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Martin Krygier --- "Inside the Rule of Law" [2014] UNSWLRS 4

Last Updated: 24 April 2014

Inside the rule of law[ ]

Martin Krygier

Citation

This paper is to be published in III(1) Rivista di Filosofia del Diritto (2014). This paper may also be referenced as [2014] UNSWLRS 04.

Abstract

Palombella (2012) has offered us not merely a strong case for one distinctive conception of the rule of law, but also a sustained demonstration of how to think well about these matters. The substance of his account is this article’s main subject, but his methodological example could usefully be emulated even by those who might draw different substantive conclusions from such consideration. The article starts with substance (§ 1), his “institutional idea concerning the law” and moves to his method (§ 2), one that combines attention to the philosophical underpinnings of the rule of law, its specific historical origins, and possibilities for its elaboration and application in contexts quite different from those where it originated. It then asks three questions: one about the status of non-arbitrariness in Palombella’s conception (§ 3), a second about the point or telos of the rule of law (§ 4), and a third about its social dimensions (§ 5).

Keywords

Rule of law, Non-arbitrariness, Institutional ideal, Power, Social dimensions.

Introduction

Gianluigi Palombella has written a book (Palombella 2012) deep in erudition and insight and wide-ranging in reach: from medieval law in one small country to world governance, from Bracton to Waldron, from law to history to philosophy. While it touches on many subjects, though, it is animated by a singular conception of a single idea: the rule of law. The book begins with that conception and assumes it throughout, as it goes on to explore the possibility of drawing on it in a global context where the meaning, significance, and possible modes of institutionalisation of the rule of law are still uncertain. My remarks will focus primarily on the pivotal conception of the rule of law, leaving its wider applications to other commentators.

The rule of law is today more talked about in more places by more people than perhaps ever in its history, but that does not mean it is any clearer in meaning or significance, or better understood. Indeed, the term has been put to so many uses in recent years that it is difficult to see how anyone will ever be able plausibly to claim to have cornered the market. Whatever one might propose as the echt meaning of the rule of law is precisely that: a proposal. Whether it will and whether it should be accepted, are other matters altogether.

Of course, that is not a fate unique to the rule of law. Other concepts we would be loath to lose suffer similar problems. Think of democracy, equality, liberty, to name just three that lead independent and successful careers, but also intersect with the rule of law. None of them is, or is ever likely to become, a model of uncontested agreement. What might elevate one proposed conception over others? What renders it insightful, useful, plausible, even if fated to remain controversial? These are serious questions, and particularly important in the context of Palombella’s book, since not just the phrase but his specific understanding of it is made to do so much work. Indeed, the concept is not merely made to work overtime; it is asked to travel long distances as well, and inform novel applications in destinations unknown to its creators and where its initial presupposed conditions (e.g. an overarching sovereign) have no sway.

On the one hand, in Palombella’s conception, the concept has a specific, local, genealogy that began in a particular country, England, a very long time ago, and was the subject of sustained reflection and institutionalisation over centuries. That particular national inheritance distinguishes it from other concepts and other inheritances that on first glance might seem very similar. On the other hand, in his interpretation the rule of law is not tied to its local roots. On the contrary, he finds it available for distillation and transportation from its home, not merely to other similar homes but to contexts for which the historical concept was certainly not designed, and in ways contrary to many received understandings of what the rule of law might depend upon and involve. Is Palombella’s conception up to such a difficult and cosmopolitan range of tasks?
I believe it is and, more than that, I think his account of it is exemplary both for its specific content and in a way not dependent on whether one agrees with every part of it. Perhaps there are elements of the rule of law one would consider important, but which are not present here. Perhaps there are elements in the conception offered that one might question. Even if so, Palombella has offered us not merely a strong case for one distinctive conception of the rule of law, but also a sustained demonstration of how to think well about these matters. The substance of his account is my main subject, but his methodological example could usefully be emulated, even by those who might draw different substantive conclusions from such consideration. I start with substance (§ 1) and move to method (§ 2). I then ask three questions: one about the status of “non-arbitrariness” in Palombella’s conception (§ 3), a second about the point or telos of the rule of law (§ 4), and a third about its social dimensions (§ 5).

