachel Kleinfeld Belton, ‘Competing Definitions of the Rule of Law’, Carnegie Papers – Rule of Law Series, No. 55, January 2005, available at http://www.carnegieendowment.org/files/cp55.belton.final.pdf (identifying ‘at least five separate meanings or end goals’ for the rule of law). 19
Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’, in Gianluigi Palombella and Neil Walker (eds.), Relocating the Rule of Law, Oxford, Hart Publishing, 2009, at 45. An attempt at measuring rule of law performance is the World Justice Project’s ‘Rule of Law Index’, available at http://worldjusticeproject.org/rule-of-law-index/.
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2. RECONCEPTUALIZING THE RULE OF LAW AS A WORKABLE IDEAL
2.1 THE TERMS OF THE DEBATE: NEGATIVE VS. POSITIVE, THIN VS. THICK AND FORMAL
VS. SUBSTANTIVE CONCEPTIONS
As indicated above, the rule of law has historically been associated with societies in
which the arbitrary rule of the powerful is curtailed, because the behavior of all society
members (including its rulers) is guided by law. The sense of objectiveness conveyed
by the law somewhat relieves people from the fear that they may be abused by the
mighty, in particular those governing them. Under the rule of law, even when there
are disputes, society members may expect that the said disputes will be settled
objectively and peacefully in accordance with predefined rules and procedures.
Likewise, citizens may expect that they will only be physically compelled to act in a
certain manner under conditions provided for by laws known in advance. The rule of
law could in this sense be seen as an antithesis of Hobbes’ state of nature, in which
men compete against each other in a permanent state of war of all against all, and in
which the powerful typically prevail.20
Starting from there, the rule of law can be approached from two opposite viewpoints.
A first and negative conception of the rule of law focuses on its defensive function.
The main objective of the rule of law would be to shield society from the arbitrariness
of power contests as the conduct of society members is guided by rules.21 The mere
fact that there are rules does not in and of itself guarantee a just legal order, but may,
if all goes well, eventually result in it.22 The rule of law can also be conceived from a
second, more positive perspective. Such conception builds on the idea that law is an
instrument for realizing a social project, in line with the ideas of John Rawls, who
defines a legal system as ‘a coercive order of public rules addressed to rational
persons for the purpose of regulating their conduct and providing the framework for
social cooperation.’23 In this vein, just any rules are not sufficient. They must actually
reflect the pursuance of a social project24 and change the ‘fate’ of the women and
men being part of it.25 In this more ambitious conception, the social project must be at
the core of the system of rules for the rule of law to actually mean anything.26
Admittedly, such theoretical views about the ends of the rule of law do not say much
about what the rule of law actually is. Attempted definitions have abounded,
20
Thomas Hobbes, Leviathan (1651, Richard Tuck ed.), Cambridge, Cambridge University Press, 1996, at 86-90. 21
Martin Krygier, ‘False Dichotomies, True Perplexities, and the Rule of Law’, in András Sajó (ed.), Human Rights with Modesty – The Problem of Universalism, Leiden/Boton, Martinus Nijhoff Publishers, 2004, at 256 ff. 22
Joseph Raz, ‘The Rule of Law and its Virtue’, in Joseph Raz, The Authority of Law – Essays on Law and Morality, Oxford, Clarendon Press, 1979, at 224-225. 23
John Rawls, A Theory of Justice, Oxford, Oxford University Press, 1999 (revised edition), at 207. 24
Rawls frames this in terms of ‘Liberty’ and ‘Justice’, ‘Justice’ being understood as forming the ‘basic structure’ of the social contract, more precisely defined as ‘the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association.’ Id., at 10. 25
Frank I. Michelman, ‘Law’s Republic’, 97 Yale Law Journal 1493 (1988), at 1503. 26
This opens the door to value-laden contests according to the kind of social project the rule of law is or is not supposed to support. The rule of law is, in turn, associated with liberty, or with fairness and human dignity. See Jeremy Waldron’s account of Hayek’s and Finnis’ works in Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, 21 Law and Philosophy 137 (2002), at 158 (fn 57-58). See also generally Rawls, supra note 23, at 206-213.
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particularly since the end of the 19th century. It is important to engage with the issue
of definition here, as the confusion associated with the term forms an obstacle to its
successful operationalization for policy purposes. From a definitional point of view,
accounts of the rule of law can roughly be divided into ‘formal’ and ‘substantive’
conceptions thereof.27 They will each be presented in turn, after which we criticize
them and present our own conception.
Formal conceptions of the rule of law are characterized by their focus on the form of
so-called rule of law-compliant legal rules, rather than on the content of such rules or
on the values they pursue. Given their minimalistic content, these conceptions are
often labeled ‘thin’. Formal conceptions present the rule of law as a ‘law of rules,’28
that is, as a social order which is governed by rules defined in advance, and which
are sometimes considered as required to meet a certain number of conditions framed
as formal qualities. The most famous articulation of such conditions is probably the list
drawn up by Lon Fuller and constituting the elements of what he called the ‘internal
morality’ of the law.29 Fundamental qualities of the law in formal rule of law
conceptions revolve around issues of generality, predictability and publicity:
individuals must be able to know in advance what the rules are so as to plan their
conduct accordingly.30 This is why the rule of law is often associated, if not equated,
with legal certainty.31 This is a keystone of liberal thought which considers that legal
certainty is a prerequisite to the fullest exercise of one’s liberty.32 Next to purely formal
qualities, institutional elements are also put forward as necessary to the rule of law.
The existence of an independent judicial system and of effective law-enforcement
agencies applying the rules with due process are accordingly deemed a crucial
element of the rule of law, as it supposedly guarantees that the general character of
the law will be reflected in its application.33 Insistence on the notion that the law must
be effective and equally applicable, including in relation to the authorities, is therefore
27
For discussions of such classifications and their implications, see Brian Z. Tamanaha, On the Rule of Law – History, Politics, Theory, Cambridge, Cambridge University Press, 2004, at 91 ff.; Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, Public Law 467 (1997); Stéphane Beaulac, ‘The Rule of Law in International Law Today’, in Palombella & Walker, supra note 17, at 201. 28
Antonin Scalia, ‘The Rule of Law as a Law of Rules’, 56 University of Chicago Law Review 1175 (1989). 29
These elements can be summarized as follows: 1. the law should be general (‘there must be rules’); 2. the law must be promulgated; 3. the law should not be retroactive; 4. the law must be clear; 5. the law should not be self-contradictory; 6. the law must not require the impossible; 7. the law should be reasonably constant through time; 8. there should be congruence between the declared rule and official action. See Lon Fuller, The Morality of Law, New Haven & London, Yale University Press, 1969 (revised
edition), pp. 41-90. 30
Scalia, supra note 28, at 1179. 31
Raz, supra note 22, at 210, François Ost & Michel van de Kerchove, De la Pyramide au Réseau? Pour une Théorie Dialectique du Droit, Brussels, Publications des Facultés universitaires Saint-Louis,
2002, at 328. 32
See generally Friedrich von Hayek, The Constitution of Liberty, Chicago, The University of Chicago Press, 1978. 33
The 19th century British constitutional Scholar Albert Venn Dicey already emphasized this in his three-pronged articulation of the rule of law: 1. ‘The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power’; 2. ‘Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’; 3. ‘The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.’ See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, London, Macmillan, 1885. See also Scalia, supra note 28, engaging common law systems, in which judges have law-making power, with such conceptions of the rule of law.
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central to the thin rule of law school.34 The conjunction of these elements is supposed
to result in a system of rules operating under rule of law conditions: society is ruled by
law, not men, and the people are shielded from arbitrariness. From there, the rule of
law is seen as having an ‘instrumental’ impact on the social order: rule of law formal
conditions, if followed by the legal system, will be instrumental in shaping a fair and
just social order. However, the rule of law must in no way be seen as including per se
any substantive agenda. The rule of law ensures that there are effective rules of a
certain formal quality, but what those rules say is mostly outside of its scope.35
Such formal or instrumental conception has been criticized on account of the fact that
its substantive vacuity could potentially accommodate quasi-dictatorial regimes
pursuing freedom-killing or human rights-violating agendas.36 For some authors, this
is not contradictory. Joseph Raz puts is somewhat provocatively as follows:
[the rule of law] must not be confused with democracy, justice, equality (before the
law or otherwise), human rights of any kind or respect for persons or for the dignity of
man. A non-democratic legal system, based on the denial of human rights, on
extensive poverty, on racial segregation, sexual inequalities, and religious
persecutions may, in principle, conform to the requirements of the rule of law better
than any of the legal systems of the more enlightened Western democracies. This
does not mean that it will be better than those Western democracies. It will be an
immeasurably worse legal system, but it will excel in one respect: in its conformity to
the rule of law.37
And indeed, the third Reich could arguably have qualified under this conception as
being governed by the rule of law.38 Yet, critique of this sort of regime would be the
domain of morals, not of whether or not the rule of law exists.39 One cannot help but
being puzzled when faced by these potential implications of the thin rule of law,
because it offers no guarantee that it will change the life of society members for the
34
Dicey, supra note 33. See also Margaret Jane Radin, ‘Reconsidering the Rule of Law’, 69 Boston University Law Review 781 (1989), at 785. 35
Id. at 791: ‘The rule of law in a formal conception thus answers the question ‘how to do things with rules?’ but not the question ‘what things?’.’ See also Dworkin’s ‘rulebook’ conception of the rule of law: ‘the rule-book conception is, in one sense, very narrow, because it does not stipulate anything about the content of the rules that may be put in the rule book. It insists only that whatever rules are put in the book must be followed until changed. Those who have this conception of the rule of law do care about the content of the rules in the rule book, but they say that this is a matter of substantive justice, and that substantive justice is an independent ideal, in no sense part of the ideal of the rule of law.’ Ronald Dworkin, A Matter of Principle, Cambridge, Harvard University Press, 1985, at 11. 36
Daniel H. Cole, ‘“An Unqualified Human Good”: E.P. Thompson and the Rule of Law’, 28 Journal of Law and Society 177 (2001), at 187. 37
Raz, supra note 22, at 211. 38
Tamanaha, supra note 27, at 108. Gustav Radbruch is also said to have grown defiant of legal
formalism after he realized that Nazi law was allowed to thrive unhindered as its agenda was not challengeable legally as long as it complied with the forms prescribed by the legal system of the time. See Gustav Radbruch,’Gesetzliches Unrecht und übergesetzliches Recht’, Süddeutsche Juristenzeitung 105 (1946), p. 107. 39
Tamanaha, supra note 27 at 95: ‘Like a knife, which is neither good nor bad in itself, but can be used to kill a man or to slice vegetables, the morality of law is a function of the uses to which it is put. The rule of law in the service of an immoral legal regime would be immoral. Clarity and consistency of application with respect to pernicious laws – like legalized slavery – makes the system more evil, enhancing its draconian efficiency and malicious effect. Whether a legal regime merits support, from this perspective, is not a question of whether it respects the rule of law (though that may be a part of the evaluation), but of the moral import of the content of laws, their application, and their consequences.’
