The Judiciary - An Ordinary Persons Perspective

The higher councils of the judiciary are collegiate bodies—composed in various ways of judges and lay members—and are in charge of administering the status of judges. As we will see, their impact has been a somewhat radical alteration of the organizational setting of bureaucratic judiciaries. These organizations strengthen judicial independence and, at the same time, foster new connections with the political system. In this process the powers and composition of these self-governing bodies become critical factors. Obviously, the more extensive their functions, the stronger their role will be and the weaker the minister of justice will be.

Two additional factors to take into account are the ratio of judges to nonjudicial members on the higher councils and the way in which judicial representatives are chosen. Judicial independence will inevitably be stronger the higher the ratio of members chosen directly by and from the judiciary. One of the main consequences of creating a higher council of the judiciary is—rather obviously—to increase the external independence of the judiciary by decreasing the traditional power of the executive.

But since no higher council is composed solely of judges, an important role remains for the institution that appoint the nonjudicial members. This is usually a parliament, allowing the political parties to bypass the minister of justice—whose powers thereby tend to be weakened—and influencing the judiciary directly. The creation of a self-governing body also has consequences for the internal independence of the judiciary. Entrusting the promotion and appointment of judges to a collegial body, where normally all judicial ranks are represented, contradicts the traditional hierarchy principle, whereby only higher-ranking judges are entitled to evaluate lower-ranking colleagues.

In this way, the lower ranks acquire a new power, since they can participate in the process of choosing higher-ranking judges. Moreover, judicial elites have been further weakened by the diminished power of their traditional ally, the minister of justice. As a result, it is not surprising that challenges to the very concept of a career judiciary by the lower ranks have often been successful. It is not coincidental that in those countries with higher councils the number of judicial ranks has been reduced, and the influence of the senior judges' assessments of lower-ranking judges seems to be declining.

By substituting an objective parameter such as the number of years in judicial office for the subjective assessment of merit by superiors, the higher-ranking judges' power is reduced. For instance, in Italy—the most extreme case—promotions have de facto been abolished, at least from the economic point of view, since judicial salaries and rank increase simply on the basis of the number of years of service.

The erosion of hierarchical links has had considerable impact on civil service—style judiciaries and is particularly relevant to the general expansion of judicial power. With the creation of higher councils, the reference group of judges has become more varied. The traditional members of the reference group, such as senior judges and legal academics, 28 have decreased in importance, since they no longer enjoy a monopoly of power over judicial promotion. In addition, the professional criteria of the judiciary have also begun to shift. Technical legal knowledge and conformity to the ideology of the judicial elite is no longer the determinative element in promotions.

The views of others outside the judicial system for example, political parties in parliament and also unions and other interest groups have gained in importance, especially if they can influence the appointment of members of the higher council. Similarly, the concerns of the media and the judiciary increasingly overlap, as judicial actions—especially those of prosecutors—provide the media with news. In return, the media have been able to support and publicize the actions of judges and prosecutors.

Inside the judiciary itself, the higher councils have increased the importance of a significant new actor, the judicial associations, since these are the groups that organize the electoral process of judges. In Italy, where this trend is more developed and no judicial member of the Higher Council of the Judiciary Consiglio superiore della magistratura is likely to be elected without the backing of one of these groups, decision making in the Higher Council is heavily dependent on alignments among them.

On the other hand, the council also comprises political appointees, and their point of view has to be taken into account. Thus, magistrates interested in being promoted or transferred to another position the vast majority cannot fail to take heed of the role of these groups in the council's decision making.

In fact, as judicial actions gain political significance, the higher council may become the main institution where the judiciary's elected representatives can meet political representatives and develop new relationships with the political system. Judicial self-governing bodies have thus opened up a new channel for political influence, which may be understood as a consequence of the slow but steady attempt to limit executive power and the concomitant strengthening of judicial guarantees of independence. Even though the extent to which the judiciary intervenes in the political process is conditioned by the simultaneous evolution of the political system, as well as by the way the judicial system is organized, the connections between judges and the political system nonetheless do influence judges and their reference groups, their conception of their judicial role, and, therefore, their decisions.

The expansion of judicial guarantees of independence has involved, at least to some extent, public prosecutors as well. This process has been stronger in those countries where judges and prosecutors form a single professional group. In Italy, prosecutors enjoy the same guarantees as judges. As a consequence, their autonomy is extremely high; the executive cannot in any way issue instructions to them.