1. “An institutional ideal concerning the law”

Thus begins Palombella’s first chapter. This short opening sentence carries a lot of freight. Three pieces to be exact. First, the rule of law is an ideal. Second it is an institutional ideal. Third, it concerns law. I will take them in turn.
Of course we are all aware that the rule of law has a normative component, but commonly lawyers and philosophers don’t start there. Instead, asked what the rule of law is they give a list of features of official state arrangements, whether of legal institutions (Dicey), rules (Fuller, Raz and countless others), procedures (Waldron). At least in the first instance they approach the rule of law, to use a distinction I have elsewhere elaborated (Krygier 2009, 2011) and Palombella endorses, anatomically rather than teleologically. That is to say, they start like anatomists by exploring existing institutional features of central legal arrangements, and only then work outwards to see what if any good they do. Typically they admit, even profess, that the pieces of legal anatomy they focus on are good for something, but they do not move inwards from the ideal to ask what possible institutional set-ups might help attain it.

This primary focus on legal anatomy commonly constrains thought, since familiar features of legal rules or institutions, typically those taken to embody the rule of law in our own time and place, come to be thought of as, at least, default settings for the rule of law, sometimes even necessary settings. That can limit our imagination to what we know rather than allow us to explore whether there are other ways of getting where we want to go. It can also make it hard to think even of the possibility of the rule of law in the absence of familiar hardware. And it often leads to what organization theorists call “goal displacement” (commonly found among bureaucrats, even, I am told, in Italy), where ostensible guardians of the rule of law are better at explaining what rules or procedures must be followed than why. This is not Palombella’s way.
Of course, not everyone ignores ideals. Writers on the rule of law often distinguish between “thin” or “formal”, on the one hand, and “thick”, “substantive”, or “material” conceptions of it, on the other. Whereas the former limit themselves to formal properties of laws and legal institutions, the latter require substantive elements from a larger vision of a good society and/or polity. They insist that one cannot conceive of the rule of law without a heavy moral loading and a substantial moral achievement – whether of human rights, or democracy, or other such large political/moral ideals. But if excessively thin conceptions often seem urgently in need of a feed, to enable any distinction between the rule of law and law in general, thick theories are commonly vulnerable to Joseph Raz’s charge that:

if the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph. (Raz 1979, 211)

Palombella avoids this criticism with the second of the three elements of the sentence quoted above. He stresses that the rule of law is not just an ideal, but an institutional ideal, a point that has both a negative and positive charge. The negative point is that the ideal of the rule of law is not to be understood as the attainment of some extra-legal social ideal, maybe facilitated by law but at best connected instrumentally, not internally, still less conceptually, with it. His rule of law is an ideal for the structure of a legal order, an ideal latent, immanent (though often unrealised), in its institutional fabric.

Thus Palombella rejects appeal to a non-positive natural law with an impatience reminiscent of Oliver Wendell Holmes when he claimed that “the common law is not some brooding omnipresence in the sky”. However, he would not have agreed with the rest of Holmes’ sentence, that reduces the common law instead to “the articulate voice of some sovereign or quasi sovereign that can be identified” (Holmes 1917, 222). For Palombella, the rule of law is neither “brooding omnipresence”, nor voice of the sovereign. It is, as we shall see, a legally grounded balance to the sovereign’s voice, and a limit on what he can legally say. But it is a legal balance, not simply a moral or prudential one.
Palombella rejects, for example, elision of the legal value, the rule of law, with the political value, democracy, though he likes both. Each has existed without the other, though arguably each benefits from the presence of the other. However, as Isaiah Berlin liked to repeat, quoting Bishop Butler, “everything is what it is, and not another thing”, and the rule of law is not democracy. Some states, say eighteenth century England, had much more of the former than the latter. Contemporary single party democracies like South Africa, where the same party is repeatedly elected in free and fair elections, often make sure that state of affairs is likely to continue by eroding legal and other constraints on leaders’ powers; under certain (arguable) definitions they are well supplied with democracy, even while it is not even controversial that they curtail the rule of law. Palombella might have such considerations and examples in mind when he writes that:

at least on the conceptual plane, we cannot conflate rule of law and democracy. [...] the structure and quality of law are at issue, whether related or not to a democratic constitutional State. Obviously, in our Weltanschauung, both democracy and the rule of law deserve appreciation and recognition. However, the rule of law is conceptually independent of democracy, since its rationale is meant to confront power regardless of its shape, any forms of government, regardless of its autocratic or democratic nature. As “democratic” power can be unlimited and unbridled, it would be unreasonable to consider the rule of law as an unnecessary problem in a democratic regime, at least until one
acknowledges the distinctive service and the distinctive nature of law and politics, despite their stable interweaving. (Palombella 2010, 33)^[1]