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better.40 At this rate, any good that can come from the rule of law is only the result of
speculation about whether the rules it presupposes will be just and fair.41
However, in the eyes of the layman who views the rule of law as an ideal, having
clear and general rules for the sake of having them does not make sense, unless
these rules are good in themselves. The ambitions of the formal conception of rule of
law are so modest that the idealness of the concept seems to vanish.42 Worse, the
emphasis on form and process may positively harm one of the most basic tenets of
the rule of law ideal: to prevent arbitrariness and the oppression of the weak by the
powerful.43 Oppressive regimes abiding by such form and process tend to invoke the
rule of law to claim respectability for their actions. In the end, the so-called rule of law
becomes an instrument of oppression and a contradiction in itself. Such oxymoronic
outcomes can hardly be regarded as the ideal of non-oppression or non-arbitrariness
which even the most hardcore formalists refer to.44 Finally, the overconfidence of
formal conceptions of the rule of law in its ‘spillover’ effects45 leads to what authors
call ‘goal diversion.’ An illustration of such phenomenon is said to be the fact that
development assistance would tend to promote the rule of law as an end in itself,
assuming it will foster development, rather than design specific development
programs.46
In the face of this, scholars have attempted to present alternative accounts of the rule
of law, focusing less on form and process, and more on the values they want it to
achieve, promote or embody. These are labeled ‘substantive’ conceptions of the rule
of law, and are arguably of the ‘thick’ kind as compared to the formal ones. They
insert into the concept of rule of law itself values such as dignity, freedom, fairness,
justice, democracy, and/or human rights. According to such conceptions the rule of
law does not exist in a society if its legal system is not specifically intended and
designed so as to operationalize such values. Conversely, if such values are not
present in a legal order, the latter is deemed not to function in accordance with the
rule of law. These substantive conceptions can be linked to the idea that law must
inherently be connected to the normative social ethos when acting as an instrument
of social regulation and therefore the legal system must internally reflect the
aspirations of society.47 Therefore, the rule of law does not only have formal elements
40
Krygier, supra note 19, at 54. 41
Raz, supra note 22, at 214. 42
Finnis calls thin conceptions of the law and of the rule of law (taking the example of a rule of law authorizing a tyrant to do what he wills) ‘rather uninteresting.’ (John Finnis, Natural Law and Natural Rights, Oxford, Clarendon Press, 1980, at 272). Waldron calls it an ‘impoverished account of the Rule of Law, which treats everything besides the determinacy of the rules as though it did not matter.’ (Jeremy Waldron, ‘The Concept and the Rule of Law’, 43 Georgia Law Review 1 (2008), at 61). 43
See already John Locke, Second Treatise of Government (1690, Crawford B. Macpherson ed.)¸ Indianapolis, Hackett Publishing, 1980, § 199. 44
Raz, supra note 22, at 210. 45
See Richard A. Epstein, ‘Beyond the Rule of Law: Civic Virtue and Constitutional Structure’, 56 George Washington Law Review 149 (1987). 46
Frank Upham, ‘The Illusory Promise of the Rule of Law’, in Sajó, supra note 21, at 280; Rajagopal, supra note 12, at 1363. 47
Radin, supra note 34, at 792: ‘The substantive conception is a model of government by rules to
achieve the goals of the social contract: liberty and justice. The instrumental [formal] conception purports to be more general and ahistorical; the substantive is more clearly bound up with our particular modern ideological heritage.’
10
but also substantive ones, which are inherent to it.48 An example of such a
substantive conception can be found in the 2004 report of the UN Secretary-General
on ‘The rule of law and transitional justice in conflict and post-conflict societies’:
The ‘Rule of Law’ is a concept at the very heart of the Organization’s mission. It refers
to a principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated, and which are
consistent with international human rights norms and standards. It requires, as well
measures to ensure adherence to the principles of supremacy of law, equality before
the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency.49
The UN General Assembly has recently resolutely espoused this approach in a
Declaration, in which it recognizes that, as regards all states and international
organizations, ‘respect for and promotion of the rule of law and justice should guide
all of their activities and accord predictability and legitimacy to their actions.’50 The
General Assembly here explicitly moves away from the thin conception of the rule of
law focused solely on predictability, and embraces the notion that the rule of law adds
legitimacy to a legal system. A closer reading of the Declaration makes clear that
such legitimacy is, in the General Assembly’s understanding, not primarily bestowed
by formal elements, in the vein of Lon Fuller’s ‘internal morality’ conception, but rather
by its ‘interrelation’ with a quite impressive list of substantive elements which the
Declaration lengthily expounds. Even though it is not always clear whether the
General Assembly considers those elements to be part and parcel of the rule of law,
or simply in a virtuous relationship with it, some of the following elements are said to
share an intimate bound with the rule of law: fairness, justice, equity, non-
discrimination, territorial integrity and political independence, democracy, human
rights and fundamental freedoms, (sustainable) development, good governance and
the ‘equitable delivery of public services’. For the operationalization of the rule of law
and its values, the Declaration cites a large number of international treaties and
instruments such as the Charter of the United Nations, international human rights law,
international economic law and humanitarian law. It also identifies the institutions
which are instrumental in the advent of the rule of law, among which figure
representative policymaking and standard-setting institutions such as the General
Assembly, law-enforcement institutions maintaining peace and security such as the
48
Id., at 787 ff., citing Rawls and Moore as examples, and quoting the latter: ‘“the rule of law virtues” constitute morally real values that must be part of judicial decisionmaking if judges are to reach morally right answers.’ (at 810) This is a clear attack on the instrumental conception, which speculates on moral ‘spillovers’ that the formal qualities of the rules may (or may not) produce. Likewise, at its 1965 Conference on Economic and Social Development within the Rule of Law in Bangkok, the International Commission of Jurists stated that ‘[t]he Rule of Law requires the establishment and observance of certain standards that recognize and foster not only the political rights of the individual but also his economic, social and cultural security.’ See http://www.globalwebpost.com/genocide1971/h_rights/rol/8_econ_soc.htm. 49
UN Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies – Report of the Secretary-General’, supra note 5, at 4, para.6. See also Dworkin’s ‘rights conception’ of the rule of law, which assumes that people have innate moral and political rights, and that the rule of law according to this model ‘is the ideal of rule by an accurate public conception of individual rights.’ Dworkin, supra note 35, at 11-12. 50
See UN General Assembly, supra note 4.
11
Security Council, and international courts and other dispute settlement mechanisms.
All this paints a very ambitious picture of the rule of law in which substantive values,
formal requirements, but also an impressive institutional apparatus, combine into a
complex set of ‘building blocks’ for a just and peaceful world.