In addition, prosecutors, together with judges, elect the majority of the members of the Higher Council. In France, too, where the office of minister of justice has been able, at least so far, to keep most of its traditional powers, the autonomy of public prosecutors is growing. Moreover, since , the powers of the Higher Council have been expanded. Above all, judicial investigations—often led by instructing judges who enjoy full independence from the executive—have increasingly found support in public opinion, with the consequence that the executive often has not been able to exert all its institutional powers on public prosecution.

On the other hand, unlike France and Italy, Germany has seen little alteration of the judicial setting in the postwar period, apart from the institution of the Federal Constitutional Court itself. Today, judges and prosecutors remain organized along hierarchical lines that allow the minister of justice, higher-ranking judges, and senior prosecutors to shape their own and others' careers in the more traditional manner. This attitude has to be related to the fact that, after the war, in addition to the introduction of a politically appointed Constitutional Court, the only significant change has been that judges of the highest federal courts are now chosen by parliament, thus reinforcing the influence of the main political parties on the judiciary.

The role of judicial self-governing bodies and judicial associations is still limited, at least in comparison to their role in Latin Europe.

The limited political significance of the German judiciary has to be understood in the context of the country's high degree of political stability, which has not been seriously altered by reunification. The German parliamentary system entrusts the executive with strong powers and, above all, is founded on a stable party system with healthy parties supported by a network of strong political organizations.

With a significant level of party alternation in government, elected institutions have been able to respond effectively to political demands. This has reduced the scope for judicial action, which, in turn, is constrained by traditional bureaucratic controls and by an array of higher courts whose composition ensures that judicial values generally correspond to those prevailing in the political system.

However, since its inception in , the Federal Constitutional Court has played an increasingly significant role in the German political process, enjoying a growing prestige in the academic legal community as well as with the general public. Although constitutional court judges tend to define their role as guardians of the law trying, for example, to arrive at the supposedly right answer in the interpretation of the Basic Law , the appointment process ensures that the major parties are proportionally represented on the Court and, therefore, that the Court will not be out of step with the political majority for too long or to an excessive extent.

The institutional changes analyzed here describe a context in which forms of judicial—and also prosecutorial—activism have easily developed. Actually, the growth of judicial activism in Continental Europe has been one of the most significant developments of the last decades. There are, as well, some specific traits that differentiate this experience from that of other countries, including the United States.

Since the s, European judges—and prosecutors—have displayed a propensity to form union-like associations. Some of these, especially since the late s, have begun to elaborate progressive judicial policies. Among the most significant of this sort are Magistratura democratica in Italy, the Syndicat de la magistrature in France, and Jueces para la democracia in Spain. This development has acquired a European—and international—dimension. In , a European federation of progressive judicial associations was founded: Today, it comprises fifteen national associations from eleven countries: However, these developments seem to have been most marked in the countries of southern and Latin Europe.

Apart from Germany—and German judges do not seem to play a prominent role in the association—no North European country belongs to MEDEL, indirect evidence that judicial mobilization in those countries seem to be less developed. These groups are characterized by strong, vital associational activity.

They organize all sorts of meetings and seminars, edit books and reviews, and have been able to obtain the collaboration of a significant part of the academic community. In this way, judicial policies on a variety of politically significant subjects are elaborated. The result is that the policies of the groups are widely disseminated among the judges. Although there is no precise data about the extent to which these groups have been able to influence courts' decisions, an indirect estimate is provided by taking into account the support for these leftist groups inside the judicial corps.

In the case of Spain, where there is no direct election of the higher council by judges, the support for the judicial left may be at least 10 percent of the judiciary. In France, again in , in the same sort of election, the Syndicat has been able to obtain 21 percent of the prosecutors' votes and All these groups—capitalizing on the introduction of judicial review of legislation and on the strengthening of judicial guarantees of independence—tend to recognize judicial creativity openly, namely, the fact that judges and prosecutors are constrained, only in part, by positive legal rules.

In this view, judges must play a pivotal role as the guardians of citizens' rights, whose number has been slowly but steadily increasing, with a growing list of civil, political, and, above all, social rights housing, work, health, education, and so forth now considered fundamental.