More generally, some of the sharpest criticisms in the book are reserved for thinkers who become caught in “the trap of the full ‘ethicization’” of the legal system, which is a characteristic feature of totalitarian regimes”. The rule of law is an ideal but it is an ideal for law, not a legally uncontrolled, unanchored, uninstitutionalised moral demand. As Palombella writes elsewhere:

there is, therefore, a necessary distinction, and a necessary connection, between justice on the one hand and ethical and political choices on the other. And one of the main risks that law (under the rule of law ideal) can run is the loss of the institutional settings, social guarantees and practices which defend this relationship in different legal orders and societies. (Palombella 2009, 30)

Palombella’s positive point (the third element of the sentence above) follows: it is that the ideal of the rule of law is not simply a value to be attained or approximated with help from legal instruments of some nondescript universality, but one that dictates and depends upon a particular normative structure for law. It is embodiment in such a structure that is the key to the existence of the rule of law. For law is not a homogeneous category or a simple instrument like, say, a hammer – useful whenever one sees a nail, any nail. Some forms and configurations, good for some purposes are not good for others, indeed might stand in their way. In law as in life:

one can hardly get rid of the canon prescribing the adequacy of means to ends. Since not all instruments can be used to attain whatever ends, it may turn out to be senseless to resort to a knife, however sharp it may be, in order to generate, say, linkages instead of slashes. This is testament both to the resistance of the instrument to uses that would be irrational in respect to it as well as to its amenability to be adopted as an instrument in some more “appropriate” ways (Palombella, 2010, 7).

Coming to appreciate that takes us a considerable distance both from both thick and thin accounts, indeed reveals the irrelevance of the continuum that runs between them. The rule of law has to do with the intrinsic normative quality of a particular legal order, as manifested in the architecture of its institutions and their consequent aptness for certain purposes rather than others, not with how many or few external values one hopes might flow from it:

although there may also be a moral ideal which is often recognised within rule of law, as connected to its root of liberty, certainty, non-arbitrariness, or even human dignity, it does not directly prescribe moral objectives. It prescribes only legal features. It does not ask for the law to bear some specific content, the good law, nor does it claim to dictate the internal form of the realm of power (for example, that power be organised democratically). (Palombella 2010,10)

I have invoked the metaphor of architecture to capture Palombella’s distinctive concern with institutional structure, and of course I am not the first to do so in such contexts. Recall St Thomas Aquinas, writing of determinatio from general principles: “it is like to that of the arts in which some common form is determined to a particular instance: as, for example, when an architect, starting from the general idea of a house, then goes on to design this or that house” (Summa Theologica, 1265-1274, I-II, q.95, a.2c.).
Lon Fuller, too, liked to think of law as architecture. He sometimes called it “social architecture”, sometimes he described lawyers as “architects of social structure”. He appears to have had in mind both the lawyer’s design of, say, contracts for clients and also the design of public legal institutions. He uses a closely related analogy to illuminate what he controversially called the “internal morality” of law, but is fairly uncontroversially taken by analytical philosophers to amount to the rule of law. That morality is key to the “practical art” (Fuller 1969, 91) of developing institutions fit to achieve the value(s) latent in the enterprise of law. Its principles are immanent principles of a practice,

the natural laws of a particular kind of human undertaking, [...] not “higher” laws; if any metaphor of elevation is appropriate they should be called “lower” laws. They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it. (Fuller 1969, 96)

Palombella offers different architectural principles from those of Fuller, but he too is after “the natural laws of a particular kind of human undertaking”. What do they prescribe? Nothing too specific; there are many ways to build a house. It will suffer without adequate foundations and be hard to enter without a door, etc., but there are many sorts of foundations, many ways to design a door. The rule of law prescribes a structural condition, an architectonic fitness, that legal institutions – whatever their precise forms, styles, materials, and designs^[2] – must fulfil, one capable of generating “a legally desirable situation [...] [in which] dominating law appears to be contestable, as a matter of law, on the basis of some independent legal force and institutional structures in the interest of everyone” (Palombella, 2010,10). This is the truth in the Aristotelian contrast between “the rule of law” and “the rule of men”: not an impossible hope for legal machinery that can dispense with human intervention, but rather one in which “law really does exist that gains some autonomous normativity, even vis-à-vis the will of those who ultimately are responsible for its protection and application”. The “quest [is] for legal imperatives (not merely moral ones) to prevail over the will of the sovereign”’ (Palombella, 2010, 8-9).

