I wish to summarize the salient points contained in an old paper entitled “The Rule of Law and the Legitimacy of Constitutional Democracy” written by Prof. Michel Rosenfeld a few years ago, for purposes of legal research of the visitors of this blog. The philosophical and legal concepts discussed therein are still valid.
The rule of law is a cornerstone of contemporary constitutional democracy. It requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law.
The three essential characteristics of modern constitutionalism are limiting the powers of government, adherence to the rule of law, and protection of fundamental rights.
It does not necessarily follow that constitutional democracy under the rule of law is always indispensable or the best alternative. In some cases, constitutional democracy could be superfluous or even undesirable.
For example, in a close knit homogeneous society that is deeply religious and ruled by revered leaders who are widely believed to have direct access to divine commands, a theocracy would plainly seem more appropriate than a constitutional democracy. In such a society, instructions and directions imparted by the religious leaders would be paramount, leaving little room for the rule of law.
In contrast, in heterogeneous societies with various competing conceptions of the
good, constitutional democracy and adherence to the rule of law may well be indispensable to achieving political cohesion with minimum oppression. Such heterogeneous societies can be characterized as pluralistic. Most contemporary nation-states qualify as pluralistic.
Because people in pluralistic societies do not share the same values or interests, the legitimacy of their fundamental political institutions ultimately depends on some kind of consent among all those who are subjected to such institutions. Institutional legitimacy and political justice are conceived in terms of consent. This is the social contract theory as articulated in the philosophies of Hobbes, Locke, Rousseau, Kant, et. al.. The legitimacy of government depends on the consent of the governed.
Constitutional democracy itself can be oppressive since it generally imposes at least two kinds of coercion. To the extent it is democratic, constitutional democracy implements the will of political majorities and coerces political minorities to contribute to the realization of majority objectives with which minorities may strongly disagree. On the other hand, to the extent that constitutional democracy affords protection to certain fundamental rights and certain vindications of such rights frustrate the ability of majorities to fulfill certain objectives which they consider paramount, the enforcement of constitutional rights would seem to lead to a significant amount of coercion.
The rule of law itself is coercive inasmuch as citizens are subjected to laws with which they disagree or which they find oppressive. Consent to constitutional democracy and the rule of law may not eliminate coercion but it would legitimate it. If constitutional democracy and the rule of law can be genuinely legitimated on the basis of some plausible notion of consent, the mere fact they may also be coercive would not necessarily negate their legitimacy.
The "rule of law" is often contrasted to the "rule of men." In some cases, the "rule of men" (or, as we might say today, "the rule of individual persons") generally connotes unrestrained and potentially arbitrary personal rule by an unconstrained and perhaps unpredictable ruler.
At a minimum, the rule of law requires fairly generalized rule through law; a substantial amount of legal predictability (through generally applicable, published, and largely prospective laws); a significant separation between the legislative and the adjudicative function; and widespread adherence to the principle that no one is above the law.
To become legitimate, the rule of law would need democratic accountability, procedural fairness, and substantive grounding. However, satisfying these requirements may be necessary without being sufficient to produce legitimacy. Democratic laws may be oppressive to minorities, procedural fairness may be consistent with a significant measure of substantive inequity, and the substantive values vindicated by any particular instantiation of the rule of law may be rejected by a sizeable portion of the polity.
A further difficulty stems from the split within the rule of law in a constitutional democracy. Even if we assume that, as shields against ordinary laws, constitutional rights command greater support among the citizenry than most ordinary laws, there would still be constitutional rights opposed by some of the citizens. In a constitutional democracy, all laws are prone to being considered advantageous or acceptable by some and oppressive or coercive by others. The fact that all laws, whether constitutional or ordinary, would be approved by some but rejected by others seems to erect a formidable barrier to the legitimation of the rule of law in a constitutional democracy.
Even if there were a consensus on some constitutional constraints, it seems highly implausible that in any pluralist constitutional democracy there would be unanimity on a sufficient core of constitutional fundamentals to directly or indirectly legitimate the rule of law all the way down. There is certainly no such unanimity in the United States, as evinced by deep splits over key constitutional issues including federalism, abortion, affirmative action, equality for women, homosexuals, and the relationship between state and religion.
Actual unanimous consent for any meaningful constitutional constraints, let alone for any rule of law regime, seems highly implausible. Actual consent, however, is unnecessary. It is arguably sufficient for purposes of assessing the legitimacy of a rule of law regime to determine whether acceptance of the latter would be reasonably consistent with the diverse agendas of all concerned.
