A Structuralist Concept of the Rule of Law

As urgently as ever, the rule of law is a paradigm worth revisiting. As one leading theorist has said, “[r]ecent developments in Poland, Hungary, and elsewhere have raised disturbing questions about the conditions and nature of the rule of law and of threats to it.” ⁽¹⁾Elsewhere's domain is now widely deemed to include the American experience, its iconic claim of governance by the rule of law having lost its seeming immunity from grave challenge.

What do theorists reference, however, when they speak of the rule of law? It hasn’t always been clear whether they have trained their sights on formulating a robust concept or, with some distinction, on grappling with what it means to have rule by law and then importing those characteristics into an idea of the rule of law. ⁽²⁾ The somewhat diaphanous border between the two notions has been well-rehearsed, the rule of law often being described in terms of rule-by-law's formal features and arguably thin constituent elements, and sometimes alternatively in terms of thicker procedural and substantive rule-of-law conceptions. ⁽³⁾

The prevalent approach puts attributes first, assigning certain largely non-negotiable features of laws, lawmaking, official accountability, and sometimes legal systems as rule-of-law virtues, and then contemplating whether to go further, and if so how much further without diluting the distinctive value of the rule of law. ⁽⁴⁾ Seen that way, it's useful to reflect upon the extent of the overlap between qualities of the rule of law and those requisite to considering an arrangement of governance to be a legal system.

This article advances a novel view of the rule of law. ⁽⁵⁾ I think that the rule of law is an evaluative lens by virtue of which participants in the legal system and individuals in the larger community assess the legal system's functioning. A rule of law appraisal is a certain type of evaluation that, for the most part, is appropriately delimited by imperative legal procedural concerns. A disciplined focus on broadly conceived procedural concerns (1) retains the distinctive values connoted by a rule-of-law evaluation, (2) appears to align empirically with the way most people think of the rule of law, (3) implicates the material conditions that impact people's actual capabilities to participate in governance, and thereby (4) accommodates a wide ethos that tasks the rule of law with fairly heavy lifting. As such, the concept holds a structural position in the collective normative discourse, functioning as a vehicle for morally evaluating the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system's treatment of those individuals and groups.

Being vigorously procedural, the rule of law focuses not solely on static features such as the clarity and generality of legal norms, but on questions of access to justice and the legal system's openness to the ordinary citizen or other participants in the legal process. ⁽⁶⁾ Ordinary individuals seeking redress are entitled to the opportunity to advance their claims and to have their arguments treated with dignity and considered fully, without regard to their social or economic status. ⁽⁷⁾ Yet the very social and economic conditions that determine that status impact the integrity of the rule-of-law project. If the individual is not afforded open and dignified access to the legal system, then the rule of law is diminished—which means that the rule-of-law evaluation of the legal system comes out poorly.

Hence the rule-of-law project concerns not solely the quality of the legal system's outputs, but also the capabilities of the people, acting responsibly on their own behalf, to participate free of avoidable external obstacles. Those outputs include law's formal rules and procedures that condition the nature and ease of entering into law's argumentative or legislative structures. In other words, although the general rules governing equality of access to justice, and the standards that apply to everyone and that structure participation in the legal system, guide the nature and form of inputs, these rules are themselves law's outputs. This may be enough to realize a procedural version of the rule of law affording “a mode of governance that allows people a voice, a way of intervening on their own behalf in confrontations with power.” ⁽⁸⁾ Yet the well-being of the rule-of-law project demands more to the extent that asymmetries of political power and economic well-being trammel people's capabilities to take advantage of the pathways that may formally be open to them. ⁽⁹⁾

Law's procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality and on an equal basis with others, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. The issue of people's real world capabilities to obtain access is tightly-enough circumscribed to remain as a legitimate rule-of-law concern, while at the same time implicating social, political, and economic conditions. We can readily understand that the substantive requires the procedural, for how can one obtain substantive legal relief without having passed through procedural doors, ⁽¹⁰⁾ but it is also the case that the capability to pass through such doors rests on at least some important substantive guarantees or the absence of certain substantive deprivations.

It is nevertheless important to recognize that the rule of law is not a doctrine that constrains the legal system or its functioning from within. Jurists seldom use the expression, and even when they do this is to provide some level of heightened justification for a free-standing legal practice or doctrine, such as stare decisis. ⁽¹¹⁾ Courts are free to enlist extra-legal considerations when shoring up the legitimacy of a legal doctrine, ⁽¹²⁾ and use of the rule of law to do so – again, on very rare occasion – does not render the ideal a legal precept. Indeed, the judiciary's occasional reference to the rule of law is typically dicta, and little different from use of the term by any theorist or commentator who may be gazing critically at the legal system's options and aspirations. ⁽¹³⁾

So the rule of law is a concept that operates outside of the legal system, although participants in the legal community may summon it from time to time. Even then, however, the rule of law functions as a filter through which the participant gazes from the external point of view at the system's institutional actions. The filter is an evaluative one, and therefore may seem on rare occasion to be capable of helping legal officials decide things from the internal point of view. But on the very rare occasion when they reference the rule of law, those officials invoke the concept from the observer's point of view to better justify their handling of a standing, internal legal doctrine. ⁽¹⁴⁾

As a moral lens situated outside of legal doctrine and law's practical affairs, the rule of law ideal empowers the public to evaluate legal institutional action and well-being, and legal officials on occasion to assay their own decision-making. Although legal discourse is rife with moral terminology incorporated into law's data, ⁽¹⁵⁾ courts are typically hostile to explicitly moral argument. ⁽¹⁶⁾ The difference is that moral factors once subsumed into legal doctrines can be assessed in a nonmoral and backwards-looking manner to determine whether the new situation “falls under” the prior rule or precedential treatment of the similar matter. ⁽¹⁷⁾ Moral argument, on the other hand, “would effectively unsettle the very matters that the law is meant to settle.” ⁽¹⁸⁾

Courts nevertheless sometimes, albeit rarely, do invite use of moral considerations as a counterpoint to the engrained approach to legal argument based on precedent. ⁽¹⁹⁾ As unusual as express resort to moral argument is in the courtroom, however, reliance on the rule of law as a sui generis consideration is all the more disconsonant with legal practice. Nor for the most part do jurists, either by virtue of their legal education or professional experience, have any special epistemic expertise at reckoning how the rule of law ideal ought to impact the outcome of particular cases.

What follows? My positive thesis is that the rule of law concept serves as an informal normative operator by which the people morally evaluate a legal system in progress. The evaluation is largely conditioned by people's expectations arising from constitutional constraints and guarantees, and from beliefs about how the system ought to treat individuals who submit their claims or defenses, or who would do so, in an unfettered manner, if sufficiently capable. In the latter sense, the rule-of-law evaluation implicitly takes account of the social, political, and economic conditions that impact citizens’ access to procedural justice. ⁽²⁰⁾ When those conditions unfairly favor some over others, or unjustly disadvantage this group but not that one, then the rule-of-law project is impaired.

Because people use the rule of law as an informal moral operator by which they evaluate a legal system based on what they deem to be both possible and morally justified at the particular historical moment, the assessment takes account not only of the system's manner of providing access, via its rules and accommodations as outputs, but also of societal conditions that may frustrate the capabilities of individuals and groups to obtain that access, or that may impact legal institutional responses to their participation. This approach renders the rule of law both consequence and context-sensitive, rather than invariant, even as legal theory has tended to view the rule of law in fairly static terms.