This kind of thick/substantive conception of the rule of law is criticized as well on a
number of accounts. First, it is accused of mixing up the rule of law with other
theoretical or philosophical notions which belong to their own separate domain.51
Joseph Raz famously warned against turning the rule of law into a complete social
philosophy by conflating it with moral values.52 Substantive theories of the rule of law
would bring confusion among philosophical concepts as well as in the concrete
actions of those supposed to promote it where needed.53 In addition, the insertion of
value-laden elements in the notion of rule of law would make it subject to ideological
criticism.54 It would be impossible to defend a substantive conception of the rule of
law without at the same time having to justify its inevitably divisive substantive
underpinnings. This would reduce its potential for acting as an ideal yardstick for
evaluating the quality of a legal order. Finally, in the particular context where the rule
of law must be actively promoted (in transition countries for example) such
conceptions of the rule of law would open the door to the export of legal mechanisms
or moral values which are not germane to the local conditions. This ‘ideological
imperialism’ is criticized by academics and practitioners alike.55
2.2 THE RULE OF ‘VALID’ LAW’
The above criticism of both the formal and substantive notions of the rule of law is
undoubtedly valid. As Jeremy Waldron notes, the rule of law is an ‘essentially
contested concept.’56 He adds to it that this may be good, since contestation and
debate help deepen and enrich our understanding of the rule of law.57 However, when
a disputed concept must be operationalized, the situation becomes problematic. We
suggest that the contestability of the concept lies in the fact that defining the rule of
law on the basis of independent qualities to be attached to legal rules is essentially
misguided. In our opinion the debate about the rule of law should be refocused on
defining the right conditions for the very operation of the legal system, and not on a
51
Richard H. Fallon, ‘“The Rule of Law” as a Concept in Constitutional Discourse’, 97 Columbia Law Review 1 (1997) at 54: ‘a pervasively substantive conception of the Rule of Law would risk obliteration of the analytically and politically useful distinction between the Rule of Law, on the one hand, and a full theory of substantive justice, on the other.’ 52
Raz, supra note 22, at 211: ‘If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy.’ 53
Rajagopal, supra note 12, at 1349: ‘Focusing attention on the rule of law as a broad, if not lofty,
concept, diverts attention from the coherence, effectiveness, and legitimacy of specific policies that are pursued to ensure security, promote development, or protect human rights. The rule of law agenda threatens to obfuscate the real tradeoffs that need to be made in order to achieve these worthy goals.’ 54
See Dworkin’s discussion of the ‘rights conception’ of the rule of law in regard of this criticism: Dworkin, supra note 35, at 13. 55
See Ruti Teitel, ‘Global Rule of Law: Universal and Particular’, in Sajó, supra note 21, at 231 (confronting international criminal justice and relevant local politics); Shelby R. Quast, ‘Rule of Law in Post-Conflict Societies: What Is the Role of the International Community,’ 45 New England Law Review 39 (2004); Rowen, supra note 15; Carothers, supra note 1. 56
Waldron, supra note 26. 57
Id., at 162 ff.
12
checklist of formal or substantive qualities that legal rules may or may not have.58 59
To us, achieving the rule of law is not about individual legal rules complying with the
‘rule of law’ and its battery of conditions,60 but rather about whether the mechanics
and operation of the legal system are conducive to the ideal of the rule of law, i.e. the
ideal of a society in which legal rules are a vector of social harmony, and not a vector
of oppression or arbitrariness.
Needless to say, the fact that a legal system functions according to the rule of law
also means that it produces rules of a certain formal and substantive quality.61 Yet to
us such qualities are not predefined or inherent to the notion of rule of law, so that no
rule of law ‘laundry list’62 can credibly be established. In our conception of the rule of
law, the rule of law-compliant form and content of legal rules are determined by each
social order and are ‘ideal’ to each social order individually.63 The legal system must
then be designed, adapted and operated in express consideration of those
determinations. This is the intended result of the rule of law: that the social order be
governed, through a ‘legal system,’ by rules which are ‘ideal’ by that social order’s
standards. This objective is thus temporally and spatially relative, and renders moot
any debate about any final list of formal or substantive qualities that legal rules should
allegedly always have in order to realize the rule of law.
At this juncture, the obvious question becomes: how can this contextual determination
of the ideal qualities of the law happen, and how can its operationalization through the
legal system be effected? Let us start answering this question with the following,
almost tautological, premise: the rule of law as an ideal principle of social organization
is dependent on the existence of law. One is then confronted with the challenge of
informing one’s conception of the law before being able to talk about the rule of law.64
The debate about the ‘concept’ or ‘nature’ of law is now largely conditioned by the
positivist/non-positivist dichotomy. Many scholars however consider that the rule of
law is possible whenever an effective legal system can reasonably be said to exist:
where there is law, there can be a rule of law, regardless of whether such legal
58
See Waldron, supra note 42, at 11: ‘The Rule of Law is an ideal designed to correct the dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular. Indeed the Rule of Law aims to correct abuses of power by insisting on a particular mode of the exercise of political power: governance through law.’ See Finnis’ discussion of the ‘institutional aspect of the rule of law’ (in which a well-functioning judiciary holds a great role according to him): ‘[the legal system] cannot be understood as merely a set of “rules” as meaning-contents. None of the eight [rule of law-defining] desiderata is merely a characteristic of meaning-content, or even of the verbal expression of a meaning-content; all involve qualities of institutions and processes.’ Finnis, supra note 42, at 271. 59
One way of illuminating our purpose as to this proposition is to reflect in terms of Hart’s seminal distinction between primary rules (duties and obligations) and secondary rules (rule of recognition, see infra), or between the law itself and the sources of law. See Herbert L.A. Hart, The Concept of Law, Clarendon Law Series, Oxford, Oxford University Press, 2
nd ed., 1994, at 91 ff.
60 This proposition is defended, among others, by Joseph Raz, who states that ‘the rule of law is the
inherent value of the law.’ (Raz, supra note 22, at 226) 61
See Hart, supra note 59, at 124 ff., notably discussing the requirement of generality in rules, and their necessary indeterminacy, resulting from what he calls the ‘open texture of law.’ 62
According to Jeremy Waldron’s word. See Waldron, supra note 26, at 154. 63
See already Montesquieu, The Spirit of Laws (1748, trans. Thomas Nugent, 1752), Kitchener, Batoche Books, 2001, at 23: ‘[Laws] should be adapted […] to the people for whom they are framed that it should be a great chance if those of one nation suit another.’ See also generally Krygier, supra note
19. 64
Waldron, supra note 42, at 59: ‘[The rule of law] represents a natural trajectory of normative thought projected out from the normative significance of law’s defining features.’
13
system functions according to a positivist or non-positivist logic.65 As we have shown
in the above section, once a legal system has been deemed to be in existence in a
given social order, efforts to identify what turned such legal system into a rule of law
have focused on establishing a list of features representing the conditions allegedly
preventing it from generating oppression or arbitrariness, and helping it promote
social harmony.66 We wish to regress the reasoning further, by looking at qualities of
rules that represent their inherent value as law, namely the conditions of the law’s
validity, and see whether or not these can have an effect on whether or not the legal
system is promoting the rule of law ideal.67
Validity is the characteristic of a norm which is determinative of its status as law, and
in the context of a particular social order, it is the criterion that defines whether or not
such norm belongs to that social order’s legal system. This means that a rule’s validity
makes it part of a complex of other valid rules which together claim to govern society,
to decide of its course and to guide the behavior of its members in a binding manner
and with the help of coercion mechanisms.68 As indicated above, those rules and the
legal system it belongs to can be oppressive or not. They can embrace the rule of
law, or be another instrument of the rule of the mighty. But what does this depend on?
What fundamentally makes a legal rule and the legal system instruments of
oppression or instruments of social harmony? This very question is at the center of
any questioning about the definition of the rule of law, and, in a departure from the
above formal and substantive rule of law conceptions, we believe that it should be
answered in light of the notion of validity.
For a rule to obtain a seal of validity in a particular legal system requires meeting a
number of ‘validity conditions’. Logically, the rule of law can only emerge if the social
order is governed mainly by rules which are labeled ‘law’, that is if those rules meet
the validity conditions that are prevalent under the legal system in place. We believe
that the nature of the conditions that a legal system requires to be filled for a rule to
be valid as law, have a definitive impact on whether or not such legal rule and,
ultimately, such legal system are oppressive and arbitrary, or on the contrary whether
they contribute to the rule of law in a given social order.
In the next section, we explain how conditions of validity not only condition whether or
not a rule qualifies as law, but also whether or not the legal system tends toward the
achievement of the rule of law through the rules it produces. Before delving into this,
let us restate once again that the rule of law ideal commands that the law acts as a
guarantee against oppression and arbitrariness within a social order, and thus in favor
of social harmony. In order for this to obtain, our contention is that the legal system’s
operation must successfully and systemically promote and realize what has been
called the ‘social contract.’ In other words, under the rule of law, the legal system is
65
Waldron fustigates this as ‘casual positivism.’ (Id., at 13 ff.) 66
Those conditions are described by Fuller as ‘kinds of legal excellence toward which a system of rules may strive.’ Striving towards these qualities represents an ‘aspiration towards perfection in legality.’ See Fuller, supra note 29, at 41. 67
Whereas the ‘inherent value’ of law is its validity, the ‘inherent value’ of a legal order would be its compliance with the rule of law, see infra. Finnis calls it its ‘specific virtue.’ (Finnis, supra note 42, at
270.) 68
On validity, see George Christie, ‘The Notion of Validity in Modern Jurisprudence’, 48 Minnesota Law Review 1049 (1964).
14
supposed to embody, through the rules its produces, this bedrock of principles under
which the members of society agree that living as a community becomes more
valuable than not.69 Willful or careless deviation from the social contract by the legal
system can be regarded as oppression. Related to the question of the production of
legal rules, validity conditions determine the difference between fact and law,70 but
more importantly the difference between law as oppression and law as harmony.
Validity is thus at the heart of any elucidation of the rule of law understood as a tool
for the evaluation of legal systems.
2.3 LEGAL VALIDITY AS CONNECTEDNESS
As indicated above, the way validation conditions are defined, and the way the
validation process is operationalized in a legal system are determinative of the ethos
of the law. The legal system’s conditions and procedures for making rules may be
crafted so as to ensure that those rules are regarded by the social order as pursuing
the social contract, or be such that the law is regarded as pursuing objectives that are
foreign to it (making it oppressive and arbitrary). Validity conditions are therefore the
main element to be examined in order to analyze whether or not a given legal system
pursues the ideal of the rule of law: if validity conditions allow for oppressive and
arbitrary rules to become law, the rule of law will not be achieved. On the contrary, if
validity conditions ensure that the law does not oppress or treat arbitrarily those that
are subject to it, the rule of law may emerge. In the next paragraph, we seek to
uncover what sort of validity conditions may yield this latter result.
