Reviewed by Michael Cholbi, Department of Philosophy, California State Polytechnic University, Pomona. E-mail: mjcholbi [at] csupomona.edu.
The rule of law enjoys a nearly messianic status among seminal concepts in legal and political thought. Finding opponents of the rule of law is well nigh impossible, and its more ardent enthusiasts maintain that the rule of law is indispensable to the achievement of many cherished normative ideals, including democratic governance, the protection of human rights, and economic development. As Martin Krygier observes in his contribution to this volume (“Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?”), the rule of law is that rare example of an “international hurrah concept” (p.64).
Yet as this volume vividly illustrates, this enthusiasm for the rule of law is difficult to square with the ongoing scholarly controversies not only about the nature and evaluative underpinnings of the rule of law, but also about how the rule of law is best established in societies that lack a rule of law tradition or re-established when the rule of law has been eroded by civil war, political crises, or other disruption. While readers of this volume are not likely to conclude that the ideal of the rule of law should be discarded, they will likely acquire a more chastened sense of how to locate the rule of law’s value and of how to implement this ideal in particular societal contexts.
The volume is organized into three sections, “Getting to the concept of the rule of law,” “Maintaining or restoring the rule of law after September 11, 2001,” and “Building the rule of law after military interventions.” The sections are structured similarly, opening with a longer essay followed by two contributions that serve as commentaries on the opening essay, and concluding with a contribution that offers perspective on the section topic but does not engage as fully with the opening essay as do the middle two contributions. Section I will appeal largely to philosophers, section II to constitutional scholars, section III to global political theorists. Nine of the twelve contributions began as papers or commentaries at the American Society for Political and Legal Philosophy conference held in January 2010.
That said, the notion of the ‘rule of law’ does not provide much thematic unity to the volume. There is little if any dialogue across the topics addressed in the respective sections. Stances on the philosophical questions about the nature or value of the rule of law are largely assumed in later sections, and the contributions to section I are largely exercises in ideal theorizing, taking little cognizance of the often messy and contingent processes by which the rule of law is established or undermined.
Jeremy Waldron’s “The Rule of Law and the Importance of Procedure” opens section I, and I anticipate it will probably prove the most influential contribution in this volume. Waldron demarcates three dimensions of the rule of law: (1) the formal, made familiar by Fuller, Hart, Hayek, and Dicey, consisting of requirements such as generality, prospectivity, consistency, congruence; (2) the procedural, consisting of requirements on legal proceedings that bar individuals from suffering a legally imposed penalty or loss unless it is imposed by an impartial and independent tribunal that permits the accused to confront witnesses, present evidence on her own behalf, and the like; and (3) the substantive, a set of sociopolitical ideals enforceable via law, such as respect for [*267] private property, democratic enfranchisement, etc. Waldron contends that though the formal conception of the rule of law has tended to attract the greatest philosophical and theoretical attention, most of the grievances issued under the banner of the rule of law (e.g., mistreatment of Guantanamo detainees) are actually violations of the procedural dimensions. To regard the rule of law solely in formal terms, Waldron claims, is to treat law solely as a set of normative propositions and thereby to neglect how law comes to life in actual institutions (pp.14-15) Consequently, we ought to see the formal and the procedural conceptions as resting on a common moral basis, Waldron argues. That common moral basis is “dignitarian” because the law understands those subject to it as “active intelligences.” And though Waldron does not quite state his thesis in these terms, he seems to intend that the formal aspects of the rule of law treat subjects as active intelligences insofar as they can rationally respond to law’s demands, whereas the procedural aspects of the rule of law treat subjects as active intelligences once they are suspected of running afoul of its demands:
“… law is a mode of governing people that treats them with respect, as though they had a view or perspective of their own to present on the application of the norm 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 and respecting the personality of the entity one is dealing with. 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.” (pp.15-16, emphasis in original)
Robin West (“The limits of process”) complains that satisfying the formal and procedural criteria for the rule of law do not suffice for just outcomes: When laws are substantively unjust or applied by legal officials who fail to act in good will, the rule of law may actually serve to legitimate injustice. West’s complaint is correct, but seems misplaced as a criticism of Waldron. While some proponents of the rule of law may think its establishment is sufficient to preclude injustice, Waldron betrays no such naivete. In “A substantive conception of the rule of law: Nonarbitrary treatment and the limits of procedure,” Corey Brettschneider proposes that dignity be construed not only in terms of active participation in legal proceedings but also in terms of protections against punishment of the innocent and the provision of reasons to justify legal coercion that reflect citizens’ equal status. Waldron’s understanding of the procedural aspect of the rule of law seems able to accommodate Brettschneider’s proposal, since it includes requirements such as impartiality and weighing of evidence that function to protect the innocent from punishment as well as mandating that the state justify its acts of legal coercion on the basis of publicly articulated rationales.