The legitimacy of law can be established dialogically through communicative action among persons who recognize one another as equals and who agree to accept as legitimate only those laws to which they would all consent, both to enact as autonomous legislators and to follow as law-abiding citizens.
Law cannot be legitimated on purely procedural grounds.
A legal regime is legitimate if it is grounded in the right. Acknowledging that citizens have different interests and competing ideas about the pursuit of happiness, nothing like an actual consent of the entire citizenry could ever validate any piece of legislation. Legitimacy cannot be established at the level of interests or of the good, but only at that of the just and the right—that is, by categorically treating all citizens as free and equal and as ends in themselves. In other words, a law can be legitimate only if it is reasonable for every citizen to accept it as being right and just.
The key question is whether it is proper for citizens—conceived as free and equal and as treating one another as ends in themselves—to have enacted the law in question as legislators and to have willingly accepted to be bound by it as citizens. If the answer is in the affirmative, then the law is legitimate.
The test for self-legislation boils down to a requirement of formal equality before the law. So long as laws are equally applied to all, they must be deemed legitimate regardless of their content.
According to Rousseau, the conflict between clashing individual interests, on the one hand, and the common good of the polity, on the other, could be resolved through pursuit of democratic self-government. In Rousseau’s conception, however, democracy is not mere majority rule with the inevitable consequence that political minorities are compelled to obey laws imposed against their will. Instead, democracy requires implementation of the general will through the efforts of the entire citizenry, working to overcome the disparate demands arising from the realm of clashing private interests in order to embrace as their own what is good for society as a whole.
By partaking in the legal expression of the general will, every citizen engages in self-legislation. Conversely, as a person with private interests, each member of the polity must voluntarily restrain his or her particular interests in order to pave the way for the laws embodying the general will, thus freely consenting to become bound by such laws.
Unlike the United States, the United Kingdom does not have a written constitution, and its judges thus do not have as clear a mandate as their American counterparts to provide a check against legislative powers. Nevertheless, the Anglo-American tradition, relying on the common law, has developed a strong sense of the rule of law. And as we have already seen and will now further investigate, unlike their continental counterparts, the Anglo-American concept of the rule of law is not exclusively dependent on the state as such, but rather functions as a buffer between the interests of the state and those of its citizens.
In its American version, the rule of law is grounded on a written constitution designed to provide legal expression to preexisting, inalienable fundamental rights. These rights are deeply rooted in a vision of natural rights as belonging to the individual and as preexisting and transcending both the social contract and civil society.
In accordance with this vision, the individual agrees to the social contract and civil society in order to secure better coordination in the enforcement of his or her rights. This, in turn, imposes two essential duties on the state—created pursuant to the social contract: the negative duty to refrain from interfering with its citizen’s enjoyment of their inalienable rights and the positive duty to deter or punish private infringements of fellow citizens’ rights through the provision of police protection and the enforcement of private contracts.
Strictly speaking, the latter state duty is positive only in a derivative sense, as its goal is not to confer any right on the individual, but rather to insure that others are prevented from harming or destroying already existing rights. Under the vision in question, therefore, the raison d’être of the state is to safeguard its citizens’ negative rights through self-restraint and through restraint of would-be rights infringers.
The rule of law can be invoked against the state. This raises a paradox. Though the state may be morally obligated to yield whenever it threatens natural rights, so long as it retains a monopoly in lawmaking and law enforcement, nothing short of revolution would seem capable of prompting it to desist from a deliberate course of natural rights infringement.
To the extent that the common law is always changing, predictability is problematic, and it seems difficult to conceive of the rule of law in a setting in which citizens may be unable to discover ex ante the consequences of their acts. Furthermore, so long as the line between judicial interpretation and judicial lawmaking remains blurred, there seems to be no cogent way to draw a plausible distinction between the rule of law and politics.
These difficulties may be surmounted if the lack of predictability associated with the common law could be tempered by procedural safeguards, or if the dynamics of the common law system could foster predictability in ways that are not dependent on rules and if the realm of judicial intervention could be ultimately constrained by principle.
In its purest form, “the common law is a case-by-case judge-made law that evolves through elaboration of precedents by means of a process of accretion, driven by a logic of induction”. Judges are supposed to take relevant precedents into account and to resolve matters at hand in a manner consistent with such prior judicial determinations. In such a system, “legal rules are supposed to emerge gradually by stringing together a sufficient number of successive precedents to circumscribe a distinct path”. But unless all existing precedents compel a determinate outcome, which is often not the case, “the common law approach cannot guarantee predictability”.