Here history is key. Palombella looks to the English common law tradition, which was long pluralistic in its conceptions of the sources of law, with multiple cumulative and competing authoritative sources, among them custom, court decisions and statutes. Indeed, while the common law courts were long agents of the Crown, some of the mythologically most powerful contests in the English rule of law tradition, particularly the constitutional struggles of the seventeenth century, pitted them against successive wearers of that Crown. The courts were the King’s courts, but the law they adjudicated was not, in the main, considered to be the King’s creation, nor his to play with as he wished. They were not just instruments with which the Crown and the state could direct activities and control public policy. For the King, like his subjects, was subject to “the law of the land”, which had come down by various means over many generations.
This was not the claim that many have recently taken the rule of law to amount to, and that Fuller encoded: that the law must be expressed in clear, consistent, public, stable etc., rules. On the contrary, Reid shows that in English tradition until the eighteenth century, law was identified with misty, murky but ages-old custom, traced to a time when “the memory of man runneth not to the contrary”. He writes:

the medieval constitutional law out of which today’s rule of law developed would not have met the requirements of clarity or precision. There was always an air of indefiniteness, a smoky vagueness surrounding this all-embracing restraining “law” of English constitutionalism. Even its authority as law was shrouded in immeasurability. (Reid 2004, 16)

On the old view, as Reid puts it, “what mattered was not its intrinsic qualities but that it was customary practice, not deliberative decision” (13). The rule of law tamed unruly exercise of power, not because it came in certain forms and not others, but because even the sovereign was not above it, indeed not sovereign in Cromwell’s or Blackstone’s or Austin’s sense, but subject to higher law.

From at least the thirteenth century until well into the eighteenth, then, the common law tradition maintained that the king was subject to a law that he had not made, indeed that made him king. For the king – for anyone – to ignore or override that law was to violate the rule of law. Liberties, and procedures to protect them such as habeas corpus and due process, were enshrined in that law, and encroachment on such liberties was barred, even to the monarch, by the law. In medieval England the distinction was drawn between two legal domains, that of gubernaculum, governance, which was the province of sovereign will, and that of jurisdictio, the domain of “right”, which was embodied in laws and formed the limit upon which the sovereign could not legally encroach. Palombella takes that distinction, that duality, and the institutionalization of a proper balance between its two elements as the core of the rule of law.

No parallel existed in the nineteenth and early twentieth century Prussian Rechtsstaat and its later Continental cognates, not in practice and, perhaps even more important, not in conception. Even though it is common to conflate these concepts with the rule of law, Palombella insists that in relation to the value fundamental to the latter, they are very different indeed.
The term Rechtsstaat was coined only at the very end of the eighteenth century, to capture a new phenomenon, the modern State with its monopoly of force. That state was the subject of this concept, and also the legal source of law. The Rechtsstaat ruled by or through law, whereas other states, such as the Machtstaat (state of power) or Polizeistaat (police-state) might have dispensed with it and exercised power in other ways. What was distinctive of a Rechtsstaat was not that the state was subject to law that had other sources and independent guardians, but that it acted in a rechtlich way;

according to some nineteenth century (and early twentieth-century) constructions, there is a relation of near-identity between the state and its law, [...] within the system of rule the law is the state’s standard mode of expression, its very language, the essential medium of its activity. (Poggi 1978, 102)

That is how we recognize it as a Rechtsstaat, as distinct from any other type of state. The Rechtsstaat was required to express itself solely through laws that took certain forms. Only such expressions would be taken to be acts of state. This was a limitation certainly, but Palombella insists it was not the rule of law since no separate legal source of normativity was posited or indeed acknowledged as available, until the advent of written constitutions in the twentieth century. Law was the “‘form’ of the State’s will” but it was not a limitation on that will, since there was no source of limitation higher than, indeed legally other than, the State:

After the successful process of codification, beyond legislation there was no instance or superior institution. Thus, there was no superior check on the law. Rather, through its clarity and unity, the basis for certainty was built. The price was not only the ultimate sovereignty of the State, but also its self-reference, that is, its being founded solely upon itself.
The poverty of the legislative state is generated by the hierarchical model of law, and mainly by the lack of a plurality of equally relevant protagonists and actors on the (institutional) scene. (Palombella, 2010, p. 12)

There was, then, no conceptual space to say of the Prussian State or King what Henry de Bracton already said of the King of England in the thirteenth century:

Let him, therefore, temper his power by law, which is the bridle of power, that he may live according to the laws, for the law of mankind has decreed that his own laws bind the lawgiver, and elsewhere in the same source, it is a saying worthy of the majesty of a ruler that the prince acknowledges himself bound by the laws. Nothing is more fitting for a sovereign than to live by the laws, nor is there any greater sovereignty than to govern according to law, and he ought properly to yield to the law what the law has bestowed upon him, for the law makes him king. (Bracton 1968, 305-306, quoted in Reid 2004, 11)

That law is “the bridle of power” is a rule-of-law claim par excellence. The Rechtsstaat had no bridle.
In continental Europe, the notion that the State must comply with a law different and superior to it only came with the development of written and legally binding constitutions, particularly in reaction to the Nazi calamity in the middle of the last century. Until then, although “it was in the state’s interest to promote its self-limitation through self-binding to legal norms” (Loughlin 2010, 320) and the people’s interest too, it was up to the state to bind itself (Selbstbeschränkung). Whereas the common law tradition frequently, and in the seventeenth century vociferously, conceived of individual rights as protected by the courts against the Crown, no such opposition existed in the German conception of the Rechtsstaat, which, as Leonard Krieger shows, projected “older national assumptions which made the idea of liberty not the polar antithesis but the historical associate of princely authority” (Krieger 1957, 5). The contrast is deep. As Gozzi observes:

in Germany [...] the doctrine of the Rechtsstaat precludes the possibility of the primacy of law over the state. Indeed, it is precisely in the relationship between law and state – which in the German case is settled with the primacy of the state – that the most significant feature of the doctrine of the German Rechtsstaat emerges. Conversely, the English doctrine of the government of law is most clearly distinguished by grounding the rule of law on the superiority of law as proclaimed by the courts of justice. (Gozzi 2007, 238)

The rule of law is different from this. A legal order will contain a great deal of law that is “the voice of the sovereign”, but if that is the only voice it contains we do not have the rule of law. Rather, there must be a legal institutional basis for limiting the scope of unencumbered sovereign will; the existence of such a positive legal basis is the source of the rule of law.
Of course Palombella is not asking us to recreate the courts and customs of medieval England. That is not what architects, unless they work for Californian millionaires, tend to do. His point is a general one, and so can travel. The rule of law depends upon a legally institutionalised distinction and balance between what is fundamentally the domain of “the good” that is amenable to the exercise of sovereign will, and what, equally or even more fundamental, is a source of legal limitation on the sway of that will over the domain of right, of jurisdiction. The existence of this duality and such a balance is key: “where the rule of law is absent, justice, or the ‘right’ has no shield. It provides no filter against the contingency or absoluteness of ethics”. (Palombella, 2010, 20) In that domain, monistic conceptions of law must retreat before the pluralism embodied in the rule of law; “the rule of law ideal has to do with a configuration protecting social normativity from being monopolised by one dominating legal source”(Palombella, 2010, 28). So if one is after the rule of law where such pluralism does not exist or is not acknowledged, at the global level, for example, one must seek to build or – better and in his metaphor – “weave” strands of connection, limitation and balance, between such forms and sources of normativity as already exist, or develop new ones. Neither monistic attempts to suck all normativity into some global hierarchy, or any retreat to relativistic conceptions of “the rule of law in this jurisdiction” will do. The former must be diluted and balanced; the latter must be connected, interwoven. That is the task for global legality, which Palombella’s book seeks to imagine and evoke, since the threads are only beginning to be identified, still less yet woven into any coherent and shapely pattern. Can it be achieved? Perhaps; there are no certainties here, but it is worth exploring, since the rule of law “appears to be an essential precondition for a decent legal environment”.