Waldron’s critics thus do not much engage with his central claim about the dignitarian foundations for the formal and procedural dimensions of the rule of law. Here two questions suggest themselves. First, could Waldron’s dignitarianism also underwrite the substantive dimensions of the rule of law? He does not suggest as much, but the thought that respect for citizens’ active intelligence also lends support to democratic enfranchisement, freedom from torture and cruelty, and other dignitarian practices is provocative. Second, are Waldron’s insights into the rule of law best captured by appeal to dignity? Like the rule of law, ‘dignity’ is a popular but elusive normative concept. Waldron’s invocation of dignity has Kantian roots, but the concept also has Aristotelian and anti-hierarchical connotations. Aside from Richard Miller (“Might Still Distorts Right: Perils of the Rule of Law Project”), none of the contributors connect the rule of law to autonomy, but perhaps that well-worn notion, understood as a global property of [*268] rational agents who occupy a point of view on the world, might serve Waldron’s purposes just as well.
Section II focuses on Benjamin A. Kleinerman’s “Separation of Powers and the National Security State.” Kleinerman recommends a return to a nineteenth century understanding of American separation of powers. On this understanding, articulated mainly in the case writings of Chief Justice Marshall, the courts do not serve to define executive power. Rather, the court constrains executive power only after the fact by ruling on claims made by individuals who contend that they were wronged by executive acts that exceeded powers granted to the executive by Congress. In contrast, twentieth century jurisprudence has given courts the role of certifying and drawing the bounds of executive power, with the result that the judiciary has largely deferred to presidential claims of national security and has thus served to legalize executive discretion and shield government actions from accountability. Kleinerman sees in the earlier model a more palatable system of checks and balances, wherein the courts were freer to determine that the executive had acted extralegally. His commentators (Curtis A. Bradley, “Judicial Oversight, Justice, and Executive Discrrtion Bound by Law”; Lionel McPherson, “The Instability of ‘Executive Discretion’”; and Sotrios A. Barber and James E. Fleming, “Constitutional Theory, The Unitary Executive, and the Rule of Law”) cast some doubt on Kleinerman’s constitutional scholarship, but become largely preoccupied with the “unitary executive” theory promulgated by the Bush Administration during its ‘war on terror.’ As a result, the compelling issues about the rule of law raised by Kleinerman’s essay are neglected. Specifically, how ought the notion of discretion (executive or otherwise) be related to the rule of law? Kleinerman’s historical narrative concerning the separation of powers suggests that, at least in American jurisprudence, discretion is increasingly conferred on the executive by the courts, thus paradoxically placing discretion (which is by its nature ‘unlawful’) within the ambit of the rule of law. In contrast, it is not incoherent for discretion to be seen as extra-lawful. But this central question about discretion’s relation to the rule of law gets lost in section II.
Jane Stromseth’s sprawling “Justice On the Ground?: International Criminal Courts and Domestic Rule of Law Building in Conflict-affected Societies” opens section III. Stromseth canvasses some of the principal challenges that external parties face when trying to give the rule of law a beachhead in war-torn societies. She is especially concerned about the messages conveyed by trials for those accused of war crimes or criminal atrocities, messages she calls “demonstration effects,” and how these messages help to realize “justice on the ground” and build societal allegiance to the rule of law. In the end, Stromseth’s conclusions are modest: Outsiders need to attend more carefully to local attitudes and realities, think about how these demonstration effects will be broadcast and received, and be proactive about “capacity building.” Larry May augments Stromseth’s picture, arguing that more attention should be paid to how postconflict tribunals and legal proceedings are perceived by ‘bystanders’ who are not legal parties to the tribunals themselves. Bystanders, he argues, must see such legal proceedings as worthy of their respect in order for the rule of law to take root. Stromseth’s guarded optimism about rule of law building is not shared by Tom Ginsburg (“In Defense of Imperialism? The Rule of Law and the State-building Project”), who goes looking for successful attempts to establish the rule of law via postconflict intervention and finds them in short supply.
"we have no real examples of anything approaching the rule of law in recent postconflict intervention. Externally building democracy from scratch is not merely a daunting challenge: it has never been done. Never.” (p.231, emphasis in original)[*269]
Of course, Ginsburg’s claim allows that outsiders might be more successful in engendering the rule of law in conflict-ridden nations that have a rule of law heritage, as post-World War II Germany and Japan did. Here Krygier offers a useful reminder about the implementation of the rule of law. We should, he says, be “contextual universalists” about the rule of law, “universalist about the value of it, deeply contextual of how to get there,” and always mindful that the rule of law causally depends “on many things outside what we commonly regard as legal institutions.” (p.99)
Given the diversity of concerns addressed in this volume, it is unlikely that individual scholars will find more than a handful of the contributions worth examining. Collectively, they should not shake our confidence in the rule of law, but they should leave us thirstier to understand the rule of law, the values that underlie it, and how to ‘get to’ the rule of law in societies that lack it.
Copyright by the Author, Michael Cholbi.