2.3.1. A RULE OF LAW-ORIENTED CRITIQUE OF POSITIVIST AND JUSNATURALIST THEORIES
OF VALIDITY
As indicated above, legal validity is often confined to the positivistic question of
‘formal validity’ or ‘legality’. For a positivist, the question of the legal validity of a given
rule is limited to determining whether the said rule meets a ‘master test’ composed of
conditions which are internal to the system itself,71 and in any case devoid of
69
We use the term ‘social contract’ out of some sort of convention of discourse. Other, perhaps better specified, concepts are used to describe similar realities (though with important nuances as to their meanings). See for example Dworkin’s model of ‘community of principle’ which ‘insists that people are members of a genuine political community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles, not just by rules hammered out in political compromise. […] Members of a community of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend, more generally, on the scheme of principle those decisions presuppose and endorse.’ (Ronald Dworkin, Law’s Empire, Oxford, Hart, 1998, at 211). Such community of principle
‘treats legislation as flowing from the community’s present commitment to a background scheme of political morality.’ (Id., at 346). Rawls, in his discussion of democratic constitutional order, introduces the interesting concept of ‘public reason’ which ‘specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another’ (and which is to be distinguished from the ‘background culture’ or ‘culture of civil society’). See John Rawls, ‘The Idea of Public Reason Revisited’, in The Law of the Peoples (with The Idea of Public Reason Revisited), Cambridge, Harvard University Press, 1999, at 132-133. Radin refers to the powerful image of a social ‘nomos’: see Radin, supra, note 34, at 815, fn.118 70
Ost & van de Kerchove, supra, note 31, at 309: ‘On note, au passage, l’intérêt pratique et politique de cette question [de la validité]: elle touche à rien moins qu’au passage du fait au droit, cette mystérieuse alchimie sociale qui transforme le fait brut du pouvoir en autorité accréditée ou encore qui fait d’une normativité pré-juridique une norme légale en bonne et due forme.’ Emphasis added. 71
See id., at 327, and Finnis (though not a positivist), supra note 42, at 268: ‘The primary legal method of showing that a rule is valid is to show (i) that there was at some past time, t1, an act (of a legislator, court, or other appropriate institution) which according to the rules in force at t1 amounted to a valid and
15
necessary moral content.72 Those conditions have to do with forms (was the rule cast
as the right instrument, i.e. statute, decree, is it drafted in the right language, was it
published, etc.?), competence (was the body or official adopting the rule competent to
do so?), procedure (e.g. was the rule adopted at the right majority?), and even with
content, though in reference to formal hierarchical relationships (was the rule
compliant with the norm above it?). From the system’s point of view, once those
conditions are met, the validity of the law normally suffers no contestation: it can be
positively asserted, and is claimed to be binding and worthy of being enforced. But
whether the social order regards the law as equally valid, that is, literally, in good
shape for serving the purpose for which it was intended, is not that evident. For
example, ‘anything that the tyrant decides is law’ is an acceptable master test from a
purely positivist perspective. Is this likely to be regarded as a valid test by a social
order for the purpose of its regulation? And is it likely to lead to the rule of law? The
answer has every chance to be no. Accordingly, a positivistic conception of validity is
compatible with oppressive legal systems. Therefore, from the point of view of the rule
of law ideal, a purely positivistic conception of law is no systemic relief.73
At the other end of the spectrum, jusnaturalists pick up on this critique and consider
that, in order for the law not to espouse immoral ends, an appropriate validity test
must take the form of a test of compliance with moral standards that are external to
the legal system. They can be of religious origin, or the expression of an immanent
and inescapable body of ‘natural law’.74 Such conception of validity, were it to be
made operational in a legal system (a theocracy, for instance), is however quite
unlikely as well to lead to the rule of law ideal, as disagreement is bound to burst at
some point on the content of the ‘higher substantive standards’ (all the more in the
increasingly pluralistic societies of our times), so that rules enacted in reference to
them will be regarded as oppressive by those who reject them.
According to Ost and van de Kerchove, genuine validity as law should therefore not
only be made dependent on a master test that the legal system determines for itself,
and even less on an inescapable moral test. Validity is in fact very much conditioned
by the relevant rule’s reception within the social order. Once recognized as law under
a legal system’s internal conditions, the rule is then presented to the social order and
therefore operative act of rule-creation, and (ii) that since t1 the rule thus created has not determined (ceased to be in force) by virtue either of its own terms or of any act of repeal valid according to the rules of repeal in force at times t1, t2 …’ 72
The principle of the separation of law and morals is usually referred to as the ‘separation thesis’ and was inaugurated in Herbert L. A. Hart, ‘Positivism and the Separation of Law and Morals’, 71 Harvard Law Review 593 (1958). ‘Inclusive’ positivists however argue that it is ‘possible’ for a legal systems’
master test to include substantive elements of morality, though those requirements are not necessary, but contingent to each legal system. See Matthew Kramer, ‘On Morality as a Necessary or Sufficient Condition for Legality’, 48 American Journal of Jurisprudence 53 (2003). 73
In less extreme interpretations, even Hart recognizes that the master test (what he calls the ‘rule of recognition’) is one that is accepted and enforced by the ‘officials’ of the legal system, that is, in short, the elites, the judges, law enforcement officials, etc. (see Hart, supra note 59, p. 114). Such a legal system can easily be instrumentalized in oppressive and arbitrary ways for the benefit of these elites, and the formal conception of the rule of law will do little to counter that. 74
Thomas Aquinas, Summa Theologicae, Question 95, Article 2, Objection 4: ‘As Augustine says (De Lib. Arb. i, 5) “that which is not just seems to be no law at all”: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (91, 2, ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.’
16
‘claims’ authority, it ‘claims’ the right to be obeyed.75 This means that the
performativity of the law as a guide for behavior (the logical consequence of its
validity76) cannot entirely be explained by a determination of validity under a legal
system’s formal conditions or a moral test. If the claim to authority of a rule produced
by the legal system is rejected and society members continue to live their lives
without taking the said rule into account or if they only do so under physical
constraint, then the rule will not be valid, but rather lame from the point of view of its
reception by the social order.77 True validity does therefore not stop at the
determination by the system that the law meets objective formal conditions or
inescapable moral requirements: it also requires a perception of validity among the
social body, to be determined as much from an psychological and sociological
perspective as from a purely legalistic one. In this regard, these authors state that ‘is
valid the norm or the act about which it is recognized, in a given legal system, that it
may have the legal effect that its authors intended to give it.’78 As indicated, this
‘recognition’ which validity presupposes is not only the result of a mechanical
legalistic test of formalism or morality,79 but also mobilizes processes of social
recognition80 and of public perception.81 With regard to the rule of law, our hunch is
that, in order for a legal system to achieve the rule of law, its validity conditions must
not only be conceived in abstract formal or moral terms, but rather seek to take due
account of this external dimension of ‘reception’ in the public.
2.3.2. VALIDITY AS THE TRIPLE CONNECTION OF THE LEGAL SYSTEM WITH THE SOCIAL
ORDER
Our next step is the proposition that a richer conception of legal validity along the
lines described above82 must be at play in a legal system if it is to achieve the rule of
75
See Joseph Raz, ‘The Claims of Law’, in Joseph Raz, The Authority of Law, 2nd
ed., Oxford, Oxford University Press, pp. 28 ff. 76
See Sandra Laugier, ‘Performativité, Normativité et Droit’, 67 Archives de Philosophie 607 (2004). 77
See Ost & van de Kerchove, supra note 31, p. 312. 78
Id., at 309: ‘est valide la norme ou l’acte dont on reconnaît, dans un système juridique donné, qu’il doit sortir les effets que ses auteurs entendaient lui attribuer: un pouvoir est accordé, un droit est transmis ou attribué, une défense est comminée, un comportement est imposé, une faculté est ouverte, une procédure est mise en place…’. 79
See Waldron’s critical account of ‘casual positivism’, which limits its observation of the existence of the law to the existence of effective rules, supra note 65. 80
See Krygier, supra note 19, at 64: ‘what, in a particular society are the sources of and impediments to orienting one’s actions by law is essentially an empirical, socio-legal question to which we have few certain answers.’ Comp. with Hart’s model for the validation of rules as law, requiring a ‘rule of recognition’ (secondary rule) applying legalistic validation criteria. If the validity of the rules inside the legal system (primary rules) may be assessed in reference to the rule of recognition, the existence of the latter ‘can only be an external statement of fact. For whereas a subordinate rule of a system may be valid and therefore “exist” even if it is generally disregarded, the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria. Its existence is a question of fact.’ See Hart, supra note 59, at 110. 81
The existence of this ‘perception of validity’ may be achieved by way of ‘justification’ of the rule as to its legal validity, most notably as to its legitimacy. Legitimacy as a component of legal validity is understood as a complex of many elements relating to morals, ethics, pragmatism, etc.: ‘Valid legal norms […] harmonize with moral norms, but they are “legitimate” in the sense that they additionally express an authentic self-understanding of the legal community, the fair consideration of the values and interests distributed in it, and the purposive-rational choice of strategies and means in the pursuit of policies.’ See Jürgen Habermas, Between Facts and Norms – Contributions to a Discourse Theory of Law and Democracy (William Rehg trans.), Cambridge, Polity Press, 1996, at 155-156. 82
For early delineations of the ‘enriched’ conception of legal validity which we use in this paper, see François Ost, ‘Considérations sur la validité des normes et systèmes juridiques’, Journal des Tribunaux 1 (1984); Ernesto Garzon Valdes, ‘Algunos Modelos de Validez Normativa’, 3 Revista Latinoamericana de Filosofia 41 (1977).
