Is the rule of law really indifferent to human rights?

Law and Philosophy

Volumn 27, Issue 6, 2008, Pages 533-581

  Fox Decent, Evan ^a  

^a MCGILL UNIVERSITY   (Canada)

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EID: 52449088081     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-008-9027-9     Document Type: Review

References (84)

1. Joseph Raz, 'The Rule of Law and Its Virtue', in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at p. 211.
2. Ibid.
3. She claims that it is theoretically possible for a Nazi-like regime to pursue wicked ends in conformity with rule-of-law constraints, but thinks that this just shows that the rule of law's non-instrumental moral value is conditional on the presence of regimes either less wicked or more sensitive to public criticism than the Nazis. Colleen Murphy, 'Lon Fuller and the Moral Value of the Rule of Law', Law and Philosophy 24 (2005): 239-262.
4. For a similar conditional argument which denies a necessary or conceptual connection between the rule of law and morality, but recognizes that the rule of law may have some substantive moral consequences within societies su.ciently attuned to liberal values (such as western liberal democracies), see Daniel Brudney, 'Two Links of Law and Morality', Ethics 103 (1993): 280-301.
5. Murphy (2005, p. 262). There is widespread support for the idea that the purpose of the rule of law is to help the law guide human conduct. For Raz, "[t]his is the basic intuition from which the doctrine of the rule of law derives: the law must be capable of guiding the behaviour of its subject." (Raz 1979, p. 214). See also Andrei Marmor, 'The Rule of Law and Its Limits', Law and Philosophy 23 (2004) 1 at p. 5;
6. Margaret Jane Radin, 'Reconsidering the Rule of Law', Boston University Law Review 69 (1989) 781 at p. 785. The idea is also present in Fuller's formulation of lawgiving as "the enterprise of subjecting human conduct to the governance of rules."
7. Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969) p. 96.
8. Brudney (1993, p. 285).
9. For discussion, see Paul Craig, 'Formal and Substantive Conceptions of the Rule or Law' [1997] Public Law 467.
10. For some contemporary defences of substantive conceptions of the rule of law, or at least conceptions which seek to draw substantive implications from the rule of law's formal requirements, see T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2003);
11. David Dyzenhaus, 'Hobbes and the Legitimacy of Law', Law and Philosophy 20 (2001): 461-498;
12. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980);
13. Jennifer Nadler, 'Hart, Fuller and the Connection between Law and Justice', Law and Philosophy 27 (2007): 1-34;
14. Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007).
15. Roughly, this is Craig's main argument: Craig (1997).
16. For the most part I use the terms "legal subject," "subject," "legal person," "person," "individual" and "agent" interchangeably. An important exception occurs below in section five, in the context of a discussion of slavery, since slaves are agents but not legal persons.
17. For insightful discussion of the significance of these interactional aspects of legal order, see Roderick Macdonald, Lessons of Everyday Law (Montreal: McGill-Queen's Press for the School of Policy Studies, Queen's University and the Law Commission of Canada, 2002);
18. "Here, There and Everywhere ... Theorizing Legal Pluralism; Theorizing Jacques Vanderlinden" in N. Kasirer, ed., Mélanges Jacques Vanderlinden (Montreal: Yvon Blais, 2006).
19. Fuller (1969, pp. 33-38).
20. Hart famously replied that Fuller confused purposive activity with morality: "Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. ('Avoid poisons however lethal if they cause the victim to vomit,' or 'Avoid poisons however lethal if their shape, color, or size is likely to attract notice.') But to call these principles of the poisoner's art 'the morality of poisoning' would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned." H.L.A. Hart, 'Review of The Morality of Law', Harvard Law Review 27 (1965): 1285-1286,
21. as reproduced in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) p. 350.
22. In the text that follows I often use "gross," or "flagrant" or "clear" to qualify "violations of human rights." To avoid complications, I use these qualifiers for the purpose of signaling cases of severe human rights violations (e.g., slavery, torture, "disappearing" political opponents) for which there will seldom (if ever) be competing moral considerations capable of justifying the violation. Of course, if the argument pursued against the no-rights thesis succeeds, then any infringement of human rights will strain the rule of law.
23. Simmonds draws a similar distinction between legality and justice (a distinction I sometimes rely on as well), and makes an argument that in some respects resembles the argument I make in section six below: Simmonds (2007, ch. 3). I use the right to refer to the distinctive normative content of legality.
24. See e.g.: Allan (2003), cc. 1-3; Craig (1997); David Dyzenhaus, 'Fuller's Novelty', in Rediscovering Fuller: Essays on Implicit Law and Institutional Design, eds. W. Witteveen and W. van der Burg (Amsterdam: Amsterdam University Press, 1999) at p. 78; Marmor (2004); Murphy (2005); Nadler (2007); Raz (1979); Simmonds (2007);
25. Jeremy Waldron, 'Why Law - Efficacy, Freedom, or Fidelity?', Law and Philosophy (1994) 13: 259-284.
