The rule of law and its limits

Law and Philosophy

Volumn 23, Issue 1, 2004, Pages 1-43

  Marmor, Andrei ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 4143153716     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/B:LAPH.0000004356.03016.d5     Document Type: Review

References (73)

1. Needless to say, admiration of the rule of law is not universal; Marxists have been traditionally hostile to the rule of law, and more recently, other critical theories have come to share this hostility. See, for example, C. Sypnowich, "Utopia and the Rule of Law", in D. Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order (Hart Publishing, 1999), p. 179.
2. In spite of his awareness of this danger, it is difficult to avoid the impression that Hayek fell into this trap. See: Friedrich Hayek, The Road to Serfdom (Chicago, 1944, 1972), Chapter 6.
3. J. Raz, The Authority of Law (Oxford, 1977), p. 211.
4. See Raz, The Authority of Law, pp. 212-214. Some commentators assume that the rule of law also requires the subjects to obey the law. In one sense, this is clearly true; unless the law is by and large obeyed, it cannot function as a means of social control. But of course, it should not be assumed that the rule of law entails a general prima facie obligation to obey the law. The question of whether there is such a general obligation to obey the law is clearly a moral one.
5. See Raz, ibid.
6. Ibid., p. 212.
7. To be more precise: there is a technical legal sense in which lack of authority is not equivalent to illegality. A governmental action can be ultra vires in various respects (e.g. wiretapping without legal permission) without also being illegal in the sense of a crime, or tort, or other violation of the law. Nevertheless, when a governmental agent acts without the requisite legal authority, he simply fails to obey the law. This is what I mean in the text. I am indebted to John Finnis for this comment (which is not to suggest that he agrees with me).
8. See J. Austin, The Province of Jurisprudence Determined (London: Weidenfeld & Nicolson, 1954).
9. The Morality of Law (Yale, 1964, 1969), mainly Chapter 2.
10. The Authority of Law (Oxford, 1979), Chapter 11.
11. Natural Law and Natural Rights (Oxford, 1980), pp. 270-276.
12. "Natural Law and the Separation of Law and Morals", in R. George (ed.), Natural Law Theory (Oxford, 1992), p. 105.
13. The Morality of Law, Chapter 2.
14. On these types of ideals I have elaborated in my "The Intrinsic Value of Economic Equality", in Meyer, Pogge and Paulson (eds.), Rights, Culture and the Law: Essays after Joseph Raz (Oxford, 2003), p. 127, at p. 140.
15. The distinction was introduced by G. H. von Wright, Norm and Action (NY: Routlidge, 1963).
16. For example, the law can authorize a particular individual to act as a negotiator or arbitrator, etc., in a particular dispute. More interestingly, the prevalent use of ballot lists exemplifies that the law can address itself to a huge number of individuals by naming them.
17. See my Positive Law and Objective Values (Oxford, 2002), pp. 150-151.
18. Why J. Austin insisted otherwise is a bit of a mystery. Surely he was wrong about this. See his The Province of Jurisprudence Determined, p. 19.
19. See Frederick Schauer, Playing by the Rules (Oxford, 1991), Chapter 2. Vagueness should not be confused with ambiguity. Ambiguity is, normally, a deficiency in law making. If the law prescribes that you ought to do, but can either mean x or y, then it is, indeed, not clear what is it that you should do. To be more precise, there are two types of ambiguity: one word can mean two different things, like 'bank', for example, which can either mean a financial institution or river bank. This is rarely a practical problem since we can normally disambiguate according to the context of the expression. More frequently in the legal context, we face ambiguities that derive from the fact that a certain concept-word has both a narrow and a wide meaning, and it is often difficult to determine which one is meant. For example, the word 'drug' can either mean, in its wider sense, any type of chemical substance that purports to have medical use, or it can mean, in the narrow colloquial sense, hallucinatory drugs. An nice example of such ambiguity in the legal context is the famous case of Rector, Holy Trinity Church v. US, 143 US 457 (1892).