2. Method

Apart from its distinctive account of the rule of law and extension of it to new and at times distant fields, Palombella’s book is methodologically distinctive as well. At the very start of the book, he notes the irreducibly contested nature of the concept. As he explains:

it has been held to mean different things at different times and in different contexts. Its complexity and contestability is due to many causes, including the interweaving of conceptual, historical, philosophical meanings. There is also the fact that the concept belongs to multiple domains, from law to political morality. (Palombella, 2010, 3)

What to do in such circumstances? How to identify some coherent and reliable identity and character in a concept that is at once so besieged with suitors of varying orientations and tastes, and so freely, apparently undiscriminatingly, promiscuous in welcoming them all? Given the slipperiness of his subject, Palombella in effect adopts an approach of triangulation – quite literally so for it has three central elements. One is philosophical. To be of use, an account must be “conceptually sustainable on a philosophical and legal theoretical plane” (Palombella, 2010, 4).

Much contemporary invocation of the rule of law, say by the World Bank, or the IMF, or indeed the swarms of people amassing “rule of law indicators”, such as the World Justice Project, with its global and hugely expensive “Rule of Law index”, have nothing to say at this level. It is clear they are in a normatively loaded business – they all certainly seem to think the rule of law is a good thing – but they tell us little about what leads them to this conclusion, apart from a range of hunches about uses to which their favoured instrument, the rule of law (variously defined), might be good for or lead to: economic growth, human rights, democracy, “security sector reform”, and whatever other goals become fashionable over time. What the rule of law is and what it might depend upon remain matters of considerable unclarity and variability. The empirical causal hypotheses such “RoL” promoters develop about its effects (which motivate the spending of vast amounts of money) vary in empirical backing, and some are more plausible than others. For philosophical analysis of the concept that stands at the heart of all this activity, however, we have to go elsewhere.

By contrast philosophers deal in theory, of course, but their knowledge of the legal and intellectual history of the concepts they use and choose is rarely profound. Many of them do not think that matters, since they are dealing with conceptual universals not contingent empirics.^[3] An (old) English lawyer might have heard of Bracton; legal philosophers are unlikely to go back much beyond Fuller. Palombella, by contrast, grounds his philosophical arguments in investigation of the historical origins and development of the concept, by distinction from falsely claimed kindred such as Rechtsstaat, Stato di diritto, etc. The importance of genealogical grounding here is partly to inform and guide, for there are insights to be gained from those histories and the thought and experience that shaped them, both from what makes us think of them together and from what differentiates them from each other. We also have experience of successes and failures. There are all sorts of difficulties, as any architect will know, in directly transporting precise models from one terrain to another, and Palombella rejects such a procedure. Still it would be wise to ponder, and foolish to ignore, what has been tried.
It is also wise to look to the historical experience of the rule of law, for conceptual reasons. The term is not a mere placeholder to be filled with whatever takes a contemporary philosopher’s fancy. It has a deep structure of thought and practice already built in. The concept has been associated with important intellectual, moral and political values, purposes, institutions, and practices. To understand such concepts in widespread use, we need to be alert (with an ear both philosophically and historically attuned) to what they have been taken to mean over generations to whom they have mattered, rather than simply seek to “forge” an account of them “on a purely abstract basis”. Rather:

since reference to rule of law appears to have been made constantly in legal history and in contemporary legal documents as well, its status as an ideal cannot be envisaged only from a desk. It must also be reconstructed through its historical recurrence. (Palombella, 2010,11)

The combination of philosophy and history lends itself to the task Palombella sets himself, one that can be likened to Ronald Dworkin’s understanding of “interpretation”: a constructive engagement with a tradition, that seeks at once to make sense of it, and in a way that casts it in its best light.