26. Fuller (1969, p. 13).
27. Ibid. at p. 43.
28. I defend this conception of fiduciary relationships, as well as a fiduciary conception of the state, in Evan Fox-Decent, 'The Fiduciary Nature of State Legal Authority', Queen's Law Journal 31 (2005): 259-310.
29. A major difference between contractual duties of performance and fiduciary duties of loyalty, at common law, is that a breach of the duty of loyalty typically gives the aggrieved party access to more generous remedies than she could claim under contract law. In this way, the common law a.rms that breaches of loyalty are also breaches of trust, and that, other things being equal, breaches of trust are in some sense graver than mere failures to perform a contract.
30. Fuller (1969, p. 39).
31. Ibid. at p. 203.
32. See his Introduction in Kenneth I. Winston, ed., The Principles of Social Order: Selected Essays of Lon L. Fuller (Duke University Press, 1981) at pp. 35-36.
33. I will not attempt to defend systematically an account of legal obligation, nor is such a defence necessary for present purposes. Just as we do not need a complete account of justice to recognise clear cases of injustice, it is enough to note, as Fuller does at various points, that systematic violations of the internal morality of law would undercut whatever obligation might otherwise attach to the impeached rule. Plausibly, the Fullerian-.duciary view of authority would point to three conditions capable of jointly explaining the circumstances under which an exercise of public power can give rise to a defeasible duty to obey the law: (i) the presence of discretionary public power of an administrative nature; (ii) the incapacity of private parties to exercise public powers; and, (iii) the fiduciary principle's authorisation of public authority, on behalf of the people, to announce and enforce legal obligations in accordance with the rule of law. For a novel account of legal obligation derived from Fuller's idea of reciprocity, see Nadler (2007).
34. Fuller (1969, pp. 39-40).
35. Ibid. at p. 216.
36. Fuller writes: "[A]ny attempt to conceive of a legal system as resting on a contract between lawgiver and subject not only stirs inconvenient historical associations, but has a certain incongruity about it, especially when we recall that in a democratic society the same citizen may be both lawgiver and legal subject." Ibid. at p. 217.
37. Ibid.
38. Brudney deploys this example to argue that unarticulated and interlocking expectations alone cannot establish that the relationship between lawgiver and legal subject is intrinsically morally desirable: Brudney (1993, p. 284). The argument in the text below attempts to rehabilitate Fuller's argument in light of this objection.
39. Immanuel Kant, The Metaphysics of Morals, trans. by Mary Gregor (New York: Cambridge University Press, 1991) (First published in 1797) at 98-99. In M.(K.) v. M.(H.), [1992] 3 S.C.R 6 [M.(K.)], La Forest J. wrote for the majority of the Supreme Court of Canada (the minority disagreed with him on other issues) that "[i]t is intuitively apparent that the relationship between parent and child is fiduciary in nature," and that "[t]he inherent purpose of the family relationship imposes certain obligations on a parent to act in his or her child's best interests, and a presumption of .duciary obligation arises." Ibid. at 61 and 65.
40. See e.g: Annette Baier, 'Trust and Antitrust' (1985) 96 Ethics 231;
41. Richard Holton, 'Deciding to Trust, Coming to Believe' (1994) 72 Australasian Journal of Philosophy 63;
42. Russell Hardin, 'The Street-Level Epistemology of Trust' (1993) 21 Politics and Society 505;
43. Partha Dasgupta, 'Trust as a Commodity', in Diego Gambetta, ed., Trust: Making and Breaking Cooperative Relations (New York: Basil Blackwell) 49;
44. John Dunn, 'Trust and Political Agency', in Diego Gambetta, ed., Trust: Making and Breaking Cooperative Relations (New York: Basil Blackwell) 73;
45. Diego Gambetta, 'Can we Trust Trust?', in Diego Gambetta, ed., Trust: Making and Breaking Cooperative Relations (New York: Basil Blackwell) 213;
46. Jessica Miller, 'Trust: The Moral Importance of an Emotional Attitude' (2000) 3(3) Practical Philosophy 45;
47. Trudy Govier, 'Self-Trust, Autonomy, and Self-Esteem' (1993) 8 Hypatia 100, and Social Trust and Human Communities (Montreal: McGill-Queen's University Press, 1997);
48. Karen Jones, 'Trust as an Affective Attitude' (1996) 107 Ethics 4.
49. Baier considers this to be one of the fundamental differences between consent and trust: "Whereas it strains the concept of agreement to speak of unconscious agreements and unchosen agreements, and overstrains the concept of contract to speak of unconscious or unchosen contracts, there is no strain whatever in the concept of automatic and unconscious trust, and of unchosen but mutual trust. Trust between infant and parent, at its best, exhibits such primitive and basic trust." Baier (1985), pp. 244-245.
50. Lon L. Fuller, 'Freedom as a Problem of Allocating Choice' (1968) 112 Proceedings of the American Philosophical Society 101 at 103, at pp. 103-104. In these passages he analogises the freedom afforded by legal order to the choices provided by a library, choices that are necessarily limited by scarce resources and so guided by standards and the librarian's sense of trusteeship, a sense that implies that the conscientious librarian will stack the shelves with more than just comic books.