20. See Frederick Schauer, Playing by the Rules (Oxford, 1991), Chapter 2. Vagueness should not be confused with ambiguity. Ambiguity is, normally, a deficiency in law making. If the law prescribes that you ought to do, but can either mean x or y, then it is, indeed, not clear what is it that you should do. To be more precise, there are two types of ambiguity: one word can mean two different things, like 'bank', for example, which can either mean a financial institution or river bank. This is rarely a practical problem since we can normally disambiguate according to the context of the expression. More frequently in the legal context, we face ambiguities that derive from the fact that a certain concept-word has both a narrow and a wide meaning, and it is often difficult to determine which one is meant. For example, the word 'drug' can either mean, in its wider sense, any type of chemical substance that purports to have medical use, or it can mean, in the narrow colloquial sense, hallucinatory drugs. An nice example of such ambiguity in the legal context is the famous case of Rector, Holy Trinity Church v. US, 143 US 457 (1892).
21. As we shall see, judicial law making may give rise to problems about retroactivity, but that is a separate issue.
22. With one exception, namely, the separation of powers. As we shall see later on, some aspects of separation of powers may derive from the rule of law requirements, but in a different context.
23. The subjects of a norm need not be aware of the precise formulation of the norm. But they must know that there is such a norm and have at least a rough idea of what the norm requires.
24. First year law students discover this in the first few weeks of classes; they suddenly realize that there is much less certainty about what the law requires than they had assumed when they enrolled for their legal studies. At first students tend to find this discovery utterly frustrating. Later on they realize that this uncertainty is rather conducive to the prosperity of their professional careers.
25. See H. Putnam, Mind, Language and Reality (Cambridge, 1975).
26. See J. S. Mill, On Liberty, Chapter 2.
27. See M. Dan-Cohen, "Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law", reprinted in Dan-Cohen, Harmful Thoughts (Princeton, 2002), p. 37.
28. Experts have come to realize that there is severe cumulative psychological effect on women who are subjected to continuous abuse by their husbands which might reach a breaking point at some stage, even if at that particular stage the abusive husband's behavior does not amount to a grave provocation. As consequence, women have occasionally killed their husbands in act of otherwise almost inexplicable rage. Many jurisdictions have recently recognized this cumulative aspect of provocation, thus giving effect to its consequences by recognizing some sort of defense called the 'battered women's syndrome' (usually reducing a murder charge to manslaughter). This is not Dan-Cohen's example but it refers to the same idea.
29. A recent example is the criminal prosecution of East-German guards who followed orders to shoot-to-kill people who tried to escape to the West over the Berlin wall. See R. Alexy, "A Defense of Radbruch's Formula", in D. Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order, p. 15.
30. See The Morality of Law, pp. 53-54.
31. What if there is a rule or convention in a certain legal domain that makes it clear to the norm-subjects that retroactive rules might be enacted in that domain? Arguably, a limited convention to this effect exists in US tax legislation. In this context, the function of the convention is to signal to the law subjects that they should be careful not to exploit legislative errors as they might be corrected retroactively. For obvious reasons, such a legislative policy is generally undesirable since it undermines people's ability to rely on the law as a guide to their conduct. Sometimes, however, reliance on the law is simply unreasonable. (I am indebted to Elizabeth Garrett here.)
32. See Raz, "Law and Value in Adjudication", in his The Authority of Law, Chapter 10.
33. This is not quite accurate: In principle, judges could render decisions which would only have prospective effect and sometimes, though rarely, they have done so. But as a general policy, this would be extremely problematic, both from a political perspective, as it would highlight the legislative role of judges in a manner which is politically problematic, but mainly, because it would seriously undermine the incentive of potential litigants to bring forth their cases. If litigants know in advance that their success in court may not result in a decision that affects them, why would they bother to spend their resources on expensive litigation? Some jurisdictions have a practice of referring some hard cases back to the legislature, but these tend to be rare cases not frequently used.
34. To be sure, retroactive legislation is not the only way in which the law can frustrate legitimate expectations. For example, a statute which repeals the mortgage interest deduction for all future interest payments is prospective, but it unsettles the expectations that homebuyers had when they bought homes and committed themselves to paying a certain amount of interest for decades.