Understanding the rule of law as an informal moral operator (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, and (3) helps explain why citizens come to expect law both to constrain official coercive powers and to promote their actual capabilities to partake of the legal system on an egalitarian and dignitarian footing.

Part I will show why a separation between the concept of law and that of the rule of law is analytically motivated. The divergence stems not solely from the differing conceptual nature of the two programs, but also from their distinguishable functions. While legal systems emerge to regulate and coordinate the community's affairs in a way that rests on systems of legislation, argumentation, and adjudication, ⁽²¹⁾ the rule of law aims at monitoring the law's operation and accessibility. Resolution of legal controversies in one way or the opposite way may have no impact on the system's status as a legal system, yet simultaneously engender intractable rule-of-law disagreements. This Part disagrees with arguments, however elegant, in favor of the symmetrical alliance between those concepts.

Part II then sets out the positive, structuralist theory of the rule of law. Rather than breaking the rule of law down into its essential features, which may vary in varying contexts, a structuralist approach looks at the rule of law at a more basic level, namely, by asking how the concept actually functions in a society. ⁽²²⁾ From that perspective, the rule of law is seen as a lens through which people evaluate, usually in moral terms, a legal system in progress. The rule-of-law appraisal does not lavishly assign outcomes, but mostly implicates the procedural values the community counts on the legal system to abide by. These values include not only such well-rehearsed outputs of lawmaking such as the generality, clarity, prospectivity, and stability of the laws, but also the opportunity for roughly equal access to legal remedies across individuals and groups. Theorists have failed to account for the significance of the latter requirement, which reaches beyond law's outputs that set up procedures for regulating the community's inputs. The rule-of-law project also touches upon the conditions in which individuals live and the ways in which groups are treated, to the extent that these impact upon their actual capabilities to gain procedural access to the legal system.

Part III continues that, because the rule of law aims at evaluating and regulating law's moral standing, the concept must be supple enough to accommodate the ways in which the legal system interacts with the larger society at the particular historical moment. At the same time, however, the moral dialectic characterizing rule-of-law evaluation should hamper authoritarian leaders’ propensities to point to some current affair as an excuse to depart from, or to remain apart from, the rule-of-law values that are actually realizable during the period. Conditions impacting a diversity of stakeholders—and particularly the most disadvantaged within the population—perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal remedies. Whether the legal system debilitates efforts at lessening the oppression of disfavored groups by impairing their practical ability to summon law's remedial potential, or alternatively empowers struggles toward this end, is relevant to the sort of evaluation of the legal system's functioning that constitutes a rule-of-law exercise.

In sum, viewing the rule of law as a moral evaluative vehicle, this paper's account is structural rather than attribute- or virtue-driven. Except in a broad functional sense, I do not hash out the terms or parameters of a concept of the rule of law. In the structural analysis, a mechanism for evaluating the legal system—the rule of law— has to consider both sides of the matter: not solely the legal system's superintendence over the people, but also the impact of the conditions the people encounter and under which they live on their capabilities to access the system. A structuralist approach views the rule of law as it fits and operates in a society's discourse, and thereby concerns its implications both for the legal system and for the population subject to or empowered by that legal system. Being structural, this analysis does not clutter the ontology of attributes or make unconstrained assignments for the rule of law. For this reason, the structuralist concept, even in service of an expansive ethos that implicates the conditions in which people live, shouldn’t be seen as imprudently promiscuous. ⁽²³⁾

Because theoretical discrepancies both reflect and influence what scholars, legal officials, and ordinary speakers mean by the rule of law, the term's use and meaning remain unsettled. Commentators report that “it is not entirely clear exactly what the concept of the rule of law amounts to,” ⁽²⁴⁾ “the current pervasive disagreement about the ‘Rule of Law’ has resulted in a discourse where participants are often talking past one another,” ⁽²⁵⁾ and “[t]he danger of this rampant uncertainty is that the rule of law might devolve to an empty phrase . . . .” ⁽²⁶⁾ As can be seen just from these expressions of angst, however, there is some degree of confusion about whether we want to be talking about the rule of law as a societal phenomenon, or about the rule of law as an expression we use in various ways. ⁽²⁷⁾

The phenomenal question concerns how people experience the rule of law. The semantic one is: what do we mean by the rule of law? The two questions are not the same, and may lead in slightly different directions. If we take a realist stance toward the rule of law, then we accept that it is endowed with functional properties that we can know and make true or false statements about. ⁽²⁸⁾ Because we conclude in both ordinary and theoretical discourse that there is a phenomenon, constructed in our collective consciousness, that we rightly view as constituting the rule of law, we should not be bothered, at least for purposes of this paper, by any divergence between that phenomenon's characteristics and what we mean when we use the rule of law in our discourse. Rather, if we begin with the charitable idea that most beliefs are indeed correct, and that, “if we want to understand others, we must count them right in most matters,” ⁽²⁹⁾ then it should make sense methodologically to rely on uses of the rule of law in working out a concept of the phenomenon.

What, then, might explain the “rampant uncertainty” about what the concept of the rule of law amounts to? ⁽³⁰⁾ There is little controversy about whether we, at least here in the United States, but also in the overwhelming majority of the world's countries, have law and a legal system. Yet the status of the rule of law, and the extent to which it is in effect or broken, is questioned daily. ⁽³¹⁾ Of course, in some circumstances, the partial breakdown of the legal system itself engenders outcries that “[t]here's no rule of law anymore.” ⁽³²⁾ But it seems fair to say that, at a more general level, complaints about the degradation of the rule of law mostly home in on the legal system's mistreatment of litigants, tyrants’ extra-legal mistreatment of those engaging in activities citizens believe should be legally protected, and on official nonfeasance, ineptitude, or aggravation of perceived societal ills that hamper fair access to legal remedies. These ills can include the sorts of political and even economic inequities that citizens come to believe themselves justified in expecting law to ameliorate. ⁽³³⁾

For Joseph Raz, because the law brings with it a substantial risk of the arbitrary exercise of power, “the rule of law is designed to minimize the danger created by the law itself.” ⁽³⁴⁾ Jeremy Waldron disagrees, viewing the rule of law “as an ideal designed to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular.” ⁽³⁵⁾ In contrast to Raz, Waldron sees the goal of the rule of law ideal as aimed at making government's political and administrative workings “more law-like.” ⁽³⁶⁾ Waldron's view rests on his commitment to “a richer and more discriminating notion of law,” ⁽³⁷⁾ rendering it vigorously “a distinctive mode of governance that is worth having and worth distinguishing from other modes of governance.” ⁽³⁸⁾

Alternatively, however, law should be described phenomenologically. For it is also worth having a concept of law that coincides, to some large extent, with the people's felt experience of what they take to be their society's legal system. Rule-by-law and the-rule-of-law experiences are likely to diverge in varying degrees, dependent on such factors as the nature of the legal system actually in progress, the witness's relationship to that system, ⁽³⁹⁾ and the range of principles the subject associates with the rule of law as opposed to other virtues she expects the law to possess. ⁽⁴⁰⁾

On the other hand, a thin understanding of law may tend to suggest a thin and fairly formal notion of the rule of law. This would be so if we tie the notion of the rule of law to our view about law. The concept of the rule of law will then likely tend toward the criteria famously articulated by Lon Fuller that any legal system must aspire towards. By these criteria, the legal system adopts general rules that help officials avoid merely ad hoc decision-making, publishes those rules so that participants will be capable of knowing what is expected of them, generally prohibits abusive retroactive legislation, articulates rules in a way that renders them understandable, maintains a fairly stable set of rules so as to avoid frequent and disorienting changes, sustains a practice of official conduct congruent with the rules as announced, and so forth. ⁽⁴¹⁾ It is not difficult to see why this fairly thin rule-of-law schema may constitute a rule-by-law paradigm. ⁽⁴²⁾

Fuller believed that “[a] total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract.” ⁽⁴³⁾ He thereby expressed an existential view of law's minimal institutional constraints. Notice, however, Fuller's use of the adjectival total. ⁽⁴⁴⁾ On this articulation of law's “internal morality,” ⁽⁴⁵⁾ law is capable of remaining afloat on quite a thin reed indeed.