Traditionally, progressive judicial groups have been strongly influenced by the policies of main parties of the left. Therefore, the interests of the working classes were the main point of reference of judicial actions of these groups. In Western Europe, the working class has lost its traditional, presumptive homogeneity, while its living conditions have everywhere more or less improved.

Therefore, although workers' interests remain a focus of attention, the working class as a whole can no longer be considered a marginalized group; today, other groups seem more important. The French Syndicat de la magistrature, for example, is devoting its attention mainly to four groups: Immigrants, minors, and women are the subjects on which the Spanish Jueces para la democracia have recently taken a public stand. The capacity of the European judiciaries to pursue these policies is rather substantial and growing. As we have seen, in the second half of the twentieth century, guarantees of judicial independence have almost everywhere been reinforced.

Judicial review of legislation, although formally entrusted to special constitutional courts, has helped enlarge judicial creativity even in ordinary courts, 48 and this development has been supported by the actions of European supranational courts. In addition, although in today's Europe no system of criminal justice is patterned on purely inquisitorial lines, Continental criminal justice is still influenced by the inquisitorial tradition. As a rule, the interest of the state—represented by the instructing judge and the public prosecutor—enjoys a somewhat privileged position into the criminal process.

In Italy, where the office of the investigating judge was abolished in with the enactment of an accusatorial code of criminal procedure, the investigation is entrusted to independent public prosecutors. All these actors enjoy, at the least, de facto substantial margins of discretion and are usually provided with significant powers, which they can employ in their investigations. Progressive judicial groups have played a significant, if indirect, role as well in the anticorruption investigations that in the last decades have involved the political class in Europe and especially in Italy, France, and Spain.

Putting an end to the immunities of the political class—and therefore investigating all its possible wrongdoings—has been considered one of the main tasks of the judiciary, especially in contexts where the mechanism of political accountability was not working well. Such situations have arisen chiefly because of a stalemate at the political level, as in Italy, where the opposition had no real chance of acceding to power, or because of the inadequacy of the opposition in supporting the fight against corruption, as in France and Spain.

Again in the criminal field, another example of the significance of progressive judicial groups is provided by their unswerving support for the development of a universal criminal jurisdiction. As for the way courts can intervene on behalf of marginalized groups, the first, and probably most obvious, is by defending them against harassment on the part of political majorities.

More specifically, this role is especially relevant when the executive—such as the police—is involved. For example, the French Syndicat strongly criticized the instructions issued by the minister of justice on the manner of dealing with the disturbances that erupted in many French cities in the fall of However, this role of guardian of rights can be expanded, mainly in two ways. First, by enlarging the list of rights the courts are called on to enforce: Thus, the legal protection of immigrants emerges strengthened.

On the other hand, an analysis of the activity of European judicial groups shows that they also can act by directly intervening in the political process on behalf of marginalized groups. I am referring, for example, to the important role played by Magistratura democratica in supporting legislation broadening workers' rights or in resisting laws restricting immigrants' rights. As a rule, bureaucratic judiciaries tend to be more socially isolated than their common law counterparts. In fact, one of the aims of bureaucratization is to sever—or to keep to a minimum—the relationships between the judicial organization and its environment, chiefly for the purpose of providing the central political power with an effective tool of social control: In addition, bureaucratic recruitment, by focusing on general, abstract legal knowledge tends to allow less or no weight to professional experience, the acquisition of which is often conditioned by class, wealth, or family origins.

Therefore, bureaucratic judiciaries tend to present a more socially—and politically—diversified body. Therefore, when the traditional influence of the central political power is reduced or, in some cases, almost erased, courts can exhibit a higher level of autonomy relative to the powerful local interests, which at this point can no longer pressure the central government to influence local courts. Of course, much will depend on the capacity of these interests to co-opt—or even to corrupt 60 —formally independent judges.

All in all, however, the conditions for both radicalization and a positive role for the courts in defending marginalized groups seem to be more favorable in a bureaucratic context, once judicial guarantees of independence have been expanded. Moreover, in this process, a crucial role can be played by the judicial groups and associations, since they also can provide support for judicial autonomy at the local level.

Apart from the social and political diversity of the judicial corps and their degree of independence from central or local political power, there are other conditions supporting the role of courts as protectors of marginalized groups. First, important support may be provided by the academia, that is, by law professors, who traditionally enjoy high prestige in civil law countries. The emergence of a progressive or even radical legal academia—a phenomenon especially strong in the second half of the twentieth century—is obviously an element supporting a progressive vision of the judicial role.