51. Ibid.
52. This is the insight that drives Waldron's understanding of Fuller, one that takes its bearings from the idea that the form of law - a form based largely on Fuller's internal morality - is what attracts our allegiance to it, and thus our fidelity to law as legal subjects explains and justifies the internal morality. Waldron (1994). I think Waldron gets things backwards because he does not see the connection of freedom and dignity to the internal morality, and therefore he supposes that fidelity to law is the basis of the internal morality rather than a consequence of it.
53. Fuller (1969, pp. 162-163). For other arguments that Fuller took freedom to be the bedrock concern of law, see Nadler (2007); Simmonds (2007); K. I. Winston, 'Legislators and Liberty', Law and Philosophy 13 (1994): 389.
54. For the idea that Fuller took agency to underwrite self-directed social interaction as well as reciprocity between implicit and explicit law, see Gerald Postema, 'Implicit Law', in W. Witteveen and W. van der Burg, eds., Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999) at p. 361.
55. For the connection between agency and public administration construed as a nexus of implicit and explicit law, see Roderick Macdonald, 'Legislation and Governance', in Rediscovering Fuller: Essays on Implicit Law and Institutional Design, eds. W. Witteveen and W. van der Burg (Amsterdam: Amsterdam University Press, 1999) at p. 278, esp. pp. 302-303.
56. Fuller (1969, p. 165).
57. Ibid. at 167.
58. Ibid. at p. 204.
59. Lon L. Fuller, 'Freedom - A Suggested Analysis', Harvard Law Review 68 (1955): 1305 at p. 1314.
60. Fuller (1968, p. 103).
61. Fuller (1955, p. 1314).
62. For the sake of clarity and exegetical ease, the argument in this section focuses on the subject's capacity to obey the law, legal responsibility for wrong-doing, and the consequences that would follow from an inability to obey the law if the inability were caused by some defect in the law itself. The same argument, one based on the agency presupposed by legal personality, can be made with respect to the subject's capacity to participate in the good life with others, a participation made possible by the firm baselines for interaction that law secures.
63. I am simplifying. There are difficult cases which complicate the picture, such as those to which Fuller refers in his discussion of frustration, the contract doctrine that concerns cases in which the performance of a contractual duty is frustrated by an outside event. Similarly, if one mistakenly trespasses on another person's land, the trespasser is liable despite the absence of either intent or fault. To bring these sorts of cases within the scope of a freedom-based account of law would require an explanation of the sense in which property and contractual entitlements embody freedom in a way that can ground claims against others who may be morally blameless. Kant and Hegel each develop theories of abstract right which base law, including property and contract, on such an idea of freedom. See: Kant (1797); G.W.F. Hegel, The Philosophy of Right, trans. T.M. Knox (New York: Oxford University Press, 1967) (First published in 1821). I do not elaborate on their theories here.
64. See E.J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995) for an elucidation of Kant's project.
65. See Alan Brudner, The Unity of the Common Law (Berkeley: University of California Press, 1995) for an attempt to thematically unify the common law using Hegel's theory.
66. Raz (1979, pp. 214-19). Raz says that the list is not exhaustive, and that it may change with context.
67. Ibid. at 226.
68. Ibid. at 225.
69. Ibid. at 221.
70. Ibid. at 224.
71. Marmor (2004, p. 40).
72. Certainly the powerful will often take advantage of law to the extent that they can, and may do what they can to bend law to achieve their aims. However, history is littered with countless instances in which the powerful resist law because law provides a forum in which public reason can operate as a check against concentrated and otherwise unaccountable power. The history of labour reform, for example, reveals a steady resistance on the part of employers to submit to labour laws that facilitate unionisation and which replace dismissal at the employer's discretion with dismissal for cause. And, on the international scene, it is perhaps not surprising that the United States of America has withdrawn its ratification of the International Criminal Court. Imperial power does not permit itself to be judged and sentenced. The Gauls never judged the Romans in a court of law; mutatis mutandis, the same holds true today.
73. William Golding's classic, Lord of the Flies, is a powerful reminder of both the resistance to law by the strong and the value of law to the weak. In Golding's novel about a group of boys trapped on an island, no one treasures the order-instilling conch more than the asthmatic and near-sighted Piggy, and no one despises it more than the athletic and savage Jack. W. Golding, Lord of the Flies (New York: Penguin Putnam Inc, 1962) (First published in 1954).
74. Thomas Hobbes, Leviathan C. B. Macpherson (ed.) (London: Penguin Classics, 1986) (First published in 1651) ch. 13 at p. 183.
75. Simmonds (2007, pp. 141-143; 182-189).