And, indeed, ad hoc decision-making is disfavored yet occurs widely in the legal system. ⁽⁴⁶⁾ Large and complex regulatory apparatuses are a part of most modern legal systems, characterized by the delegation of legislative authority to administrative agencies, the legal regulations of which “rarely can be considered classically general.” ⁽⁴⁷⁾ Judicial decisions articulating common law rules and principles are often left “unpublished.” ⁽⁴⁸⁾ Much legislation is applied retroactively, in a variety of situations. ⁽⁴⁹⁾ Contextual settings may, on occasion, excuse even legal rules that are far from readily understandable. ⁽⁵⁰⁾ Frequent changes in the rules seem to afflict our highly politicized regulatory system, and have traditionally characterized certain areas of the law. ⁽⁵¹⁾

Jeremy Waldron handily acknowledges that governing systems that are clearly legal systems will exhibit “occasional lapses” such as those just mentioned. ⁽⁵²⁾ He denies, however, that these have much purchase on the relationship between the concept of law and that of the rule of law. Rather, the lapses may be seen either as rendering the system of governance a more marginal example of a legal system, or as calling for a more rigorous application of the rule of law ideal. ⁽⁵³⁾ Notwithstanding its elegant symmetry, this perspective begs the question concerning the potentially significant divide that will appear to exist between the concept of law and that of the rule of law.

Indeed, uncertainty about the concept of the rule of law may well flow from the sometimes grating tension between law and the rule of law that Jeremy Waldron cannot condone. The fairly commonplace characteristics noted above that tend to fall short of the Fuller criteria will engender perceptions, particularly by those disadvantaged by a ruling or policy, that the rule of law is thereby somewhat degraded, but even that subclass of individuals will overwhelmingly deem the legal norms obligatory, and the legal system to be intact. Acceptance of an enduring rule by law often coexists with skepticism about the integrity of the rule of law under more extreme circumstances, as well. ⁽⁵⁴⁾

One illustrative case of the divergence between law and the rule of law arises when courts are called upon to interpret statutes safeguarding the community from official corruption. Anti-corruption statutes both aim at protecting the democratic process and impinge on the freedom of the political maneuvering, presumably on behalf of constituents, of democratically elected officials or those who might seek to influence them. ⁽⁵⁵⁾ Waldron nicely says that “[i]t is part of our idea of law that, even if it does not regulate everything, it must be effective in governing many—if not most—of the more important interactions and conflicts in a given society.” ⁽⁵⁶⁾ Regulating and restraining official use of authority, law remains law regardless of the way it tilts in its construction of anti-corruption measures. Yet some interests will inevitably deem the resolution of a dispute arising under the statute to be morally objectionable in relation to law's procedural integrity, and thereby to impinge on the rule of law.

Consider, for example, the well-known case of McDonnell v. United States. ⁽⁵⁷⁾ The United States indicted Robert McDonnell and his wife on bribery charges stemming from their acceptance, when McDonnell was Governor of Virginia, of loans and gifts from the chief executive officer of a company that sought the Governor's help in getting Virginia's public universities to research its product. ⁽⁵⁸⁾ The controversy turned on whether McDonnell had traded an “official act” for favors received. ⁽⁵⁹⁾ The Supreme Court held that the statute would be unconstitutionally overbroad were acts such as setting up a meeting, calling another public official, or hosting an event to qualify as official acts. ⁽⁶⁰⁾ Rather, only “a formal exercise of governmental power” would violate the statute. ⁽⁶¹⁾

No one would have reasonably deemed the status of the legal system as a system of law, even in some manifest degree, to hinge upon whether the McDonnell Court favored the government's versus the defendant's interpretation of the bribery statute. Yet, as one commentator on the McDonnell opinion put it, “Democracy and the rule of law are threatened by public corruption, but they are threatened every bit as much by those who would erect a wall between people and their representatives.” ⁽⁶²⁾ The rule of law is here positioned as a moral filter by which to evaluate the legal system's handling of the democratic relationship between elected officials and their constituents. Because “moral disagreements are endemic and intractable,” ⁽⁶³⁾ it makes sense that people will clash sharply over the implications of a legal ruling for an informal moral operator such as the rule of law. ⁽⁶⁴⁾

There are other examples of legal decision-making that similarly suggest that law and the rule of law run on separate tracks. Consider the toxic tort setting in which rules settled in typical tort context safeguard the interests of one class of litigants while thereby depriving another class of its ability to obtain redress. Product manufacturers, for instance, whose toxic components caused individuals’ latent harms not manifesting until after the standing statute of limitations has run, emerge free and clear of accountability. Legislation retroactively reviving those individuals’ claims, at least for limited periods of time, gives voice to their grievances against those powerful interests, in this way promoting the rule of law. ⁽⁶⁵⁾ As Waldron says, “[t]he procedural side of the Rule of Law presents a mode of governance that allows people a voice, a way of intervening on their own behalf in confrontations with power.” ⁽⁶⁶⁾ Yet, by virtue of the same official action, industry entities and corporate officials are deprived of the benefit of a set legal rule offering them respite from the need to defend “stale” claims, ⁽⁶⁷⁾ in this way impairing the rule of law from another point of view.

We don’t use the appellation law “casually” simply by finding no meaningful impact on the system's status as a legal system regardless of the direction taken, either judicially or by legislation, in resolving various controversies. ⁽⁶⁸⁾ But groups holding conflicting interests or convictions within society are justified in discerning an impact on the rule of law, depending on the legislative or judicial outcome. The point is that the quite elegant symmetry Waldron posits —departure from the rule of law ideal as the mirror image of deterioration of the legal system ⁽⁶⁹⁾ —doesn’t hold.

Waldron is right in acknowledging that law may well not actually promote the public good, but is likely not exactly right in asserting that, nevertheless, “nothing is law unless it purports to promote the public good . . . .” ⁽⁷⁰⁾ For law often abstains from the moral or economic project of ascertaining whether outcomes will affirmatively promote the public good, and rests on taking action that is not contrary to the public good. ⁽⁷¹⁾ At times, legal decisions even acknowledge, without great qualms, privileging private over public interests. ⁽⁷²⁾

Even as the idea of an orientation to the public good highlights a similarity between law and the rule of law, it disjoins the two concepts. The rule of law would not be what it is unless it is evaluated as both purporting to promote the public good and actually doing so. Law, however, does not inexorably promote the public good, but also, as just seen, does not even necessarily purport to do so, pace Waldron. But even if law does generally purport to advance the public good, this is not its uniquely defining feature; the legal system would plainly not be alone in making this institutional claim. Although the outlaw gang cannot legitimately claim to be out for any interests but its own, legitimate institutions broadly purport, with varying degrees of justification, to promote the good of the larger society. ⁽⁷³⁾

So law's claim to promote the public good does not necessarily align it with the rule of law, but rather with ordinary institutional reality. That law does not necessarily actually promote the public good, however, and that it sometimes may not even claim to do so, cleaves it from the rule of law. The rule of law claims to, and by its nature does, promote the public good. The concept of the rule of law would otherwise be meaningless.