We should add that, at least in general terms, lawyers tend to be in favor of judicial activism, since in this way their influence is expanded. Constitutional courts have been an additional and important channel in the transmission of progressive attitudes from the academia to the judiciary. As has been pointed out, 61 in the last decades a sort of dialogue has developed between ordinary and constitutional courts, and Continental constitutional courts are, in large measure, composed of prestigious law professors.

An Italian lawyer, recently appointed to the Constitutional Court, has summarized well the task of the judge in the new political and constitutional environment: They should act because of the inertia or the lack of sensibility of the executive and the legislature. Their role is to strive toward a never-ending upgrading of the levels of social and legal protection.

However, we should remember the relatively ambiguous role of academic legal ideologies. During the Weimar Republic, for example, a significant number of academics backed the attempts by the judiciary to sabotage parliamentary reforms and supported the antidemocratic evolution of the political regime. Statist liberalism tends to assume a sort of moral superiority of the state over society; the state is thought to be looking after the public interest, while society is the arena where sectional, particularistic interests tend to prevail. In a similar way, the rule-of-law ideology—today much in fashion in academia, as well as in many international organizations such as the World Bank —presents its own degree of ambiguity.

Its impact depends on how this notion is defined and on the actual implications derived in judicial decisions. As has been pointed out, a first, thin definition of the rule of law is concentrated on procedural aspects, without considering the content of the law and, perhaps, even the nature, democratic or not, of the political regime. Therefore, the extent to which the rule of law can contribute to advancing the interests of marginalized groups depends on the way these rights are defined and, above all, on the concrete implications judges decide to derive from them.

Today, in Europe, the judicial and academic left, whose influence seems significant, is striving to insert as many social and economic rights as possible into the European constitutional heritage. It hopes to legitimize progressive judicial decisions and to reduce the risk of a conservative backlash, especially on welfare rights.

The extent to which the left will succeed remains to be seen.

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As we have observed in the Italian case, judicial activism gains a lot from finding allies in the political system. Bureaucratic judiciaries, organizationally, are rather separated from the legal professions; the recruitment of attorneys into the corps is rare. Thus, the relationships with the bar are often weak and, in some cases, even in conflict. In any event, the capacity of these judiciaries to build up support among influential social groups seems limited. Therefore, an alliance with leftist political parties can enhance the role of progressive judges, though not without costs, as we will see below.

Finally, an important role is played by international connections, that is, by international or transnational organizations supporting judicial activism on behalf of progressive goals. A good example is the role played by MEDEL in organizing cultural activity in favor of activist conceptions of the role of the judges; in supporting local associations in their fight to obtain a strengthened independence of national judiciaries; and in lobbying international organizations—such as the EU and the Council of Europe—on behalf of judicial interests enlarging judicial powers, strengthening judicial guarantees of independence, improving working conditions, and the like.

We have argued that, although it is not possible to make a detailed evaluation of the impact of their decisions, Continental European judiciaries have played, at least in some cases, a positive role in protecting the interests of marginalized groups. This sea change can be explained by the radicalization some judiciaries have experienced in the second half of the twentieth century and by a favorable political and institutional context. In this connection, we have pointed out the transformations in the constitutional system of these countries, achieved with the introduction of various forms of judicial review of legislation and the strengthening of judicial independence.

As for the political context, progressive judges have profited from the support of influential leftist parties and groups.

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Thus, courts have been able to pursue, with some effectiveness, policies on behalf of minorities by stressing the need for a creative and activist judge. The relative damage to actual and perceived judicial impartiality, which pursuing these policies may entail, has been offset, to some extent, by the support of the political environment. But, the development of strong relationships between sectors of the judiciary and sectors of the political class is not without disadvantages.

This development implies some form of judicial politicization by virtue of the fact that judges tend to align themselves along party lines and politically divisive issues. Still, judicial politicization, in a context traditionally characterized by a bureaucratic setting that emphasizes the technical, value-free nature of judicial decision making, cannot but entail some costs.

For example, judges tend to enjoy a lower level of support in those countries where judicial activism seems more developed. In a democracy it is likely that, sooner or later, demands for some form of political accountability—accountability to the political majorities—will become stronger. Although the introduction of forms of accountability does not necessarily imply direct election of judges, an arrangement foreign to the European judicial tradition, nonetheless judicial independence, and the degree to which courts may act autonomously, can be curtailed.