17
law ideal. We propose to conceive of validity as an expression of the connectedness
of rules produced by the legal system with the social order. Validity should in this
approach be analyzed in a multidimensional fashion, as a function of the various
ways in which legal rules connect with the social order. In short, valid legal rules
should respond to fixed formal requirements so as to be easily and objectively
identified: this is the cognitive connection of the law with the social order.83 They must
at the same time act as guides of behavior so as to effectively ‘govern’ the social
order: this is the empirical connection of the law with the social order. Finally, they
must be congruent with the community’s aspirations (‘the social contract’), whatever
these may be: this is the axiological connection of the law with the social order. Only
when a connection between a rule and the social order reasonably happens along all
three dimensions can the said rule be regarded as valid in the full complexity of the
term.
In the next pages, we intend to elucidate the conditions allowing for validation to
happen along those lines in a given legal system. In doing so, we use the above
conception of legal validity, which is a the same time (i) plural, i.e. it depends on
formal criteria as well as on empirical and axiological criteria, (ii) relative, in the sense
that it is a matter of degree, and (iii) recursive, in that it depends to some extent on
the recognition of the law as such by those to which it is addressed.84 According to
the multidimensional theory of validity we are referring to, which we believe is likelier
to provide foundations to legal systems that are conducive to the rule of law, the
validity of the law derives from a complex of three qualities: legality (formal/cognitive
validity), effectiveness (empirical validity) and legitimacy (axiological validity).85
The validation of rules as law therefore not only results from a clear-cut formal test
verifying well-defined conditions, or from compliance with intangible higher norms, but
rather from an iterative process enmeshing formal elements (was the rule cast in the
appropriate form?), empirical elements (is the rule effectively guiding conduct?86), and
axiological elements (is the rule viewed as ‘appropriate’ and ‘justified’ by the members
of the social order?87). These elements are not the building blocks of an all-or-nothing
83
Legal certainty, liberty, predictability, etc. are one of the most essential qualities of the legal system, though not the only one. The gist of it is that under the rule of law, people must be able to know in advance the rules that constrain their behaviour, which is a progress compared to the unpredictable character of power contests that are characteristic of the absence of law. This is what Brian Tamanaha (supra note 27, at 36) has termed ‘legal liberty’. 84
These reflections are drawn from Ost’s & van de Kerchove’s synthesizing yet seminal work on the topic of legal validity. See supra note 31, at 309 ff. 85
See id. 324 ff. Full discussion of this tri-dimensional theory of legal validity is extensively available, and would take us too far, so in this contribution we limit ourselves to a few remarks which are relevant in relationship to the analysis of the rule of law. 86
If effectiveness should not be considered the main element of the ‘lawness’ of a rule, it is nonetheless widely accepted that valid law must ‘matter’ (Krygier, supra note 21, at 263), must be ‘effective in governing many – if not most – of the more important interactions and conflicts in a given society.’ (Waldron, supra note 40, at 43). See also Raz, supra note 22, at 213. 87
Legitimacy is intimately connected with a perception of appropriateness in the eyes of those concerned by the object under consideration. Bernstein & Cashore define ‘political legitimacy’ as ‘the acceptance of a shared rule by a community as appropriate and justified.’ (Steven Bernstein & Benjamn Cashore, ‘Can Non-State Global Governance Be Legitimate? An Analytical Framework’. 1 Regulation & Governance 347 (2007), at 348). On the links between rules, social values, and legitimacy, Jennifer Wallner argues that ‘[t]he substantive alignment of policy content with the dominant attitudes of society and the procedural elements found in the processes of policy development and implementation influence the perception of legitimacy.’ (Jennifer Wallner, ‘Legitimacy and Public Policy: Seeing Beyond Effectiveness, Efficiency, and Performance’, 36 Journal of Policy Studies 421 (2008), at 437). The conditions of such appropriateness and justification are multifaceted. See notably Richard H. Fallon,
18
construction. They are intimately tied to each other, such that failure in one of them
has a bearing on the achievement of the others, and progress in one also impacts
positively on the whole validity assessment.88 For example, authors have underlined
that rules that are perceived to be fully legitimate will tend to be self-enforcing, and
therefore highly effective.89 John Finnis has also emphasized the fact that, in
exceptional circumstances, the preservation of the rule of law could justify departure
from the formal legal or constitutional framework, which, we gather, does not
necessarily affect the validity – as we understand it – of the rules so adopted if these
are effective and regarded as legitimate.90 At the same time, these interrelated validity
requirements may at times be difficult to differentiate. For example, democracy is
often considered a substantive principle, deriving from the human right to govern
oneself91 and from the inherent dignity bestowed on every human being. As such,
democratic pedigree would be a fundamental determinant of the legitimacy of any
legal rule.92 Yet, democracy must be operationalized into procedures for law-making,
‘Legitimacy and the Constitution’, 118 Harvard Law Review 1787 (2004-2005), identifying legal, sociological and moral aspects relevant to legitimacy. For a view of rule legitimacy as a function of its legality, see Max Weber, Economy and Society: An Outline of Interpretive Sociology (1922, Guenther
Roth & Claus Wittich eds.), Berkeley, University of California Press, 1978, Vol. 1, at 36-37. 88
‘[Les rapports des trois critères de validité] ne sont pas de juxtaposition, mais d’interaction.’ Ost & van de Kerchove, supra note 31, at 341 ff. For a reflection on the interaction between formal validity, effectiveness and legitimacy in assessing a rule’s overall legal validity, see also Habermas, supra note
81, at 29-30. 89
See Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’, 2 Regulation & Governance 137 (2008), at 148 (analyzing how private regulators deprived of any public power may adopt ‘private’ regulations which have an effective bearing on third parties’ behaviour as a result of a high level of perceived legitimacy in the relevant public). On the limits of ‘legal effectiveness’ alone for achieving the rule of law, and the importance of the socially normative dimension of the law, see Krygier, supra note 19, at 66-68. See also, from a more psychological perspective, Tom R. Tyler, Why People Obey the Law, Princeton, Princeton University Press, 2006
(arguing that the most influential factor in obedience and deference to law is its legitimacy, understood in relation to procedural justice). 90
Finnis, supra note 42, at 275: ‘Sometimes […] the values to be secured by the genuine Rule of Law and authentic constitutional government are best served by departing, temporarily but perhaps drastically, from the law and the constitution.’ 91
See notably Article 1 of the Universal Declaration of Human Rights, which states: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ Article 21 further provides: ‘(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ See UN General Assembly, ‘International Bill of Rights’, Resolution No. 217(III), 10 December 1948. 92
On the relationship between the rule of law and its being conditioned on democracy, see Joseph H.H. Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 64, 2004, p. 547: ‘In domestic settings though
the concepts of both Democracy and the Rule of Law are under-specified terms in the vocabulary of political theory and social science, both have become at least since the second half of the 20
th century
inextricably linked, indeed interdependent. In our modern practices, the Rule of Law encapsulates, among other things, the claim to, and justification of, obedience to the law. Such obedience can neither be claimed, nor justified, if the law in question did not emanate from a legal system embedded in some form of democracy. Democracy, on this reading, is one (though not the only one) of the indispensable normative components for the legitimacy of a legal order. In a departure from previous understandings, if obedience, as a matter of fact, is secured without the legitimacy emanating from the practices of democracy, we are no longer willing to qualify such as the Rule of Law. A dictatorship that followed its internal legal system, would be just that: A dictatorship following legal rules. It would not qualify as a system upholding the Rule of Law. The reverse is also true: It is to rules of law that we turn to define whether the practices of democracy have indeed been followed and, more generally, the Rule of Law, with its constrain on the arbitrary use of power, is considered an indispensable material element of modern democracy. An attempt to vindicate even verifiable expressions of popular will outside legally defined procedures is regarded by us as a rule of the mob, rather than democracy.’
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such as voting laws, majority requirements, resembling the positivist ‘master test’.
Following democratic procedures can thus also be analyzed as a formal validity
requirement.
Admittedly, this complexification of the notion of validity makes it less practical and
straightforward than the positivistic one. Yet, a number of recent studies in legal
theory have shown that legal systems, at least in a number of Western countries,
have increasingly been evolving toward this multidimensional conception of validity.