Like the rule of law, democracy is a political ideal that, when realized in practice, by its nature delivers a social good. At least we are usually justified in taking this as a given. ⁽⁷⁴⁾ Waldron wants to go a step further, and analogize the way we use law to the way we use the term democracy. ⁽⁷⁵⁾ Uncontroversially remarking that democracy and the rule of law fall within “a cluster of ideals constitutive of modern political morality,” ⁽⁷⁶⁾ he then extends the analogy to law itself. He most pointedly says that, as the very concept of democracy connotes “free and fair elections,” so the absence of “hearings and impartial proceedings” would disqualify a societal arrangement from being deemed a legal system. ⁽⁷⁷⁾

This analogy is problematic. Elections are free and fair, hence democratic, when neither the legislative organism nor the ruling power has the ability to predetermine the outcome. ⁽⁷⁸⁾ The outcome is determined based on the voters’ first order actions, either by way of counting their direct votes and applying them to the total, or via another sort of pre-defined and transparent electoral method. ⁽⁷⁹⁾ In legal proceedings, by contrast, officials engage in interpretive and higher order supervisory oversight, typically evaluating the validity of the inferences advanced by the litigants, and the integrity of the evidentiary mechanisms at play. Also, as Joseph Raz explains, “the fact that what is law is a matter of interpretation shows – according to some – that, since any object of interpretation allows for multiple interpretations, the law is subjective . . . .” ⁽⁸⁰⁾ And legal realists press the view that judges decide based on “how the facts of the cases strike them,” as conditioned by psychological and sociological factors rather than strictly legal rules and principles. ⁽⁸¹⁾

At the least, the notion of the impartiality of law's adjudicative mechanisms can become ambiguous, depending somewhat on whether the focus is on the particular litigants or, more generally, open-mindedness regarding policy or legal issues. In the latter case, the commitment to impartiality is, inevitably, in some tension with the deference afforded to prior judicial positions, precedents, and legislative histories. ⁽⁸²⁾

Apart from these sorts of considerations, Part II below will flesh out why, for other far more troubling reasons, law is not necessarily impartial in its relation to the average citizens. If it is a critical aspirational ideal that, in legal proceedings, both sides be treated respectfully and given an equal opportunity to confront power, ⁽⁸³⁾ then inequalities within the broader society will manifest as inequalities within the legal system. If segments of society are saddled with unequal capabilities to function and to take advantage of legal and other institutional structures, then this will necessarily impair law's ability to deliver on the aspiration that it provide a mode of governing that shows “equal concern for the fate of every person over whom it claims dominion.” ⁽⁸⁴⁾

In any event, analogizing law and democracy appears to be a further instance of begging the question in favor of law. As suggested, ⁽⁸⁵⁾ it has been taken as a given that democracy “is one of our most prominent political ideals.” ⁽⁸⁶⁾ But it remains to be shown that law, like the rule of law, carries an equivalent stature. I believe that the better analogy for law would be to government. Government is a far more expansive term that allows for its many variants.

As with law, an arrangement requires certain features to qualify as government. Scholars in that area would identify the exercise of certain functions, the provision of certain services, and a capability to stand for the whole in diplomatic encounters with outside entities. However, even as most people would agree that it is better to have a government than not, it is fairly debated whether its “administration of populations” delivers a net public good in particular circumstances. ⁽⁸⁷⁾ That debate doesn’t impinge, however, on the presupposition that the system qualifies as a government. Moreover, in contrast to the democratic ideal, “on the plane of governmentality, populations do not carry the ethical significance of citizenship.” ⁽⁸⁸⁾

Finally, we have noted the disagreement between Raz and Waldron concerning the function of the rule of law. ⁽⁸⁹⁾ Raz views the rule of law as a check on the legal enterprise itself, ⁽⁹⁰⁾ whereas Waldron struggles to uphold an august view of law, and considers the rule of law a check on abuses in the exercise of political power. ⁽⁹¹⁾ Neither view, however, would remotely begin to describe law's function. Law's distinctive processes, such as its hearings and formal proceedings, as elucidated by Jeremy Waldron, ⁽⁹²⁾ mostly aim at goals quite different from constraining official exercises of political power, although this may occur in particular cases. Distinguishing the functions of law and the rule of law both sets the concepts apart and facilitates a moral concept of the rule of law that is compatible with a positivist concept of law itself.

One thinker critically respected by Waldron for his functional view of law was the Bolshevik legal philosopher Evgeny Pashukanis. ⁽⁹³⁾ As Waldron puts it, Pashukanis “believed that law was a particular and distinctive form of social ordering, organized around the coordination and empowerment of private, independent agents.” ⁽⁹⁴⁾ Consistently, Pashukanis asserted that “[a] basic prerequisite for legal regulation is therefore the conflict of private interests.” ⁽⁹⁵⁾ Regardless of how far one agrees with the overall theory, the view does seem to capture the conceptual nature of the emergence of a legal system.

As the pre-legal social group engages in private transactions, broadly defined to include accidental occurrences—promising, injuring, commanding, planning and so forth—these give rise to entitlements, commitments, obligations and other deontic facts, including deontic emotions such as blame and resentment. ⁽⁹⁶⁾ Questions inevitably arise about how to organize, coordinate and prioritize those obligations, resentments, powers, and practiced means to intended ends. Particular groups, based on some circumstance such as brute physical might, talent, risk-taking, or perhaps merely luck, or some combination of those, will be more powerful than others and form dominant cliques or even classes. ⁽⁹⁷⁾

A legal system emerges, via collectively recognized regulative and constitutive rules, and local and regional institutions aimed at balancing competing interests and settling disputes peacefully. The system engenders strata of legal and governmental officials, empowers individuals in the community and affords them guidance and constraints in the conduct of their transactions, but also ensures and reifies the privileges and exploitative capabilities of the dominant group. ⁽⁹⁸⁾ The next section argues that the rule of law concomitantly forms in the community's collective consciousness as an informal moral operator aimed at tempering the legal system's functioning in relation to the larger society's conditions and normative possibilities.

Commitment to the rule-of-law project supports an endorsement of rule by law, ⁽⁹⁹⁾ which might also be framed as the rule of laws. At the same time, however, believing in the project's merit, and engaging in its practice of morally evaluating legal systems, do not require endorsing the rule of a surfeit of laws. ⁽¹⁰⁰⁾ Proliferation of laws can ironically be in some tension with rule-of-law constraints on the coercive state power that backs those laws. These are considerations that historically launched the rule-of-law project.