Much will depend on the strength of the political majorities, on their capacity for introducing this sort of reform, and, on the other hand, on the ability of the judiciary to strike alliances with political groups in order to defend its interests. That there is a judicial system providing courts with the capacity for responding to various groups' demands, broad jurisdiction and relatively easy access that is, a substantial possibility of bringing cases to courts , prosecutorial autonomy, judicial powers in the management of the judicial process, judicial review, and material support that is, administrative staff ; That there exists a judiciary whose external and internal independence has been secured.

A lessening of hierarchical controls—and, therefore, an increase of internal independence—favors the development of judicial activism, especially in the lower courts, whose role is particularly important in the implementation of policies. Here the role of higher councils seems significant. On the other hand, if dismantling hierarchical controls is not balanced by other checks on judicial capacity, the risk of a decline in the professional qualifications of the judiciary is high, with a correspondingly higher risk of corruption or informal influence by external powerful interests; That a socially and politically diversified judiciary exists.

A varied judicial corps is more likely to develop forms of judicial activism supportive of minorities' interests.

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Although bureaucratic recruitment can be less reliable in guaranteeing judicial professional qualifications, it tends to produce relatively more social and political diversity;. That activist judicial groups are present. This is a crucial factor. Judicial groups can improve the capacity of the judiciary to act more coherently. Above all, they can play an important role in diffusing progressive judicial policies among judges and in ensuring their successful implementation;. That strong relationships with political and social groups of progressive orientation political parties, unions, and public-interest groups are developing.

The Rule of Law

A support structure seems to be a necessary condition for successful judicial action. In addition, as we have pointed out, too-close relationships with politics can damage judicial impartiality or the appearance thereof. Oxford University Press is a department of the University of Oxford.

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Close mobile search navigation Article navigation. The tradition of European civil law: The changes of the twentieth century. Your thinking might be different from my thinking, and it might turn out that your view of the relation between your interests and my interests and your property and my interests might be quite different from my view of the matter and quite different again from the view of the next person I came across.

The whole point of moving from a state of nature to a situation of positive law was to introduce some predictability into this picture. Unfortunately, having laid down this requirement, Locke complicated matters by adding a substantive principle of respect for private property: But then there is a difficulty. People in our day, as in his, disagree about the rival claims of labor and occupancy; they disagree about the background of common ownership; and they disagree about how much anyone may appropriate and how sensitive his appropriation must be to the needs of others.

We disagree about all that—in ways that were made evident, for example, in the debates about the Lockean theory of Robert Nozick And Locke and his contemporaries disagreed too; Locke knew, and signaled in a number of places that he knew just how controversial all this was Tully By insisting therefore that positive law is subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty.

Because the natural right of property was controversial, so the administration of any substantive constraint along these lines was bound to be controversial. And because the substantive constraint was supposed to affect the validity of positive law Locke The judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers. Elsewhere in The Spirit of the Laws , Montesquieu developed a theory of the value of legalism.

He associated this sort of respect with a monarchy ruling by law, as opposed to despotism:. In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries. The fastidiousness of the judge grows as more issues are deposited with him, and as he pronounces upon greater interests.

This emphasis on the value of complexity—the way in which complicated laws, particularly laws of property, provide hedges beneath which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law e. In the modern debate we also hear echoes of the doctrine propounded in The Spirit of the Laws Writing in the second half of the 19 th century, Albert Venn Dicey bemoaned what he saw as a decline in respect for the Rule of Law in England. The Rule of Law used to be a proud tradition that distinguished governance in England both from the executive domination of droit administratif in Francis and also from the fatuous and abstract certainties of paper constitutions in countries like Belgium etc.

For Dicey, the key to the Rule of Law was legal equality:. Attractive as this is in the abstract, it exhibited a certain naivety so far as the legal position of state officials was concerned. Officials are and often need to be treated differently in law than the ordinary citizen: For the ordinary person, the Rule of Law generates a presumption in favor of liberty: But for the state and its officials, we may want to work with the contrary presumption: Dicey had a knack of expressing the Rule of Law in terms of principles whose eloquent formulations belied their deeper difficulties.