Next to formal positivist master tests, the ways in which legal validity has been
asserted or challenged (either through the official, e.g. judicial, channels or more
informally in the people’s conscious or unconscious recognition of what they consider
as law or not) have increasingly relied on effectiveness and legitimacy grounds. This
trend is resulting in a general tendency not to regard rules or orders as ‘valid’ (and
consequently as binding and worthy to be enforced) if they do not perform positively
on effectiveness and legitimacy tests. For example, the doctrine of desuetude allows
to consider as no longer valid a rule that has lost all effectiveness. Similarly, legal and
regulatory frameworks on a number of issues (environmental preservation,
employment promotion, etc.) are subject to periodic performance evaluations, which
may condition their continuation over time. From a legitimacy point of view, the
increasing recourse to proportionality tests in order to assess the validity of statutes
or orders reflects a concern for their legitimacy, in the sense that grossly unfair and
disproportionate legal solutions should not be regarded as valid.93
It is submitted that linking the rule of law to legal systems that use the above
conception of legal validity allows for transcending the thin-thick puzzle that is
currently obscuring the notion of rule of law, as it clearly re-instates the requirement of
the ‘good law’ as a prime component of the rule of law. This is however not intended
in an a priori moral sense, as Joseph Raz understood it.94 We hold that the rule of law
is in essence ‘the rule of good law’, ‘good law’ being conceived simply as ‘valid’ law,
yet in reference to a complex and multidimensional conception of legal validity. This
conception of validity is likely to be conducive to the ideal of the rule of law, as it
places connectedness with the social order at the core of the legal system, by
instating as validity conditions all the levers that ensure that legal rules are vectors of
a valuable life in a community: formal quality, effectiveness, and legitimacy.
This is done without having to posit a priori moral values as being part of legal validity
or the rule of law.95 It thus avoids criticism that it contributes to a ‘thick’ conception of
the rule of law.96 Yet it does not either collapse into a ‘thin’ conception of the rule of
law, as, even though it does not impose external moral standards for the rules, it is
more than a formalist toolkit for rule-makers and still allows for a value-oriented
93
On all this, see Ost and van de Kerchove, supra note 31, at 328 ff. 94
Raz, supra note 22, at 211. 95
The idea of the ‘common good’ is helpful in this regard. See Finnis, supra note 42, at 272-273: ‘Implicitly, a principal component of the idea of constitutional government (which itself is one aspect of the idea of the Rule of Law [see infra, section 3.3.]) is the holding of the rulers to their side of a relationship of reciprocity, in which the claims of authority are respected on condition that authority respects the claims of the common good (of which a fundamental component is respect for the equal right of all to respectful consideration […]). 96
Remember Raz’s warning to turn the rule of law into a complete social philosophy (supra note 52. This conception, by focusing on legal validity as a multidimensional connectedness to the social order, is a definitely legal theoretical one.
20
critique of the rules. This critique must however be rooted in the legal and social
reality of validating rules.97 Our conception thus dodges the risk of seeing so-called
rule of law-compliant legal rules be used to impose oppression and arbitrariness. This
multidimensional (cognitive, empirical, axiological) connection of the legal system with
the members of the social order also espouses fundamental, almost meta-ethical,
principles such as freedom98 and human dignity99, which are often intuitively
associated with the rule of law. No law can be imposed from outside the social order,
its members remain free to decide upon what kind of law governs them, and legal
subjects are not objectified by oppressors or arbitrary rulers pursuing their personal
interest.100
To sum up, we understand the rule of law as the characteristic of a social order in
which the relations of its members are governed by a legal system whose design and
operation yields formally sound, effective and legitimate rules.101
2.3.3. VALIDITY AS CONNECTEDNESS AND ITS CONSEQUENCES: THE RULE OF LAW AS AN
EVALUATIVE NOTION
One of the most obvious consequences of this conception of the rule of law is that it
makes it a matter of more or less, a function of the degree to which the rules
produced by the legal order connect to the social order in the three ways before, or in
other words meet all three validity criteria. Again, as we said, the concrete expression
of those three validity criteria is spatially and temporally relative, so that there is not
only one recipe for achieving validity and the rule of law. Formal requirements may
vary, the way to measure effectiveness may vary, and what is considered as
legitimate surely varies. Yet, the reunion of all those three elements at the core of the
legal system’s validation practices is important. As we saw, validation of legal rules
97
On the ‘personification’ of the community as capable of embracing principles and values, see Dworkinn, supra note 69, pp. 167 ff. 98
See Rawls, supra note 23, at 210 ff. 99
For an interesting view of the way the rule of law respects the ‘freedom and dignity of each person as an active centre of intelligence’, see Waldron, supra note 42, at 60. 100
Id., at 31: ‘The idea of law, therefore, conveys an elementary sense of freedom, a sense that we are free to have whatever laws we like. Of course, the we in that sentence does not mean that any one of use is free to have whatever law he or she likes, nor does it necessarily imply any idea of democratic control. The we is bound up with whatever system of human power is in place in a given community.’ Finnis, supra note 42, at 272: ‘[T]he reason why the Rule of Law is a virtue of human interaction and community [is because] [i]ndividuals can only be selves – i.e. have the “dignity” of being “responsible agents” – if they are not made to live their lives for he convenience of others but are allowed and assisted to create a subsisting identity across a “lifetime”.’ 101
Comp. with John Finnis: ‘The name commonly given to the state of affairs in which a legal system is legally in good shape is “the Rule of Law” […].’ It is interesting to note that, in the common language, ‘valid’ and ‘in good shape’ are synonyms (see Ost & van de Kerchove, supra note 31, at 314). In any case, Finnis defines under the umbrella of the rule of law ‘the conditions under which we can reasonably say that the “legal system” is working well.’ (Finnis, supra note 42, at 270). Yet, Finnis
envisages those conditions as a Fuller-like list of formal elements. Richard Fallon probably offers the definition of the rule of law which approximates most our definition, though it already reaches definite conclusions about the elements of the validity of law: ‘Perfectly realized, the Rule of Law would be rule (i) in accordance with the originally intended and understood meaning of the directives of legitimate, democratically-accountable lawmaking authorities, (ii) cast in the form of intelligible rules binding on citizens, governmental officials, and judges alike, (iii) as identified and elucidated in an interpretive process guided by publicly accessible norms and characterized by reason-giving, and (iv) consistent with legitimate public purposes and sound, shared principles of political morality. When law, in the positivist sense, fails to satisfy any of these elements, the Rule of Law is less than completely realized, but still may (or may not) be more nearly approximated than it is scorned or abandoned.’ Fallon, supra note 51, at 38.
21
along other criteria than those described above or along only one or two of these
criteria has little chance of leading to the rule of law, will cause the legal system to be
less than ideal from a rule of law point of view, and will consequently reduce its value
as a vector of harmony (conversely, a legal system that dispenses with one of these
validity requirements may increase its value for an oppressive group forcing vested
interests on the population through the legal system). Now, since under our model the
validation of the rules as law is partly dependent on the existence and recognition of
both objective and subjective elements, and since (some of) those elements may be
wanting to some extent in the system of rules, the rule of law is a relative, evaluative
notion, and not a descriptive one, just as there can be more or less valid law.102 The
rule of law is not something that is, but something towards which to strive, the ideal
state always being out of reach. The rule of law is therefore measured according to
the degree to which rules adopted by a legal system are organically ‘connected’
(cognitively, empirically and axiologically) with the social order considered, through its
validity conditions.
In our view, the rule of law as an evaluative notion is a function of whether the legal
system functions under the above three validity conditions, because we believe that
only such a system can reasonably guarantee that oppression and arbitrariness are
averted and that harmony will be promoted by its operation.103 We therefore reaffirm
our opposition to a conception of the rule of law that boils down to patching formal or
substantive requirements on the daily business of just any legal system. The truth of
the matter is that the rule of law is an ideal that engages the legal system at its very
core: by questioning the validity conditions that define what it claims is law and should
govern the social order. So whereas validity is a measure of the quality of a single
rule, the rule of law is a measure of the quality of a legal order. So though validity and
the rule of law are different notions, they are decisively related.
102
It is not surprising in this connection to note that daily uses of the notion of rule of law most often refer to evaluative statements: such election violated the rule of law, such situation can be described as a rule of law failure. Those statements do not entail that there is no rule of law, but that the social order is moving closer to or further from it. See Waldron, supra note 42, at 44. Comp. also with Hart’s discussion of the influence of morality in legal validity assessments: Hart, supra note 59, at 207. 103
In this we seek parallels with Dworkin’s idea of ‘Law as Integrity’, according to which the law must be consistently in keeping with the principles of fairness, justice, and procedural due process (values Dworkin assumes communities are committed to, even though their opinions as to their practical incarnations may vary), both retrospectively and prospectively. Finding law is therefore an interpretive exercise: ‘According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice’, where we understand ‘legal practice’ as what the community has considered and considers ‘legal’, ‘lawful’. (Dworkin, supra note 69, at 224) Applied to the exercise of adjudication: ‘Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community.’ The rule of law in our conception would thus correspond to the state of affairs in which such conception of the law governs society. (See Trevor R. S. Allan, ‘Dworkin and Dicey: The Rule of Law as Integrity’, 8 Oxford Journal of Legal Studies 266 (1988), at 268-269). Ost & van de Kerchove illuminate Dworkin’s concept of integrity as follows: ‘[Integrity] renvoie moins à la cohérence logique d’un modèle juridique mécanique qu’à l’harmonie axiologique d’un système normatif et institutionnel de valeurs partagées.’ (supra note 31, at 424). Benedict Kingsbury, discussing the possibility of a relevant concept of law in global governance (more in particular in the field of ‘global administrative law’), argues in favour of a concept of law which requires the quality of ‘publicness,’ by which it ‘is meant the claim made for law that it has been wrought by the whole society, by the public, and the connected claim that law addresses matters of concern to the society as such.’ Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, 20 European Journal of International Law 23 (2009) at 31.