Let's begin with Plato, not to privilege the Western canon but to trace the concept's lineage in modern popular discourse as well as theoretical writing. Plato did not expressly refer to “the rule of law,” and he counted adherence to law as the “second-best method” of organizing a government. ⁽¹⁰¹⁾ With idealized expertise, the king would be able to rule without law, as each situation demanded. If so, law's stable or fixed nature would render it something akin to “some self-willed and ignorant person, who allows no one to do anything contrary to what he orders, nor to ask any questions about it . . . .” ⁽¹⁰²⁾ Waldron has taken this language to mean that, for Plato, one would use legal rules “only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of expertise in political life.” ⁽¹⁰³⁾

Plato's theological cosmology envisioned an era, the Age of Cronos, in which the universe rotated in an opposite direction, such that divine spirits governed all living things, and human beings experienced no private conflict. ⁽¹⁰⁴⁾ Responding to the paradox that one cannot search either for what one knows—because this is already known—or for what one does not know—because one would not know what to search for—Socrates says in Plato's Meno that the soul is immortal, has been born often and has seen everything before, and is left with the task of “recollect[ing] the things it knew before, both about virtue and other things.” ⁽¹⁰⁵⁾

Statesman is not as unforgiving about law as Professor Waldron's parenthetical might suggest. The work's lead pedagogic character, the Stranger or Visitor, asks why it is “ever necessary to make laws, given that law is not something completely correct.” ⁽¹⁰⁶⁾ So, after all, in this world, in the Age of Zeus, laws are necessary and corrective, even if not “completely” correct. Importantly, in the Republic, Plato explains that the painter is none the worse if, having painted a portrait of the finest human being, “he could not prove that such a man could come into being.” ⁽¹⁰⁷⁾ Neither the philosopher king nor the best possible constitution may ever be realized in practice. ⁽¹⁰⁸⁾

And, indeed, Plato's longest work was Laws, consisting of twelve books revolving around the idea that the lawgiver organizes “the entire life of the state.” ⁽¹⁰⁹⁾ Although many of Plato's ideas would, of course, be anathema to a modern rule-of-law devotee, he did, in this late work, conceive of the formulation of a legal code comprised of “all these regulations [that] may be welded into a rational whole, demonstrably inspired by considerations of justice and self-restraint, not of wealth and ambition.” ⁽¹¹⁰⁾ This language wouldn’t be substantially out of line if used to express a modern view of the rule of law.

Plato even articulated a basic norm instructing his view of governance, namely, that the rulers ought to “preserve” the city and make it “better than it was so far as they can . . .” ⁽¹¹¹⁾ Although Plato's rarified view of the expertise required to govern tilted his ranked preferences in order from monarchy, to a more diffuse aristocracy or oligarchy, to his disfavored democracy, ⁽¹¹²⁾ he viewed law's function as supporting this superimposed directive. His very articulation in Statesman of an overriding norm sets a context for evaluating the legal system, for discretely examining the system's normativity apart from assaying the system's discrete norms. ⁽¹¹³⁾

Modern theorists need not be distracted by Plato's period recommendations to appreciate his evaluative project. Morality is a subspace within the broader normative expanse, and Plato introduced not solely the idea of “good written rules, which we call laws,” ⁽¹¹⁴⁾ but of the existence of a moral standard for evaluating the larger legal system. He even articulated an orderly decision process, compatible with modern notions of the rule of law, for developing the laws, namely, “on the basis of much experiment, with some advisors or other having given advice on each subject in an attractive way, and having persuaded the majority to pass them.” ⁽¹¹⁵⁾

I next defend the position that, following Plato, the concept of the rule of law has tended to function as a moral operator for evaluating the legal system in progress, at the particular historical moment, and in the context of the conditions of the larger society. As a moral operator, the rule of law is fated to generate robust disagreement. ⁽¹¹⁶⁾ Issues will include which attributes of the legal system in progress are beneficial or detrimental to sustaining governance's moral well-being, and whether the manner in which legal institutional actions are taken at the particular historic moment diminish or bolster the rule of law. The underlying question is whether law's way of proceeding—from the point of view of procedures followed and access for all those affected—weakens or improves the moral situation.

Understandably, however, theorists have sought to more concretely define attributes critical to the rule of law. They have not conceptualized the rule of law in structuralist terms, being the structural role the idea of the rule of law plays in a society's discourse, as an informal moral operator. Reifying the attributes, many academics have converged around the Fuller criteria, ⁽¹¹⁷⁾ or similar desiderata, rigidly assigning such qualities such as generality, publicity, clarity, prospectivity, and stability as the sine qua non for determining whether a legal system realizes the rule of law ideal. ⁽¹¹⁸⁾ By the moral operational view, however, although these criteria certainly provide markers for a contemporary rule-of-law evaluation, neither they nor any other reified attributes in themselves fixedly constitute the rule of law.

Aristotle linked the evaluation of legal systems to that of their host governments, a defective government engendering bad or unjust laws. ⁽¹¹⁹⁾ To ensure good legal decision-making, the norms governing legal practices would have to respond to governmental structures. Because, for instance, magistrates in the Lacedaemonian system were selected “from the whole people,” including from those who, “being badly off, are open to bribes,” their discretion ought to be held in check such that they decide not “merely on their own judgement, but according to written rules and to the laws.” ⁽¹²⁰⁾ The deontic operator ought indicates a moral constraint on the magistrates’ exercise of discretion, ⁽¹²¹⁾ and Aristotle's prescription thereby provides a moral ground for a rule-of-law evaluation of Spartan magisterial practice. ⁽¹²²⁾

For Aristotle, law was general, systematic, legislated and typically written. He acknowledged the thinking “by some” that a sovereign's arbitrary rule, characterizing absolute monarchy, was “quite contrary to nature.” ⁽¹²³⁾ And he took note of the view that the rule of law, here meaning rule by law, “is preferable to that of any individual.” ⁽¹²⁴⁾ Aristotle explained, however, that in the broader functioning of the legal system, individuals would have to decide issues arising in specific cases, which involved “matters of detail” that “cannot be included in legislation.” ⁽¹²⁵⁾ This was acceptable, and could even improve the moral situation over that attained by rote adherence to written laws, precisely because the law would train officials “for this express purpose.” ⁽¹²⁶⁾ For controversies left undecided by general legislation, individuals are appointed to determine those matters “to the best of their judgment,” ideally mimicking “God and Reason alone,” so as to avoid as much as possible emotional bias in the form of desire, “spite and partiality.” ⁽¹²⁷⁾

Aristotle thereby set up parameters for morally evaluating the legal system's functioning. In this exercise, citizens would evaluate whether officials were judging “truly” by applying reason, as they ought, rather than spite and partiality. ⁽¹²⁸⁾ And he continues, in the following passage, to set down a decision procedure and decision-making attitude, markers by which to morally appraise the practice:

Hence it is evident that in seeking for justice men seek for the mean, for the law is the mean. Again, customary laws have more weight, and relate to more important matters, than written laws, and a man may be a safer ruler than the written law, but not safer than the customary law. ⁽¹²⁹⁾

In a right-functioning legal system, those well trained in the law have been “stimulate[d] to excellence” and should, by advancing good laws that take good public care, urge the populace on toward a similar noble character. ⁽¹³⁰⁾ The Aristotelian analogue to the rule of law required that officials be capable of studying customary as well as written laws, and of judging “what is good and bad and what enactments suit what circumstances.” ⁽¹³¹⁾ When needed, although only with great caution, officials should change the law, including by legislating abandonment of customary law that no longer suits present morality and sensibilities. ⁽¹³²⁾

Although some of the specific attributes Aristotle assigned to law, in his complex and sometimes ambiguous writing on the subject, would not accord with modern notions of the rule of law, and although many would do so, the corpus aristotelicum engendered a moral evaluative operation by which to assess a legal system. While rooted in order and stability, the Aristotelian system was not static but in motion, guided by legislators and officials possessed of agency and a fine-tuned capability, and obligation, to discriminate between the good and the bad in existing and contemplated law.