His first principle of the Rule of Law was:. This seems fine if we are talking about the imposition of criminal sanctions. It can be read as precluding any form of discretionary regulation. Dicey was indeed inclined to disparage all administrative discretion, particularly where it seemed to be superseding what had traditionally been regarded as judicial functions. But can we really do without discretion in modern governance? Hayek was by training an economist, but he also nurtured an interest in the relation between legal structures and forms of national economy. Hayek warned in against the retention of anything like this mode of administration in peacetime.

He made an eloquent argument that in normal times a society need not be managed but should be governed—and its people largely left to their own devices—within a framework of general rules laid down in advance. These rules would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of government as to what the particular effects of their application would be.

But this lack of particular knowledge on the part of the government would be offset by the fact that rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be molested by the state, provided they operated within the parameters of the general and impersonal rules. The attention was still on the implications of Rule of Law for liberty.

But now Hayek began to wonder whether the texts of clear general legislated rules would really provide an appropriate framework for freedom. He favored something more like a common law model of predictability, with principles and solutions emerging from a series of judicial decisions in an almost evolutionary way. Lon Fuller believed that government in accordance with the forms and procedures of law had a distinctive value that could help close the gap of separation between positive law, on the one hand, and morality and justice on the other.

The conventional wisdom of the legal positivists held that laws could be impeccably drafted and even-handedly administered and still be hideously unjust: But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice. Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law:.

When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.

Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: This thesis was separate from the connection between law and morality intimated in Fuller But the two accounts of the moral significance of law were connected in a way that John Finnis explained:. A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt.

He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the s. Some theorists draw a distinction between the Rule of Law and what they call rule by law see e. They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above politics.

The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example. Thomas Hobbes may be seen as a theorist of rule by law. But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects Hobbes []: However, the distinction may not be so clear-cut.

Even rule by law seems to imply that rulers accept something like the formal discipline of legality. Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability.

Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda. They take seriously the ancient idea that we might be ruled by laws and not by men.

After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers Epstein Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others.

No doubt there is a lot of mythology in this. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state. As we saw in the discussion of Hayek , the other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials.

Legislation is a matter of will. The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative. However, most people who value the Rule of Law do not accept this approach.

If a statute is properly drafted if it is clear, intelligible and expressed in general terms and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law. Indeed that is what many scholars mean by the Rule of Law: The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.

No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action. But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede see Waldron Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises.

These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values. These principles are formal, because they concern the form of the norms that are applied to our conduct. So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form. A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.

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Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out []: These rules themselves should operate impersonally and impartially. Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive.

But it is not just a matter of the pragmatics of governance. Laws face in two directions: Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii. So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical Weber []: It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires.

In the nineteenth century, Jeremy Bentham We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it was , and to be represented so that their own side of the story could be explained.

No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.

Some procedural requirements are also institutional in character: This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws Waldron They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose.

Generality—proceeding according to a rule—is often said to contain the germ of justice Hart And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty. We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements.

Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. The commitment to such processes is the essence of the rule of law. Others, like Richard Epstein But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits.

What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair only whites, a minority of the population, had the vote. And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. World Justice Project On the other hand, as we have seen, Joseph Raz []: Those considerations, he said, are better understood as independent dimensions of assessment. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

And many liberals are inclined to follow them in that. But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy. All this sounds an analytic danger signal. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice.

The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty.

My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans. Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom. Predictability is often cited as a Rule-of-Law virtue.

In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses. He quoted Lord Mansfield to the effect that. Lord Mansfield in Vallejo v.

Wheeler 1 Cowp. These conceptions claim to bring a certain air of reality to our discussions of freedom. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application.

Knowing in advance how the law will operate enables one to make plans and work around its requirements see Hayek The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance. So we need a basis for expectation.

It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole. Bentham [, ]: The establishment of expectations, said Bentham, is largely the work of law, and the security of expectations is a vital constraint on the action of law: Joseph Raz and Lon Fuller took the point about freedom even further. To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules….

To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination. Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house.

It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato in The Statesman , Thomas Hobbes at least if the Rule of Law is supposed to take us beyond rule by law , and Carl Schmitt in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis.

The criticism by Plato c. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was. Rules themselves were part of the problem: These concerns are echoed in the work of modern legal pragmatists like Posner who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents.

Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending Schmitt ; Posner and Vermeule The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic. Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions.

But this is not really how law operates in the modern world. As Rubin points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law.

But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise Rubin