The Impossibilites of Rule of Law

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The Impossibility of the Rule of Law TIMOTHY A. O. ENDICOTT∗ Abstract—No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be
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  The Impossibility of the Rule of Law TIMOTHY A. O. ENDICOTT ∗ Abstract  —No community fully achieves the ideal of the rule of law. Puzzles aboutthe content of the ideal seem to make it necessarily unattainable (and, therefore, anincoherent ideal). Legal systems necessarily contain vague laws. They typically allowfor change in the law, they typically provide for unreviewable o ffi cial decisions, andthey never regulate every aspect of the life of a community. It may seem that theideal can never be achieved because of these features of legal practice. But I askwhat counts as a ‘deficit’ in the rule of law, and I argue that none of these featuresof legal practice necessarily amounts to a deficit. I conclude that communities failto achieve the rule of law only because of o ffi cial infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of lawis not necessarily unattainable. 1. Introduction The rule of law is unattainable. Communities never achieve it completely. Itrequires, among other things, that government o ffi cials conform to the law. Butthey may not do so, and presumably there is no large community in which theyalways do so. To the extent that o ffi cials do not conform to the law, thecommunity fails to attain the ideal of the rule of law. Perhaps no communityhas even got very close to the ideal. People do not always follow rules.I will argue that that is the only respect in which the rule of law is unattainable.Vagueness in the law may seem to contradict that claim, because vaguenessseems to make arbitrary government, to some extent, unavoidable. If arbitrarygovernment is unavoidable because of vagueness, it seems that the ideal of therule of law is, to some extent, unattainable—and for a reason other than infidelityto law.Avoiding that conclusion will require a revised account of the ideal of the ruleof law. Perhaps because communities do not come very close to the ideal, therehas been little discussion of what would count as achieving it completely. Yetthe question is basic to understanding the ideal, and trying to answer it raisessome puzzles that have not been addressed.Legal philosophers have argued over whether there is any positive virtue inthe rule of law, but there is a consensus about the requirements of the ideal: lawsmust be open, clear, coherent, prospective, and stable; legislation and executiveaction should be governed by laws with those characteristics; and there must be ∗ St Catherine’s College, Oxford. © 1999 Oxford University Press  VOL. 19 Oxford Journal of Legal Studies 2 courtsthatimposetheruleoflaw. 1 Theorganizingprincipleoftheserequirementsis, as Joseph Raz puts it, that ‘the law must be capable of guiding the behaviourof its subjects’. 2 Law that fails altogether to meet the requirements would notbe law at all, and a legal system that lacks them to some degree is defective ina legal sense. In John Finnis’s phrase, a legal system must meet the requirementsif it is to be ‘legally in good shape’. 3 I do not propose to di ff  er from the consensus about the requirements of therule of law. They seem to o ff  er an answer to our question of what would countas achieving the ideal: if the ideal is to be completely met, the requirementsmust be completely met, and to pursue the rule of law is to maximize conformityto the requirements. On that view, we might say that the requirement of  clarity requires that vagueness must be eliminated, and that a community does notachieve the rule of law to the extent that its law is vague. I will argue that sucha view would make the ideal not simply unattainable, but incoherent (section3). I will propose a revised account of the ideal, in which vagueness is notnecessarily contrary to the rule of law (section 4).The revised account will be supported by discussion of three puzzles aboutthe ideal, concerning legal change, finality in adjudication, and the oppositionof the rule of law to anarchy (section 5). The puzzles arise if we think that therule of law requires maximum stability, and judicial review of every decision,and that the life of a community be completely ruled by law. Those puzzlesmightmakeitseemasiftheruleoflawisnecessarilyunattainable,andunravellingthem will help to unravel the puzzle about vagueness. A conclusion addressesthe implications for understanding the role of courts in the rule of law, andargues that it is a basic duty of courts to decide cases that the law does notresolve: i.e. to impose resolution (section 6). Resolution is a basic requirementof the rule of law. 2. The Content of the Ideal  A community attains the ideal of the rule of law when the life of the communityis governed by law. So the rule of law can be opposed to anarchy, in which thelife of the community is not governed. 4 The rule of law can also be opposed to arbitrary government. So Aristotle wrote that it was better for the law to rule,than for any one of the citizens to rule. 5 Arbitrary government is a particular form of unreasonable government. Itabandons constraints of reason, ordinarily to do the will of the rulers. Onetechnique of arbitrary government is to dispense with laws altogether. It is much 1 See Lon Fuller, The Morality of Law (2nd edn, 1969) ch. 2, and lists derived from Fuller in Joseph Raz, The Authority of Law (1979) at 214–18 and John Finnis, Natural Law and Natural Rights (1980) at 270–1. 2 Raz, ibid at 214. 3 See Finnis, above n 1 at 270. 4 But see below n 12. 5 Politics III.16, 1287a19.  SPRING 1999 The Impossibility of the Rule of Law 3 more common to maintain a legal system, and to suspend laws, or to ignore them,or otherwise to violate the requirements of the rule of law, when convenient.People tend to think of government as ‘arbitrary’ if it has any or all of threecharacteristics:1. Government is arbitrary if it gives e ff  ect to the unconstrained will of therulers—as in an absolute dictatorship.2. Government is arbitrary if it does not treat like cases alike—if it does nottreat people consistently. 