Thirdly, however, while history grounds conceptual reconstruction, that history should not be assumed parochially to define it and limit its use, say, only to those (very few; indeed just one) countries happy enough to have or to have inherited a millennium or so of legal history identical to that of England. Thus though he argues, like Lord Dicey, that the rule of law is a distinctive English creation, Palombella doesn’t simply identify it, as Dicey did, with the specific institutions supposed to have manifested it in its place and time of origin, or those thought to embody it today; after all, as he writes elsewhere, “the long history of the rule of law has embraced many incarnations” (Palombella 2009, 40). Rather, from the history he considers and the features he finds central, he seeks to distil principles of institutional architecture cast at a level of generality that allows the concept to inform analysis of, and guide application to a variety of specific institutional “incarnations”, including extension to contemporary institutional transformations, even beyond the State. So long as your institutions fulfil these rule of law conditions, they can come and have come in many forms and guises.

In this way he is able to fashion an account that is philosophically robust, since its conceptual apparatus is well constructed and powerfully defended; institutionally textured, not merely the product of philosophical fiat, since its elements keep faith with ideas and practices that have been thought and institutionalised over long periods; and broad and extendable in scope, since it is a project not a portrait. Whatever one thinks of his particular conclusions and specifications, this seems to me an exemplary three-step procedure – philosophical underpinnings, origins, elaborations and applications – for respecting but not merely recycling important concepts and institutional achievements with specific histories and concerns, that one wants to employ in circumstances that might include ones different from those in which they originated.
So much for admiring exposition. What follows are three questions about this impressive conceptual reconstruction, interpretation, and re-appropriation. They are questions in the true sense; I don’t know the answers. They are provoked by my engagement with Palombella’s powerful account. I am persuaded by a great deal of it, as I have been since, some years ago, I came to know it. Our views overlap but they are not identical, and I am keen to know whether they should be.

3. Non-arbitrariness

My first and smallest, perhaps just semantic, question concerns the value that animates the rule of law. It is common to say (and I have often said) that it is opposition to the exercise of arbitrary power. That will not, however, do for Palombella. He recognises the important connections between non-arbitrariness and the rule of law, but says non-arbitrariness is not enough. Or rather he says that, but then he narrows the objection:

Non-arbitrariness results from the rule of law. Although respect for laws and procedures, regularity and certainty served the attainment of both non-arbitrariness and the rule of law, it would be short-sighted to assume that the rule of law simply coincides (or exhausts itself) with non-arbitrariness – and even more so should non-arbitrariness be understood like such a rule-regularity as that constructed by the so-called legislative European State [my italics]. The latter has proved largely amenable to conveying the whim of the Executive or of legislative majorities (Palombella, 2010, 23).

There is a vacillation in this passage, between a broad concept of arbitrariness and a particular conception of it (in my italics). On the latter we are in agreement, but I wonder whether the concept of arbitrariness contains more. It is clear what Palombella rejects here. If power is taken to be non-arbitrary when it is exercised according to rules of a particular character, that can happen, is supposed to happen, in every Rechtsstaat. And yet for the reasons already noted, that does not amount to what he understands as the rule of law. It is consistent with monistic state power untamed by any other but acting through the medium of rules. I wonder, however, whether this is to understand arbitrariness and its contrary too narrowly.

Reid has emphasized that the common law was accustomed to contrasting the rule of law with arbitrary power; that, above all, was the evil that it was supposed to curb. But, as we have seen, common lawyers did not have in mind legal rules of a particular formal character. That that law was often not expressed in clear, prospective, general rules, today often regarded as the essence of the rule of law, was not to the point. Indeed, given the customary, dynamic and evolutionary character of the common law as theorized by its adepts, hidden in the mists of time etc., it was beside the point. The issue was that there was a branch of law that could not be overridden by another, “sovereign”, branch.

Unfortunately, while it is a familiar concept and one can easily point to examples, I have not found (and have not myself contributed) a perspicuous analysis of the concept of arbitrariness (or its contrary), so much invoked in relation to the rule of law. Is it, for example, “uncontrolled interference”, on the one hand, or “interference that is not subject to established rules” (Pettit 2012, 58), on the other? These are two of several conceptions of the concept, and they are both familiar conceptions of it. They have particular relevance to law; the former commonly being referred to as “government under law”, the latter as “government by law”. If one had to choose, there are strong arguments to favour the former over the latter, but ideally one would encounter the first always, and in exercises of public power the second as well (private power is often arbitrary, but not because it is not exercised through legal rules). The English tradition through to the eighteenth century, and Palombella today (though in other terms), favour the former; the Continental (until the advent of written constitutions) favoured the latter. I’m fond of both.
From the point of view of those subject to the exercise of power, both its control and its manner of exercise, government under and by law, are important. But they are not the same. A state could be controlled but act under decrees with quite particular targets, kept secret from citizens, or inconsistent with each other, or retrospective, or without any decrees, let alone laws, at all. It could, conversely, be uncontrolled but act through promulgated, clear, consistent etc. laws. In either case, something significant would be lacking. Substantively, in other words, I agree with Palombella that the rule of law is the antithesis of uncontrolled power. However, having learnt from him the value of attending to the concepts used in traditions to which we appeal, I worry that he makes too short work of the long hostility to arbitrariness at the core of the rule of law tradition.