35. Not complete certainty, of course; we frequently plan our conduct under conditions of (partial) uncertainty.
36. Cf. F. Hayek, The Road to Serfdom, Chapter 6.
37. Taking Rights Seriously (London: Duckworth, 1977), p. 82.
38. Ibid. at p. 85.
39. 217 N.Y. 382 (1916).
40. It is interesting to note that Cardozo in his opinion is at pains to show how unsettled and uncertain the law had been prior to that case.
41. This was precisely the gist of the dissenting opinion of Justice Bartlett in MacPherson.
42. None of the above is meant to justify justice Cardozo's particular decision in MacPherson. There is much to be said in favor of the dissent's position arguing that such an important social and economical change in the law should have been left for the legislature to introduce.
43. On the possible discrepancy between officials' and ordinary citizens' understanding of the law, see the discussion of the application of law in sub-section 8 below.
44. Assuming that these are not empty sets. Another example of logical inconsistency would be the following: suppose the law prescribes that 'all F's should ψ' and that 'all G's should not ψ', and there persons who are both F and G.
45. See Raz, The Authority of Law, p. 201.
46. R. Dworkin, Law's Empire (Fontana, 1986), pp. 178-184.
47. The case of Flood v. Kuhn, 407 U.S. 258 (1972), is almost a real-life example of checkerboard law, where the Supreme Court affirmed an exemption of baseball leagues from anti-trust laws, for no apparent reason except the need to follow an erroneous precedent.
48. See, for example, D. Lewis, Convention, a Philosophical Study (Oxford, 1968). On the definition of arbitrariness, see also my "On Convention", Synthese 107 (1996), pp. 349-371.
49. See, for example, D. Lewis, Convention, a Philosophical Study (Oxford, 1968). On the definition of arbitrariness, see also my "On Convention", Synthese 107 (1996), pp. 349-371.
50. See J. Raz, "The Relevance of Coherence", Boston U. L. Rev. 72 (1992), p. 273. Dworkin is not unaware of this problem. His theory of legal interpretation is not confined to a requirement of coherence, although the latter forms an essential part of it. The theory actually calls for a certain moral balancing between the requirement of coherence and moral soundness. It allows for law makers to isolate certain past decisions as mistakes. Thus even on Dworkin's theory, integrity is conceived of as an ideal that has to be balanced against other values which compete with it. See Law's Empire, pp. 65-72.
51. See J. Raz, "The Relevance of Coherence", Boston U. L. Rev. 72 (1992), p. 273. Dworkin is not unaware of this problem. His theory of legal interpretation is not confined to a requirement of coherence, although the latter forms an essential part of it. The theory actually calls for a certain moral balancing between the requirement of coherence and moral soundness. It allows for law makers to isolate certain past decisions as mistakes. Thus even on Dworkin's theory, integrity is conceived of as an ideal that has to be balanced against other values which compete with it. See Law's Empire, pp. 65-72.
52. Political liberalism, as developed by Rawls' later writings, clearly strives to remain above the fray, so to speak, working out a procedure which would be compatible with all reasonable comprehensive moralities. However, even on Rawls' own account, this can only work with respect to the basic structure of society, not the entire body of law. See J. Rawls, Political Liberalism (Columbia, 1993), pp. 11-14.
53. See B. Williams, "Conflicts of Value" in his Moral Luck (Cambridge, 1981), p. 71. Most of all, it was Isaiah Berlin who conceived of this unavoidable fragmentation of values as a foundational aspect of liberalism. See, for example, Concepts and Categories, H. Hardy (ed.) (Princeton, 1999). See also T. Nagel, "The Fragmentation of Value", in his Mortal Questions (Cambridge, 1979), p. 128.
54. See B. Williams, "Conflicts of Value" in his Moral Luck (Cambridge, 1981), p. 71. Most of all, it was Isaiah Berlin who conceived of this unavoidable fragmentation of values as a foundational aspect of liberalism. See, for example, Concepts and Categories, H. Hardy (ed.) (Princeton, 1999). See also T. Nagel, "The Fragmentation of Value", in his Mortal Questions (Cambridge, 1979), p. 128.