6 3. Government is arbitrary if it is unpredictable—if it does not tell its citizenswhere they stand, what their rights and duties are.It seems that government will be arbitrary if it lacks constraint, consistency, orcertainty. The rule of law seems to be opposed to government that is arbitraryin these senses, because it o ff  ers constraint, consistency, and certainty. Yet, as Iwill argue in section 3, there is good reason to think that government with allthree characteristics is unavoidable. Does that mean that the ideal of the rule of law is incoherent, because it both requires and prohibits arbitrary government?I do not think that the ideal is incoherent, and I think that we should conclude,instead, that lack of constraint, inconsistency and unpredictability are not ne-cessarily arbitrary in the ordinary, pejorative sense of the term (although forconvenience I will continue to call them ‘arbitrary government in the first threesenses’). I will argue that there is not necessarily anything at all wrong with alegal system that does not achieve complete constraint of o ffi cials, completeconsistency, and complete predictability. Note, however, that this approach hassome work to do: it needs to give an account of what is arbitrary in the ordinary,pejorative sense. We need a fourth sense of ‘arbitrary’—a sense necessarilyopposed to the rule of law, which I will state here and try to explain below:4. Government is arbitrary if its actions depart from the reason of the law.The need to reconcile lack of constraint and inconsistency with the rule of lawshould be readily apparent: rulers can and do use the law to achieve their will.The formal constraint of the rule of law may impose little substantive constrainton the will of the rulers. So government may practically give e ff  ect to theunconstrained will of the rulers, and yet conform to the rule of law. And a legalsystem that conforms to the rule of law may treat like cases alike only in thethin sense of treating alike those cases to which the law applies in the same way.The law may o ff  er citizens the certainty that they will be dealt with arbitrarily.So we have a puzzle about the content of the ideal: it seems to demandconstraint, and yet lack of constraint is inevitable. This puzzle is insoluble if wethink that lack of constraint on the rulers is necessarily contrary to the ideal.But we can solve the puzzle by saying that the rule of law is technically opposed 6 Cf. John Rawls: ‘The rule of law ... implies the precept that similar cases be treated similarly. Men couldnot regulate their actions by rules if this precept were not followed.’ A Theory of Justice (1971) at 237.  VOL. 19 Oxford Journal of Legal Studies 4 to arbitrary government. That does not mean that the opposition is trivial, butthat the rule of law is a technique that stands in the way of arbitrariness in ourfirst three senses. Making laws is also a technique for achieving the will of therulers (and it may be a technique for acting inconsistently). But this should notbe more puzzling than the proposition that, for example, promise-making is away of achieving your will and also a way of constraining your will. The puzzleshould evaporate if we consider that it may suit the interests of the rulers toignore a law which it has suited their interest to enact and to keep in force. 3. Vagueness and Arbitrary Government  Vagueness may seem to pose a much worse puzzle. Vagueness in the law makesarbitrary government in the first three senses unavoidable. If the law is vague,judges are sometimes called on to resolve disputes for which the law providesno resolution. 7 With respect to such disputes, the law does not constrain the willof the judge. It is impossible for a court always to treat like cases alike when thelaw is vague. And a vague law lacks certainty in some cases.These claims may sound extreme. They certainly go against the ideology of lawyers in various communities. We think that applying the law and treating likecases alike are the heart and soul of the judge’s task. But if these things cannotalways be done, then it seems that the rule of law is unattainable because of thevagueness of language. An impossible ideal seems romantic at best, and at worstabsurd.Consider the claim that, because of the vagueness of ‘within a reasonabletime’, there is no last day on which charges of murder against a particulardefendant may lawfully be heard in a community in which defendants have alegal right to trial within a reasonable time. Notice what sort of claim it is: it isa statement of law, to the e ff  ect that the law does not provide an answer to aquestion that a court may have to answer. Imagine a series of many defendants,whose cases are identical except that each successive defendant is prosecuted aday later. Imagine that the first is clearly prosecuted within a reasonable time,and that there is clearly unreasonable delay in prosecuting the last in the series(and that the court will dismiss the charges). In each case, the court has justtwo options: to allow the prosecution to proceed, or to dismiss the charges. If,for every pair of adjacent defendants in the series, each of the two is in the samelegal position, then there is no first defendant against whom the law requiresthat the charges be dismissed. If the first defendant may lawfully be prosecutedand the last defendant may not, then for some pair of adjacent defendants, thecourt must allow the prosecution to proceed against one, but dismiss the chargesagainst the other. The court cannot even solve this problem by appealing toconsiderations of justice, or of the interests of the public or of individuals. 7 I will assume that this controversial claim is right; I defend the claim in ‘Vagueness and Legal Theory’ (1997)3 Legal Theory 37.
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