It may seem that the moral operational concept of the rule of law is an aspect of natural law legal theory, which in its strong sense maintains that there is a necessary connection between morality and the existence and validity of laws, but in its weak form appraises the moral force of laws rather than their very existence or validity. ⁽¹³³⁾ Natural law legal thinking, however, leaves the connection between morality and the concept of the rule of law both transparently direct and misleadingly opaque. The former is so, because evaluating the legal system as a whole from the point of view of its being both obligated to improve the moral situation and generative of genuine moral obligation aligns with natural law legal theoretical motivations. ⁽¹³⁴⁾

And the latter is so, because appraising laws from the moral perspective doesn’t pin down one's concept of the rule of law. A law or constitutional interpretation protecting the right to abortion, for instance, might seem to some natural law advocates as invalid or leastwise defective on moral grounds, but so, for other natural law legal thinkers, might a law or interpretation restricting such a right. ⁽¹³⁵⁾ To the extent, however, that the right-to-choose/right-to-life debate does not implicate the aims and concerns underlying the rule-of-law ideal—for example, values concerning lawmaking procedures, the formal characteristics of laws, access to the legal system, and so forth—this debate will not have any discernable rule-of-law impacts.

Although Aristotle is routinely cited as advancing a natural law legal theory, some have seen this claim as somewhat arguable. ⁽¹³⁶⁾ The same cannot so readily be said for Samuel Rutherford, whose use of the term rule of law was likely the first in English, albeit without the definite article, and expressive of a critically important aspect of the concept. In his 1644 treatise Lex, Rex, Rutherford instructed that “conscientia humani generis, the natural conscience of all men, to which the oppressed people may appeal unto when the king exponeth a law unjustly, . . . is the last rule on earth for exponing of laws.” ⁽¹³⁷⁾ The work scathingly, and at great bodily risk, addressed then Archbishop of Canterbury John Maxwell's Sacro-Sancta Regum Majestas, which defended the divine right theory and the royal prerogative of kings.

Rutherford's title, Lex, Rex, places the law before the king, in contravention of Maxwell's royal absolutism and the rex est lex loquens (the king is the law speaking) doctrine. So Britain and Scotland burned and banned the book, and in 1688 charged Rutherford with high treason, although he died before trial. ⁽¹³⁸⁾ In Lex, Rex, Rutherford responds to forty-four questions, the twenty-sixth being “whether the king be above the law or no.” ⁽¹³⁹⁾ Explaining that emperors began as “but princes of the commonwealth,” Rutherford announces the rule of law, not of man ideal, saying that “the prince remaineth, even being a prince, a social creature, a man as well as a king; one who must buy, sell, promise, contract, dispose: therefore, he is not regula regulans [the governing rule], but under rule of law.” ⁽¹⁴⁰⁾

Yet this rule of law, not of man precept requires, in the first instance, a moral evaluation of the promulgation and administration of the laws. For, like Nero, the king will “seek[] to make new laws for himself,” in furtherance of machinations “seeking to destroy” structures of governance and the people. ⁽¹⁴¹⁾ So the laws, their source and content, will have to be scrutinized. That evaluation is necessary to ensure that the law conforms to the “one fundamental rule, salus populi,” such that the laws actually do conform to “the law of nature, and the law of nations,” and not be made “so obscure, as an ordinary wit cannot see their connexion with fundamental truths of policy, and the safety of the people.” ⁽¹⁴²⁾ Whether or not embedded within natural law legal presuppositions, a distinct moral operation occurs by which the community evaluates its legal system.

We leap a few centuries ahead to the work of Albert Venn Dicey. Joseph Raz has referenced “Dicey's unfortunate doctrine,” ⁽¹⁴³⁾ which in 1885 introduced readers to the modern concept of the rule of law, however limited by contemporary lights. ⁽¹⁴⁴⁾ Dicey offered three central “though kindred” principles, ⁽¹⁴⁵⁾ which he attributed to the English system: first, that no one should be punished except for a distinct violation as established in the ordinary courts and according to established, ordinary procedures ⁽¹⁴⁶⁾ ; second, that no one is above the law, such that every person, “whatever be his rank or condition,” is subject to the ordinary law as administered in the ordinary courts ⁽¹⁴⁷⁾ ; and third, that general constitutional principles evolve over time as a result of continual judicial decision-making in individual cases adjudicating private rights. ⁽¹⁴⁸⁾

Dicey's concept of the rule of law thereby announced a set of standards by which commentators could critically assess the legal system's workings. Not fully recognizing that the normative and moral evaluation of the legal system was itself constitutive of the rule of law, Dicey continues by naively declaring, for example, that officials, like all others, are subject to nothing other than “the ordinary law of the land administered by the ordinary Law Courts,” ⁽¹⁴⁹⁾ and, most vociferously, that the rule of law cannot accommodate administrative law or administrative tribunals, which involve special rather than ordinary bureaus. ⁽¹⁵⁰⁾

Yet counting against a reified view of the rule of law for both Dicey and Raz is their recognition that, at least to some significant extent, the ideal follows from, rather than defines, certain other conditions. For his part, Joseph Raz allows that many rule-of-law principles “depend for their validity or importance on the particular circumstances of different societies.” ⁽¹⁵¹⁾ Reasonably understood, the intuition is that the rule of law is a function from societal conditions to constraints on the legal system that are justified by some sort of moral evaluative exercise.

Dicey's view was stiffer but somewhat analogous in this particular regard. He insisted that the rule of law expresses the idea that constitutional rules “are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.” ⁽¹⁵²⁾ The rule of law thereby manifested in the evolutionary development of rights to freedom, and of various official duties. ⁽¹⁵³⁾ The courts afford redress for infringements of those rights, and help to define them over time. ⁽¹⁵⁴⁾ Because habeas corpus statutes were illustrative of a vehicle by which “the acknowledged right to personal freedom may be enforced,” ⁽¹⁵⁵⁾ it followed that law must provide judicial compensatory relief for harms caused by the suspension of habeas corpus, which “in truth arm the executive with arbitrary powers.” ⁽¹⁵⁶⁾ In this regard, Dicey did summon some embryonic criteria for a rule-of-law evaluation of the regime's reaction to perceived crises, including whether an extraordinary situation immediately necessitated the suspension of habeas corpus to remedy what had become a “dangerous limitation on the authority of the executive government,” ⁽¹⁵⁷⁾ and whether the executive's discretionary exercise was “for the public good.” ⁽¹⁵⁸⁾ If so, this would warrant the (all but inevitable) follow-up Act of Indemnity by the sovereign parliament shielding state agents from prosecution. ⁽¹⁵⁹⁾

As just suggested, following Blackstone and Sir Edward Coke, Dicey also announced a doctrine of Parliament's absolutely sovereignty. ⁽¹⁶⁰⁾ He went so far as to opine that “[n]o one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence.” ⁽¹⁶¹⁾ The theorist attempted, however, to reconcile his seemingly disparate views of legislative sovereignty and the law's supremacy. He argued that sovereign power was tempered both by narrow judicial oversight and interpretation of legislative acts, and by Parliament's combined authority residing in the Crown and the bicameral House of Lords and House of Commons system. ⁽¹⁶²⁾

Dicey's views on sovereignty are somewhat of a digression, except with regard to his acknowledgment of the “actual limitations” on parliamentary power, ⁽¹⁶³⁾ which will reconnect to this paper's concept of the rule of law. Dicey objected that, in his Jurisprudence, John Austin had conflated the separate notions of legal and political sovereignty, incorrectly ascribing the former power to the Commons as “trustees” for the electorate, rather than to the House of Commons itself. ⁽¹⁶⁴⁾ Legal sovereignty, to the contrary, was unhampered by any such trustee relationship for Dicey. But politically, or in a de facto sense, the sovereign's actual power was constrained, externally, by the capability of its subjects to disobey or resist, and internally by historical circumstances, including, even for the despot, “the moral feelings of the time and the society to which he belongs.” ⁽¹⁶⁵⁾

Dicey's internal, political constraint on sovereign power approaches the nature of the rule of law as moral operator. Though similarly an evaluative mechanism rooted in the particular historical period, the rule of law is a more interactive concept, and addresses the procedural integrity of the legal system in the context of conditions existing in the larger society. The rule of law concept is also far more dynamic than is Dicey's internal constraint on sovereignty, because it is capable of generating the sort of widespread disagreement characteristic of fundamental moral questions. ⁽¹⁶⁶⁾ For this reason, too, the idea of the rule of law is vulnerable to being hijacked and manipulated by interests that may be opposed to the public good. ⁽¹⁶⁷⁾ The rule of law, however, is a subtle concept, and the moral vigilance it embodies is presumed to be self aware and analytically astute enough to improve the moral situation.