55. See B. Williams, "Conflicts of Value" in his Moral Luck (Cambridge, 1981), p. 71. Most of all, it was Isaiah Berlin who conceived of this unavoidable fragmentation of values as a foundational aspect of liberalism. See, for example, Concepts and Categories, H. Hardy (ed.) (Princeton, 1999). See also T. Nagel, "The Fragmentation of Value", in his Mortal Questions (Cambridge, 1979), p. 128.
56. The dangers of this were all too apparent in the wake of the famous Brown v. Board of Education case, requiring the federal judiciary to engage in a very aggressive continuous enforcement campaign which lasted for decades, and was often close to miserable failure.
57. Another familiar example of laws which often set high standards are the technology-forcing laws which explicitly set standards not yet attainable, aiming to force the industry to invest in R&D for purposes of developing new technology.
58. See H. Kelsen, General Theory of Law and State, A. Wedberg (trans.) (Harvard, 1949), p. 45.
59. See H. L. A. Hart, The Concept of Law, 2nd edn. (Oxford, 1961, 1994), pp. 38-42.
60. Harmful Thoughts, pp. 38-40.
61. But of course, not the other way around: if the public perception of the offense is more restricted than its official understanding, people will think that an action is legal whereas in fact, it is not. That would certainly violate the rule of law. See Dan-Cohen, Harmful Thoughts, p. 90, n. 106.
62. See Dan-Cohen, Harmful Thoughts, p. 56. Note that the idea of trial by juries actually goes against this, but it is mitigated by the detailed legal guidance judges are required provide to the jury.
63. Dan-Cohen is careful to point out that the more there is opportunity for ex ante legal consultation, the less acoustic separation the law can maintain; thus he would not necessarily disagree with the argument in the text. He could still maintain that acoustic separation is beneficial in those, mainly criminal law cases in which the relevant parties do not have an opportunity of obtaining legal advice ex ante.
64. See Fuller, The Morality of Law.
65. See H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford, 1983), pp. 349-350, and J. Raz, The Authority of Law, p. 226. Raz qualifies this to the extent that he does admit that in addition to functional values, the rule of law enhances certain goods indirectly, at p. 225.
66. See H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford, 1983), pp. 349-350, and J. Raz, The Authority of Law, p. 226. Raz qualifies this to the extent that he does admit that in addition to functional values, the rule of law enhances certain goods indirectly, at p. 225.
67. The truth is that there may be an exception to this: when the law is profoundly corrupt, it might be better if it also failed in its ability to guide conduct, and therefore, violations of the rule of law virtues may actually do more good than harm. But it is very difficult to generalize. Sometimes, even in a profoundly corrupt legal system, the fact that the law also violates some rule of law virtues, say, in that it is kept secret, or haphazardly applied, may be an additional iniquity over and beyond the law's substantive injustice. It all depends on specific circumstances.
68. The Authority of Law, p. 224.
69. I b i d.
70. The Authority of Law, p. 224.
71. Fuller certainly gave at least the impression that his views about the 'inner morality of law' form part of his anti-positivist argument. Even recent literature on the rule of law, however, seems to share this characterization of the debate. See, for example, David Dyzenhaus' introduction to the volume he edited: Recrafting the Rule of Law, pp. 1-12. See also R. George, "Reason, Freedom, and the Rule of Law: Their Significance in the Natural Law Tradition", Am. J. Juris. 46, p. 249.
72. Fuller certainly gave at least the impression that his views about the 'inner morality of law' form part of his anti-positivist argument. Even recent literature on the rule of law, however, seems to share this characterization of the debate. See, for example, David Dyzenhaus' introduction to the volume he edited: Recrafting the Rule of Law, pp. 1-12. See also R. George, "Reason, Freedom, and the Rule of Law: Their Significance in the Natural Law Tradition", Am. J. Juris. 46, p. 249.
73. Note that contemporary Natural Lawyers have suggested different and more subtle interpretations of the main tenets of Natural Law. For example, John Finnis views Natural Law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. See his Natural Law and Natural Rights. As I explain in the text, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of Legal Positivism.