22
The establishment and verification of the connectedness of the legal system with the
social order may however not be limited to a convenient rule of ratification of the
majoritarian opinion. Even though specific rules will always have their supporters and
opponents, true connectedness means that the legal system claiming to govern a
social order must include at the heart of its functioning a genuine search for catering
to ‘the vital interests of all those to whom [it] demands obedience’.104 Failing this, the
rule of law will rapidly cease to exist and turn into a form of rule of oppression,
commonly referred to as the ‘dictature of the majority,’ unable to guarantee the rule of
law ideal of social harmony.
At this point, an important clarification is needed. Our conception of the rule of law as
independent from predefined moral agendas is not a blank check signed to any
ideology that would gather widespread assent within a defined society, notably those
resulting in or leading to the establishment of a totalitarian regime. Hannah Arendt
has meticulously analyzed that the Nazi party, and the figure of Hitler in particular,
based their authority on a wide support from the masses.105 However, totalitarian
regimes by definition negate the ideal of ongoing connectedness between social
practices and aspirations, on the one hand, and law, on the other hand, which we
identified as being at the heart of the rule of law.106 The use of law-like rules for
wicked purposes such as setting a fringe of society against one or several others, as
was the case in Nazi Germany or in apartheid South Africa, should thus not be
viewed as complying with the connectedness requirement.107 Finally, for what
concerns freedom- or human rights-killing regimes, it is interesting to consider them
from the perspective of the increasing internationalization of states’ legal activity. It is
doubtful that the rules which such regimes edict could nowadays still be validated as
law, in particular under the formal validity criterion understood in this internationalized
context. The growing prevalence of an ever more expanding and dense body of
international norms trickling down into domestic social and legal orders108 casts
serious doubts on the possibility to adopt ‘valid’ rules intending to implement, for
104
See Hart, supra note 59, at 202: ‘If the system is fair and caters genuinely for the vital interests of all those from whom it demands obedience, it may gain and retain the allegiance of most for most of the time, and will accordingly be stable. On the other hand, it may be a narrow and exclusive system run in the interests of the dominant group, and it may be made continually more repressive and unstable with the latent threat of upheaval.’ Interestingly, Hart analyzes the question of such balance in terms of the relationship between law and morals, though not in the framework of a discussion about the rule of law. 105
Hannah Arendt, The Origins of Totalitarianism, San Diego/New York/London, Harcourt Brace Jovanovich, 1979 (new edition with added prefaces), at 311 ff. 106
Id., at 462: ‘the fundamental difference between the totalitarian and all other concepts of law [is the following]. Totalitarian policy does not replace one set of laws with another, does not establish its own consensus iuris [i.e. that which ‘constitutes a “people”‘], does not create, by one revolution, a new form of legality. Its defiance of all, even its own positive laws, implies that it believes it can do without any consensus iuris whatever, and still not resign itself to the tyrannical state of lawlessness, arbitrariness and fear. It can do without the consensus iuris because it promises to release the fulfilment of law from all action and will of man; and it promises justice on earth because it claims to make mankind itself the embodiment of the law.’ Totalitarianism therefore intends more to manipulate masses than to connect to them through law, and the perceived connection which may exist at some point between the totalitarian regime’s legal rules and social values is in our view best analyzed as a historical ‘accident’ rather than as an internal feature of the legal order. 107
On ‘wicked legal systems’, notably in relation to the rule of law ideal, see David Dyzenhaus, Hard Cases in Wicked Legal Systems – Pathologies of Legality, Oxford, Oxford University Press, 2010. 108
For critical historical accounts of this process, tinged with the ‘ideal’ of civilization supposedly embodied by the international legal order, see e.g. Edward Keene, Beyond the Anarchical Society – Grotius, Colonialism and Order in World Politics, Cambridge, Cambridge University Press, 2002; Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, Cambridge, Cambridge University Press, 2002 (arguing that the universal normative project originally present in international law today seems to have ‘fallen’).
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example, widespread human rights violations, racial discrimination or genocide, and
therefore on the rule of law-compliance of the regimes which produce such rules.109
2.4 THE RULE OF LAW AS A DIALECTICAL IDEAL
We have argued above that the validation of law – and the achievement of the rule of
law – cannot be approached according to a predetermined one-size-fits-all recipe
based on a purely formal test or on transcendent moral values. Rather, this
constitutes a process geared towards the realization of a number of validity criteria
(formal soundness, effectiveness, legitimacy). In practice, the concrete form taken by
these criteria will depend on the relevant social order, and must be open to constant
questioning to reflect changes in the said social order. Legitimacy, for instance,
depends on a set of substantive values which, by definition, may evolve over time.
Effectiveness necessitates an ongoing effort by citizens and officials at making rules
applied and enforced. Requirements of form, competence and procedure for legal
rules are also set to change as daily necessities require (though not as often as to
upset reliability in the law).110 Our conception of the rule of law thus commands an
ongoing dialectical process located at the heart of the social order’s legal recognition
process.111 Such dialectical process must have the rule of law as its ideal frame of
reference and should make effective legal rules and social values match as closely as
possible.112
The dialectical process should normally feed a constant reformulation of the design
and operation of the legal system (comprising a political space equipped with
institutions and procedures113), so that what is validated as law by the system reflects
as closely over time the preferences and aspirations of society members as defined
109
For a critical discussion of such ‘internationalist model’ of an ‘international’ rule of law, and its status in domestic law and domestic courts, see Matthias Kumm, ‘International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model’, 44 Virginia Journal of International Law 19 (2003-2004). 110
We therefore resist ‘the view that there exists a mind-independent reality consisting of certain first principles either of fact or value.’ See Radin, supra note 34, at 793. 111
Fallon, supra note 48, at 42: ‘the contemporary attraction of the ideal lies in its potential to link and order diverse values and means for their promotion […]. The Rule of Law […] is most plausibly viewed as an architectonic ideal that not only incorporates but orders its component values and elements.’ Habermas expresses this idea of ongoing connectedness in the very simplest terms: ‘Administrative power should not reproduce itself on its own terms but should only be permitted to regenerate from the conversion of communicative power.’ Habermas, supra note 81, at 150. For a discussion of those notions of administrative and communicative power and their relation to each other, see infra, this section. 112
See Ost’s & van de Kerchove’s plea for ‘une théorie dialectique du droit.’ Ost & van de Kerchove, supra, note 31. See also Krygier’s general point that ‘the successful attainment of the rule of law is a social outcome, not merely a legal one. What matters […] is how the law affects subjects. But since the distance between law in books and action is often great, and the gap full of many other things, and in different places full of different things, it is a matter of comparative social investigation and theorization what might best, in particular circumstances, in particular societies, further that goal. A docket of the rechtstaatlich features of legal instruments, even buttressed by citations to Fuller, Hayek or Raz, will not do the trick.’ Krygier, supra note 21, at 266. 113
Comp. with Habermas’ depiction of the necessity, within a collectivity wishing to become a legal community (what we may call a society wishing to live under the rule of law), of the coming about of a ‘Constitutional State’ (discussed in relation to the German concept of Rechtsstaat), in which the ‘horizontal association of citizens in statu nasciendi’ is being stabilized by the institutionalization of ‘a central authority’, having the political power to make and enforce bindng law. See Habermas, supra
note 81, at 133 ff. From a more technical point of view, Jeremy Waldron lists what he considers the elements constituting the ‘essence of a legal system’: courts, general public norms, positivity, orientation to the public good, and systematicity. (Waldron, supra note 42, at 19-36).
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through their dialectical effort. Another way of wording this is that ideally, the legal
system is supposed to be coupled with what is commonly named ‘the public interest’
or ‘the common good.’114 Such coupling is an expression of the connectedness of the
legal system and the social order which we view as one of the definitional features of
the rule of law.115 Accordingly, securing such coupling should be at the heart of the
legal system’s operation. In this section we substantiate how the ‘coupling’ of the law
and of society’s aspirations can be realized in a ‘legal system’116 through a dialectical
rule of law-striving117 process.
As indicated above, at the core of law-producing processes partaking of the legal
system must be the idea of progress towards the rule of law, the objective of making
rules as congruent as possible with evolving social practices, of promulgating ever
more connected and ‘valid’ rules according to our multidimensional test. In order for
its legal system to be successful at this, society must conduct an introspective
dialectical effort. The legal system should ‘take stock’ of society’s aspirations and
project them into the political debate with a view to a constant ‘refoundation’ of the
law. Such political dialogue must reflect, in Margaret Jane Radin’s words, ‘the tension
between our understanding of our present state and our understanding of social
ideals toward which progress is possible. In this pragmatic view of politics, we are
always attempting to accomplish a transition from today’s non ideal world to the better
world of our vision, and it is a transition that never ends.’118
Our conception of the rule of law based on the ongoing connectedness between the
law and the aspirations of society is vulnerable to the criticism that it provides less
clear guidance for achieving the rule of law, and, most importantly, that generating
rule of law-compliant legal systems presupposes a level of normative consensus
which seems hard to find in societies where the rule of law is said to be prevalent, let
114
See Waldron, supra note 42, at 31: “We recognize institutions as part of a legal system when they orient themselves in their public presence to the good of the community – in other words, to issues of justice and the common good that transcend the self-interest of the powerful.’ Consequentially, Waldron goes on, ‘nothing is law unless it purports to promote the public good, i.e., unless it presents itself as oriented in that direction.’ (at 32) Finnis, supra note 42, at 276, conceives of the legal system as an ‘ensemble of rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institution of sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of the law both amongst themselves and in their relations with the lawful authorities.’ 115
Interestingly for our purpose, David Schmitz discusses institutions’ attempts to secure the common good in terms of their ‘morality’ as institutions: David Schmitz, ‘The Institution of Morality’, in Ian Shapiro (ed.), The Rule of Law, Nomos XXXVI, New York, New York University Press, 1994, at 234 ff. 116
See Hart’s defining features of a legal system: ‘There are … two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.’ (Hart, supra note 59, at 116) So therefore, a legal system exists if ‘the rules recognized as valid at the official level are generally obeyed.’ (id., at 118). We suggest that such view of the legal system only guarantees the rule of law if the legal system operates in (cognitive, empirical and axiological) connectedness to the values running through society. 117
The phrase is inspired from Graínne De Búrca, who advocates a ‘democracy-striving’ approach to global governance. See Graínne De Búrca, ‘Developing Democracy beyond the State’, 46 Columbia Journal of Transnational Law 221 (2008). 118
Radin, supra note 34, at 816.