Early development of the values embodied in the rule of law, from Plato and Aristotle, then Rutherford and Dicey, and on to contemporary commentators, points to the concept's moral evaluative operation. Rather than continuing seriatim from theorist to theorist, it should now be more useful briefly to probe the concept itself a bit more deeply. Unlike other writings, this article is not concerned with designating rule-of-law attributes—which can misleadingly seem fixed and unresponsive to historical periods and “the particular circumstances of different societies” ⁽¹⁶⁸⁾ —but rather with the concept as a structural, evaluative vehicle for improving the moral situation at the intersection of legal systems and their subjects. ⁽¹⁶⁹⁾

If we are willing to view the rule of law as a moral operator, then this concept should analogize to other sorts of operators. ⁽¹⁷⁰⁾ Logical operators, for instance, are well known. A simple one is the conjunction operator and, notated as the & sign. The conjunction relationship is not, however, determined by use of &, but rather by the context in which terms or items arise. For instance, the sentence “Rutherford was a courageous theorist” is plausibly seen as the conjunction “Rutherford was courageous” and “Rutherford was a theorist.” At the same time, merely using the conjunctive form does not guarantee a conjunction relationship. If we were to say, for example, “Plato and Aristotle were contemporaries,” and would not function as a conjunction operator. ⁽¹⁷¹⁾ Finally, the status of the logical operator depends on each element, such that, for example, the value of the conjunction A & B depends on both the value of A and the value of B.

Although use of the term the rule of law by theorists and in the larger community will tend to reflect the concept's nature and significance at the historical moment, the term's use is not necessarily always illustrative. ⁽¹⁷²⁾ Contextual analysis indicates whether the term is being applied toward a moral evaluation of the exercise of official power in line with legal procedural values. But also, the concept of the rule of law stands for a multifaceted relationship between societal conditions and the legal system's manner of governance from a mostly procedural point of view. Adjustments made at any relevant intercept in that relationship can alter the way in which citizens or theorists appropriately apply the rule of law. The end of the matter is the moral situation attained by law in its procedural operation and accessibility, in relation to the larger society.

Theorists, practitioners, and social activists writing about the rule of law have consistently fixed their gazes on its constitutive core principles. These range from being the characteristics of laws, lawmaking, and the legal system that are minimally necessary for ascribing rule by law to the society, to those that are more expansive and conducive toward securing substantive rights and delivering some meaningful form of justice. ⁽¹⁷³⁾ Even as they remain fairly unified in their quest to demarcate rule-of-law attributes, commentators divide over which attributes to assign, and how to conceptualize the construct.

I believe that the attribute-driven project is problematic, least of all because the diverse and sometimes undisciplined interpretations of rule-of-law values generate anxiety that the rule of law “might devolve to an empty phrase . . . .” ⁽¹⁷⁴⁾ This paper alternatively sees the rule of law as a structural, evaluative component of collective social consciousness, one that is relativized in relation to societal conditions. Only a very strained account will assess the status of the rule of law at any historical moment by looking solely at lawmaking formalities and the judicial procedural rules by which participants in the legal system are abiding.

Jeremy Waldron's project nimbly loosens up the rule of law analysis, albeit by melding the concept of law and that of the rule of law. Claiming some distance from the received approach to the rule of law, he sees courts as an essential component of an arrangement that can rightly be called a legal system. ⁽¹⁷⁵⁾ Waldron criticizes Hart for his limited focus on the courts’ “output function,” their delivery of “authoritative determinations of the question whether . . . a primary rule has been broken.” ⁽¹⁷⁶⁾ He also confronts Raz, who views the courts as the primary norm-applying organ that decides individual cases, for his similar concentration on the judicial system's outputs. ⁽¹⁷⁷⁾ But after noting Raz's comments elsewhere about the need for impartiality and fair hearings as “‘obviously essential for the correct application of the law and thus . . . to its ability to guide action,’” ⁽¹⁷⁸⁾ Waldron unhappily but correctly locates Raz's normative procedural point as “relevant to law only at an evaluative level, rather than at the conceptual level.” ⁽¹⁷⁹⁾

It is easier to establish, however, that morally evaluative claims fall within the concept of the rule of law than within the concept of law itself. Closely linking the concepts of law and the rule of law will appear problematic to those who resist ascribing rule-of-law virtues to the very idea of a legal system. Fair and impartial hearings—markers by which to evaluate the system's moral standing—are more readily seen as integral to the rule of law than as ingredients required to qualify an arrangement as a legal system. Indeed, pronouncements urging that “an independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; [and] equality of all before the law” be counted as “essential characteristics of the Rule of Law” seem to presuppose, as the underlying problem, that these are not otherwise essential characteristics of law per se.⁽¹⁸⁰⁾

So for now let's bypass Waldron's angst about the thinner concept of law, and take the attributes he deems essential to a legal system as ingredients in the rule of law. ⁽¹⁸¹⁾ Intricately formal argument structures do seem to fairly uniquely characterize legal systems, ⁽¹⁸²⁾ but these can serve bad purposes as well as good. It is when these structures are made available to community members with equal access and fair treatment upon entry that they promise to improve the moral situation. Waldron's The Concept and the Rule of Law is remarkable for its language turning from an exclusive focus on the legal system's outputs to the ways in which the system accommodates communities’ and individual litigants’ participation. Legal theorists have paid insufficient attention to the conditions allowing for the inputs, which may seem a digression from the characteristics of lawmaking and legal decision-making familiar to law students and practitioners.

Waldron marshals procedural features necessary to the respectful treatment of litigants and others engaging in the legal system. Litigants are able to submit their arguments along with supporting evidence, and to have their presentations supervised by an impartial official who keeps things orderly and relevant to the issues. The parties have a right of reply and rebuttal toward convincing the adjudicator, and the tribunal is expected to consider all of the proffers and to give reasons for its ruling. ⁽¹⁸³⁾ In addition to the qualities Waldron highlights, legal institutions also invite the public in to the courtroom to accomplish non-adversarial goals defined by power-conferring laws. ⁽¹⁸⁴⁾ Citizens depend on the law to effect a name change, get a will administered, a divorce decreed, a mortgage registered, and so on, all of which tends toward respect for the dignity of the individuals.