76. Children and convicted criminals may appear to present complications. But recall that the fundamental interaction that gives rise to a presumption of trust and a fiduciary relationship is not a declaration of trust on the part of those subject to state authority, nor even an assumption that the subject tacitly entrusts the state with legal powers. Rather, it is in virtue of the state's assumption and exercise of irresistible legal powers (powers that private parties are not entitled to exercise) that the law, through the fiduciary principle, declares the state to be acting on the basis of the trust of those subject to public authority; i.e., on the basis of public trust. Thus, children and convicted criminals are protected regardless of their inability to do anything to repose trust in the state (children), and regardless of whether they have lost certain rights on account of their infringement of the rules the state is entrusted to enforce (criminals).
77. Hart may not have made quite this strong a claim. He admits that treating like cases alike inheres in the concept of justice, and that this principle is implicit in the idea of a legal system consisting in general rules. Thus, "there is, in the very notion of law consisting in general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles." H.LA. Hart, 'Positivism and the Separation of Law and Morals', Harvard Law Review 71 (1958),
78. as reproduced in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) p. 81. However, he dismisses this contact with moral principles with the observation that it concerns justice in the administration of the law rather than the justice of the law itself. Furthermore, in the paragraph following the passage quoted here, and elsewhere in his debate with Fuller (e.g., Hart, 1965), it is clear that he takes the possibility of wicked regimes complying with the internal morality to support the separation thesis. This is largely the point that Raz later develops (Raz, 1979), and this position explains Hart's and Raz's efforts to account for the internal morality in terms of efficacy alone.
79. Another common way of cashing out the distinction is in terms of the right and the good. As will become clear, I rely explicitly on this distinction. I begin with wrongs and harms because the wrong/harm distinction illustrates at a glance something important about the distinction between the right and the good; i.e., that infringements of the right are intelligible independently of infringements of the good.
80. Conversely, some harms do not constitute wrongs, or at least do not constitute wrongs of a legal and actionable nature. For example, competitive activity in the market typically makes the competitors worse-off than they would be if any one or a group of them had a monopoly, but such harms are not wrongful. Indeed, they are encouraged.
81. Depending on one's view of welfare or well-being (i.e., if welfare or well-being includes objective facts about the world of which one may have no knowledge), one might think that someone is made worse-off by invasions of privacy such as the one I have described. However, we can still distinguish between wrongs that occasion damages (e.g., I discover something important about my friend through an invasion of his privacy and then exploit that knowledge to his detriment) and wrongs that do not (e.g., the invasion of privacy in the example in the text). In law, the issue of whether one party has breached a duty owed to another is determined independently of whether the possible breach resulted in damages. This is ultimately the basis of the wrong/harm distinction discussed in the text above, and so it is not a distinction that depends on one's view of welfare or well-being.
82. In earlier formulations of the internal morality Fuller does not discuss the role of judges in much detail, but it surfaces prominently as an implicit component of his eighth principle - congruence between declared law and official action - in his discussion of the rule of law in his "Reply to the Critics" (Fuller, 1969, pp. 189-242). Raz too counts an independent judiciary as part of the rule of law (Raz, 1979, pp. 216-218). Most of the legal literature on the rule of law today concerns this aspect of it. See e.g.: Allan (2003); Craig (1997); D. Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006).
83. For discussion of the intimate relationship between authority and coercion in Kant, see Arthur Ripstein, 'Authority and Coercion', Philosophy and Public Affairs 32(1) (2004): 2.
84. This paper builds on an interpretation of Lon L. Fuller first essayed in a chapter of my doctoral dissertation, Sovereignty's Promise: The State as Fiduciary (University of Toronto, Department of Philosophy, 2004). I am grateful to my supervisor, David Dyzenhaus, for discussion and comments on several drafts, and to committee members Arthur Ripstein and Lorne Sossin for valuable suggestions. I presented the paper in something closer to its current form at a two-part conference, "Lon Fuller and Contemporary Legal Controversies," held at the law faculties of the University of Toronto and McGill University in April and May 2005. I thank Sean Rehaag for both organising the event and comments on the paper, and I thank the conference's participants for forcefully challenging the claims defended here. I also owe thanks for commentary to Daniel Brudney, Roderick Macdonald, Matthias Mahlmann, Margaret Martin and Colleen Murphy. Finally, I am grateful to the Social Science and Humanities Research Council of Canada for financial support that made this paper possible.