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alone in societies where the legal system is weaker.119 Although we accept that the
rule of law involves striving towards an ideal of harmony between rules and collective
values that will never be reached, it is important to focus on what exactly should be
the object of the said normative consensus. We suggested earlier that the rule of law
is a quality of the legal system and not of the rules governing the latter. This entails
that promoting the rule of law must focus on the way the social order produces rules
(‘the legal system’), not on identifying a fixed set of form or substance requirements
for rules.120 This distinction between building an appropriate (‘consensual’) legal
system and promulgating a body of appropriate (‘valid’) rules is in our view very
important for rule of law theorists.121
Michelman offers a powerful theory of such distinction. He has suggested that
‘jurisgenerative politics’, i.e. the process through which the debates of the members of
society122 create valid law,123 primarily requires that ‘both the [jurisgenerative] process
and its law-like utterances must be such that everyone subject to those utterances
can regard himself or herself as actually agreeing that those utterances, issuing from
that process, warrant being promulgated as law.’124 Successful jurisgenerative politics
would therefore require a ‘process,’ germane to what we call a legal system, which
people trust as being capable of producing valid law. This does of course not mean
that all rules created by the legal system will enjoy consensus on substance.
However, we believe a fairly solid consensus can be reached on the kinds of
jurisgenerative processes leading to valid law, by reference to formal/cognitive,
empirical and axiological elements. When consensus is achieved about this, the
stage is arguably set for the rule of law. In other words, if there is consensus on how
valid rules must be produced, and that such consensus is reflected in the way the
legal system is operating, then society may live under the rule of law while accepting
119
Fallon, supra note 51, at 20; Michelman, supra note 25, at 1506. Jamie Rowen, drawing on her
experience of transitional justice in Bosnia, notes that ‘[m]ost definitions of “law” presuppose the prasence of shared norms and values in a cohesive community. Such cohesion is absent in countries emerging from violence.’ Rowen, supra note 15, at 95. 120
See the approach taken in Waldron, supra note 42, at 8 ff. See also, on the need for specific institutions to achieve the rule of law, Krygier, supra note 19, at 59. Rowen analyzes the question of the legal system from the point of view of its ‘authority,’ that is, its ability to govern society through law. She claims that legal systems must be deeply rooted into the community in order to be authoritative, and that law must find itself in a dynamic interaction with the community. Drawing from Hart, she states that the authority of a legal system notably derives from the legitimacy of those in power. If the government is seen as illegitimate, this undermines the secondary rules (the structure of the legal system) and, as a result, the primary rules as well. Rowen, supra note 15, at 110. One can see the many links that this approach shares with our own, where a legal system generally producing ‘valid’ law would be deemed to be authoritative: ‘[l]aw, particularly law that is imposed by foreigners, cannot be an authority if individuals distrust each other and their leaders.’ (Id., at 119). 121
Very relevant to this claim is Habermas’ ‘discourse theory of law’, according to which ‘[t]he law receives its full normative sense neither through its legal form per se, nor through an a priori moral content, but through a procedure of lawmaking that begets legitimacy.’ Habermas, supra note 81, at
135. Emphasis in original. 122
In this we allude to the Habermasian notion of communicative power exercised by politically autonomous citizens meeting in the public sphere for collective opinion- and will-formation purposes. Id., at 147 and 151 ff. 123
In the words of Michelman, jurisgenerative politics may be described as that kind of rule-making which is ‘capable of imbuing its legislative product with a “sense of validity” as “our” law.’ Michelman, supra note 25, at 1502. See also Habermas’ contention that ‘[t]he process of legislation […] represents the place in the legal system where social integration first occurs’ and his discussion of the conditions for such process to happen (notably in terms of communication and deliberation between rational and autonomous citizens). Habermas, supra note 81, notably at 32 ff. 124
Michelman, supra note 25, at 1526.
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that perfect agreement may never be reached on the substantive contents of the
rules.125
In order to be realistic, any discourse concerned with rule of law promotion must
therefore primarily be concerned with the design of legal systems, such that those
legal systems issue formally sound, effective, and legitimate rules. This is arguably
very different from the mainstream reflections about the rule of law, which focused on
qualities that rules are supposed to have, regardless of what kind of legal system they
are issued by. Rule of law-oriented critique of legal systems must consequently focus
on the creation of the social and institutional conditions for jurisgenerative politics to
take place, such that they lead to ‘valid’ law.126 This means creating a space (and
institutions) where, and procedures according to which, adversarial political points of
view can meet to generate rules which are regarded as valid law (as ‘our’ law127),
even though no consensus may exist on their final substantive contents.128 Only in
this way can law and society connect in a way that realizes the rule of law.
3. CONCLUSION: A BENCHMARKS APPROACH TO THE RULE OF LAW
In our conclusion, we would like to expound again our vision of the rule of law and to
spell out a method for advocating it sensibly, using our model above.
The rule of law, according to us, is the characteristic of a society which is governed
by a legal system yielding formally sound, effective, and legitimate rules. The reason
why the rule of law should be considered as a function of these factors is that they
indicate that the legal system connects to the social order in three ways –
cognitively, empirically, axiologically – that ensure that the law will not be oppressive
and arbitrary, but will rather act as a vector of harmony. The way the legal system is
able to ensure that the rules it produces bear those qualities is by using them as
validity conditions. Indeed, a legal system whose validity conditions are formal
soundness, effectiveness and legitimacy is more likely to produce legal rules which
125
Voting in democracies, for example, very often leaves a large share of the population dissatisfied with the decision that is made by the majority. Yet everyone agrees that the result of such vote should be considered valid law. Fallon expresses this as follows: ‘It is entirely imaginable that forms of reasoned deliberation, structured by legal processes, might occur within a normative consensus sufficient to bound the domain of the plausibly lawful and that the outcomes of such deliberative processes might be experienced as inherently legitimate and deserving of respect, even in the absence of clear rules specified in advance.’ Fallon, supra note 51, at 20. For a discussion of the Common Law system of judge-made law, more in relation to legitimacy, see Fallon, supra note 87, at 1813 ff. 126
Or, we might say in the words of Habermas, communicative power coupled with administrative power. Such conditions are exposed in theoretical terms in Habermas, supra note 81, at 151-193. Ample discussion thereof at the practical level, in the context of transitional justice, would however take us too far. 127
See above quote, supra note 123. 128
Michelman again has emphasized the impossibility of reducing all differing opinions on a defined topic to one consensual opinion, but nonetheless believes that the generation of ‘self-given law’ is possible on the basis of differing political points of view (‘purality’), that under three conditions: ‘Given plurality, a political process can validate a societal norm as self-given law only if (i) participation in the process results in some shift or adjustment in relevant understandings on the part of some (or all) participants, and (ii) there exists a set of prescriptive and procedural conditions such that one’s undergoing, under those conditions, such a dialogic modulation of one’s understandings is not considered or experienced as coercive, or invasive, or otherwise a violation of one’s identity or freedom, and (iii) those conditions actually prevailed in the process supposed to be jurisgenerative.’ Michelman, supra note 25, at 1526-27.
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will be ‘ideal’ in the sense bestowed to it by the social order considered: it will ensure
predictability and coherence to the legal system (formal/cognitive soundness), it will
ensure that the rules ‘govern’ and that personal designs backed by violence are
averted (effectiveness), and finally it will ensure that the substantive content of the
rules reflects, or at least takes into account in a fair manner, the aspirations of
society (legitimacy).
These three components of our notion of validity must also be regarded as
benchmarks for the rule of law. We noted above that the rule of law was an ideal that
was to be constantly strived for, and now we posit that the practical objectives to be
strived for are those: formal soundness, effectiveness, and legitimacy. The social
order should benchmark its legal system against those objectives. This is however
more easily said than done, not least as those objectives constantly evolve in
increasingly pluralistic societies. This means that the rule of law must be a dialectical
ideal, not a fixed ‘laundry list’ of requirements. It means that the rule of law requires
that a very strong dialectical process be put in place within society to define the
processes and conditions which will guarantee that its legal system will be versatile
enough so that the rules it produces keep striving towards formal soundness,
effectiveness and legitimacy. Efforts for promoting the rule of law should thus focus
on generating a consensus within the social order on the proper design of a legal
system capable of producing valid law. This may sounds like a rather vague agenda,
but the rule of law must be open-ended if it is to act as an ideal throughout the huge
variety of social orders. Its realization through dialogue is thus certainly a task for
sociologists, psychologists, political scientists as much as one for jurists.
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