However, even this richer view of the rule of law, which is conscientious about inputs and not solely the legal system's outputs, remains less than adequate. Although characteristics such as those just discussed guide and govern inputs into the legal system, they are themselves the system's outputs, in the form of legal and procedural rules or norms developed and adhered to by legal officials. ⁽¹⁸⁵⁾ They apply to all participants equally and, like tort law principles, are blind to distinctions between eggshell and fortified craniums. In tort law, however, the eggshell skull rule is a substantive principle that aims at safeguarding the rights of weaker litigants who may have been more vulnerable than others to the harm inflicted. ⁽¹⁸⁶⁾ When the rigors of the legal system's own mazes, preconceptions, abstractions, and presumptions are at issue, along with “the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread,” ⁽¹⁸⁷⁾ rule-of-law virtues do not tend to look the same to the socially, economically, and politically eggshell skulled as they do to the powerful.

Theorists view law's public character, a rule-of-law principle, as providing everyone with the opportunity, at the least, for equal access to legal norms and legal data. ⁽¹⁸⁸⁾ But the more powerful persons and entities have continual access and updates on laws, regulations, and legal developments that impact their planning and inform their expectations, whereas the less powerful routinely wing it and encounter legal information only at times of special need or personal crisis. Legal data is privatized or at least commodified, available to the few on prohibitively costly or otherwise restricted online platforms such as Lexis, Westlaw, and Pacer. Legal services are also often prohibitively costly, and attorneys may be sparsely available to serve the general public, notwithstanding codified pro bono requirements. ⁽¹⁸⁹⁾ All of this engenders a good amount of pro se practice, but procedural rules that condition participants’ inputs frequently trip up not only lay litigants, but licensed counsel as well. ⁽¹⁹⁰⁾

Disadvantages in the legal system arise not solely from lesser access to resources and expertise, or less sophisticated legal capabilities, but rather from biases held and discrimination practiced by the privileged and more powerful against groups singled out for disfavored treatment. The point is not that an overly broad concept of the rule of law ought to apply, so as to promiscuously target all manner of societal inequities. ⁽¹⁹¹⁾ The point is rather that the principles most people ascribe to the rule of law depend for their vitality not solely on their inherent, ex ante virtues but on their actual ex post effects. ⁽¹⁹²⁾ Critical is whether law's impacts liberate the community to participate robustly in the legal system, or reinforce significant limitations on people's actual capabilities to do so by masking inequalities and oppressions that reinforce the status quo. ⁽¹⁹³⁾

Under a quite thin, formalist version of the rule of law, there will still be two sides of the coin. We have just noted some problems even with the formal ideal that laws be made publicly available. This gives the public the opportunity to know, understand, and follow the legal rules, and to plan accordingly. But if one group is significantly better able to know, follow, and plan, or if one is significantly hampered in doing so, is it inconceivable that this might impact, or cause fissures in, the moral, rule-of-law evaluation of the legal system? ⁽¹⁹⁴⁾ And isn’t it conceivable that formal principles such as publicity, generality, stability, and prospectivity work injustice in certain cases, if inequality is the default? ⁽¹⁹⁵⁾ Hence, “it is widely accepted that moral principles are defeasible when it comes to determining the overall moral status of an action ” ⁽¹⁹⁶⁾

Waldron would harness the rule of law's formal and procedural virtues toward a conceptual slide “in a particular substantive direction.” ⁽¹⁹⁷⁾ By this elegant move, for instance, the rule-of-law requirement of generality might point us in the direction of the just treatment alike of like cases, or the prospectivity requirement move the ball toward honoring human agency and interests in planning. ⁽¹⁹⁸⁾ What Waldron is seeking to avoid is a bloated concept of the rule of law by which everyone competes to promote their own favorite value or political ideal. ⁽¹⁹⁹⁾

Certainly, the rule of law cannot cater to every expectation, even if the expectation has been subjectively engendered by the law's own pronouncements. But Waldron's theory is too parsimonious in its derivative approach to the substantive dimension to the rule of law. Few people—whether lay individuals, legal practitioners, or theorists—would shrink from alleging deterioration of the rule of law were legal or government officials to declare that, while preserving all of the people's formal and procedural rights, they no longer intended to follow the constitution, ⁽²⁰⁰⁾ or did not any longer deem themselves bound by substantive constitutional guarantees. ⁽²⁰¹⁾ Nor would such concerns be insufficiently constrained in relation to the concept of the rule of law. Rights to freedom of speech or assembly, for instance, or adherence to the constitutionally mandated separation of powers, ultimately implicate the capability of the people to make their voices heard within the legal system, either directly or by means of representation in the lawmaking process.

At the same time, when appraising the legal system's moral standing, the community weighs whether officials are adhering to or frustrating core expectations about the rule of law that appear justified by constitutional provisions, law's previous outputs, or official pronouncements. The moral pressure citizens place on law reinforces legal officials’ prudential, if not moral, considerations that help rein in their exercises of discretion or potential abuses of authority. Questions are not solely how far the court should go or how limited it should be, but also how far it can go or how constrained it must be.

Respect for mainly procedural and access-related expectations stemming from law's own publicly-appraised conduct or constitutional interpretations constrains the rush to include just any favored value in the rule-of-law formulation. ⁽²⁰²⁾ Ultimately, however, legal and political authority pays more attention to some appraisers than to others. As Stephen Holmes has put it: such authority “has no incentive to treat all groups equally, because it needs the cooperation of some groups more than the cooperation of others. In particular, it needs the cooperation of well-organized groups with assets that can be easily mobilized for war and other state purposes.” ⁽²⁰³⁾

Yet legal officials’ prudential concerns should respond not only to “well-organized groups” and the pressures and assets they muster, but also to “the moral feelings of the time,” ⁽²⁰⁴⁾ if cogently expressed in some particular direction. ⁽²⁰⁵⁾ These expressions will likely be broken across constituent or party lines, and the directions far from univocal. Nevertheless, the moral dialectic characterizing a healthy rule-of-law evaluation, if not itself quashed, should constrain an authoritarian summoning of historical circumstances as an excuse to depart from, or to remain apart from, the rule-of-law values that are actually realizable during the period. And for better or for worse, public morality concerning the rule of law will often likely circle back to the legal community, finding its sources and influences about the legal system's standing in the things lawyers have to say about it all. ⁽²⁰⁶⁾

Rousseau concludes his Notes to his Second Discourse by saying, “[t]he magistrate is the judge only of what is strictly law; the people are the true judge of morals ” ⁽²⁰⁷⁾ Although he idealizes the “people” in advancing his vision of equality, Rousseau's dichotomy between legal and moral judging sits well with the distinction set down in this paper between the law and the rule of law. The legal system regulates a rich and broadly-defined array of transactions, its formal structures allowing people to argue their claims and adjudicators and legislators to determine the law. The people evaluate the law and the legal system in various ways, and when they express moral concern over such matters as the system's formal and procedural integrity—including not only such issues as the generality, clarity, prospectivity, and stability of the laws, but also the system's equal accessibility to, and fair and dignified treatment of, individuals and groups—then they are participating in the rule-of-law project.

The difference, however, between traditional concepts of the rule of law and the structuralist concept presented in this paper is that the latter situates the legal system in the context of the larger society, and implicates the actual capabilities of the people as an integral aspect of the rule-of-law project. The structuralist approach doesn’t abandon the “ought implies can” principle, but rather extends the domain of what is actually possible beyond the narrow confines of existing legal procedures. Conditions in society count as well and this renders the rule of law doctrine a potentially subversive evaluative vehicle, ⁽²⁰⁸⁾ however much the rule of law slogan can be manipulated and perverted to affirm the status quo. ⁽²⁰⁹⁾ Pashukanis identified some of the internal tension when he said that “the logic of the relations of dominance and subservience can only be partially accommodated within the system of juridical concepts.” ⁽²¹⁰⁾