The “inherent lack of predictability associated with the common law” can be somewhat alleviated through “constitutional provisions and statutory laws”. Many key constitutional provisions, such as the "due process" and the "equal protection" guarantees contained in the American Constitution are stated generally and at a high level of abstraction. This allows for a wide range of plausible interpretations, and common law trained judges, who have dealt with such constitutional provisions, have widely differed in their interpretations, making these provisions “nearly as unpredictable as constantly evolving common law standards”.
A procedurally grounded rule of law revolves around three essential components: the rule of law in the narrow sense; the prevalence and maintenance of fundamental due process guarantees; and institutionalization of the adversary system of justice as a means to channel conflicts towards legal resolution rather than towards other possible outcomes.
Even if one considers common law trained judges unpredictable or at times arbitrary, the rule of law in the narrow sense does insure some checks on the exercise of the power of the state in the name of the law. To the extent that judicial decisions must be made public and the reasons for such decisions revealed in published opinions, the likelihood of blatant judicial abuses seems rather remote.
Fundamental due process guarantees have been enshrined in the U. S. Constitution since the adoption of the Bill of Rights in 1791. It has been further argued that the entire Bill of Rights and even the Constitution as a whole is overwhelmingly process oriented. The function of the Constitution and of judicial review is to provide the necessary legal basis for a well-functioning democracy.
The Constitution is meant to insulate the democratically generated legal order against majoritarian excesses and pathologies. In this context, process based guarantees become part and parcel of the rule of law through imposition of procedural constraints on the generation and application of majority-based legal rules.
The justification for substantive due process is that process-based and procedural rights can be persuasively justified only if they are understood as part of a set of fundamental norms inextricably tied to certain crucial substantive values. But to the extent that these substantive values are not universally embraced within the polity, the substance/process dichotomy cannot be legitimately used to vindicate the rule of law in the context of significant unpredictability concerning legal outcomes.
The third component of a procedurally-grounded rule of law is the adversary system of justice. The adversary system blends naturally with the common law approach and complements the rule of law in the narrow sense and in the notion that no one is above the law. Ideally, the adversary system allows each contending party to argue his or her case to an open-minded and disinterested judge who will reach a decision only after having heard and properly weighed all the relevant evidence presented as well as after having duly considered the conflicting interpretations of relevant legal precedents advanced by each of the contenders.
That law is ultimately politics is a position elaborated by the Critical Legal Studies ("CLS") movement. The core of the CLS critique is that common law judges are ultimately unconstrained by the legal materials that they must interpret, and therefore their decisions are political. Typically, the constitutional, statutory, and common law materials with which judges must deal are made up of widely overlapping rules and exceptions, conflicting principles and standards, and open-ended directives susceptible to contradictory interpretations. Accordingly, judges always have a choice among various plausible alternatives with differing political consequences. Because of this, the judicial decision is as political as the legislative or executive one. But it is couched in legal rather than political terms, which often allows it to conceal its politics, thus frequently escaping the adverse reactions that typically confront controversial legislative enactments or executive policies.
Stabilizing expectations in an increasingly complex world is one of the paramount functions of contemporary law. Upon first impression it would seem that a regime of fairly rigid civil law-type rules would be far preferable for this purpose than a set of evolving common law standards, or loosely construed statutory provisions interpreted in accordance with broad common law canons. Upon further consideration, however, common law methodology may be better attuned to the dual task of stabilizing expectations and meeting evolving needs in a rapidly changing economic environment. Indeed, so long as the interests of legislators, judges, and private parties converge, expectations may be kept relatively stable, even in the face of frequent adaptation to novel conditions. While prediction of actual outcomes may be more difficult, confidence in the maintenance of accepted standards concurrently with adaptation to rapidly evolving needs may well provide the best possible means of stabilizing expectations in the polities at the forefront of economic development.
In any pluralist society with diverging conceptions of the good, there may be as wide a lack of consensus concerning what ought to count as a fundamental right, as regarding what would constitute a fair means to stabilize legal expectations. The more disagreement there is on both of those issues, the more existing legal norms are likely to be perceived as a function of politics rather than the institutionalization of the rule of law. More generally, in terms of perception, the rule of law seems to go hand in hand with a relatively high level of integration among diverse perspectives, while the rule of politics seems tied to significant fragmentation within the polity.