4. Telos

In any event, instead of non-arbitrariness as the central rule of law value, Palombella posits a legalised version of non-domination in the sense elaborated by Philip Pettit in his writings on republicanism. For Pettit the core value of republican political theory is hostility to domination, particularly understood as uncontrolled interference. This exists whenever it is possible for “reason-independent control of others” to occur, even when it is not actually occurring. One is free from domination if no one is or is in a position to dominate you. As Pettit puts it, “To enjoy non-domination is [...] to be possessed, not just of non-interference by arbitrary powers, but of a secure or resilient variety of such non-interference” (Pettit 1997, 69). Such security and resilience are not likely to occur by accident but require institutional support. That, for Pettit, is a task for the rule of law, among other legal and political arrangements. Indeed, the link between law and liberty in this republican understanding depends on law denying the possibility of arbitrary exercise of power; “the right sort of law is seen as the source of liberty” (39). This for Pettit makes structural impediments to domination part of freedom in a republican sense. Even if they interfere with what a person can do, that of itself is not a diminution of freedom, if they do so for the right sorts of reason. Only freedom that interferes with control over one’s fundamental choices will be dominating interference.
Palombella argues that the rule of law limits the possibility of domination by providing

a legal reason [...] for arbitrariness not to take place, whether through the “forms” of law or by the fiat of the King. It is not just liberty as absence of interference; rather, absence of interference is structurally, not contingently granted, by the positive existence of “another” law. (Palombella, 2010 p. 23)

However he does not merely adopt the value, he also adapts it, by arguing that the non-domination with which the rule of law is concerned is both broader and narrower than the republican freedom that concerns Pettit.
It is broader, because it is not tied to any particular political conformation; it concerns the configuration of law and can encompass a large variety of political regimes.

That is why even where “the nature of power is democratic, a positive law is protected even against democratic powers”.
But the rule of law is also narrower than republicanism, because it is only concerned with legal architecture, not social or political or external moral arrangements. As Palombella puts it:

it could not be improper to describe the ideal of the rule of law as a non-domination principle, provided that we do not measure its extent and depth through criteria of content, social structure, power organization, individual-centred and autonomy concepts we are so used to in liberal democracies. Moreover [...] as a matter of rule of law, non-domination can only be used in a weak sense, and only in order to mean a pure legal configuration, pertaining to legal institutions, not directly to political or social ones. (Palombella 2010, 24)

The rule of law makes it impossible to impose domination legally; it does not address, conceptually at least, its actual political or social possibility.

I have no difficulty with the first, broader, claim. The rule of law is not democracy, human rights, a republic, a free market, though there are connections and interactions, and one would want it whatever particular political system one lived in. But the second, narrower, claim is puzzling. How does one tell whether the rule of law is strong in a society? As I understand the argument, you look to whether the right sort of balance exists in the law between sources of normativity in productive tension. But what is the precise connection of this balance to the immanent values of the rule of law? Three possibilities occur to me. One might value it as a condition for achievement of the immanent value of that institutional ideal, say, reduction of the possibility of arbitrary exercise of power, or of domination. Or, it might perhaps be more than a condition, a constituent element, in the sense that Amartya Sen argues that the rule of law itself is not just causally good for development, but is itself a constituent element of development: a society will be undeveloped to the extent that it lacks the rule of law, even if GDP is high, etc. (Sen 2000). Or one might think of duality and balance as the telos itself of the rule of law?

I have no objection to balance and duality as conditions or constituents. Indeed, that is too negative to say; I am persuaded by Palombella. But as the telos itself? It would be odd to say that, and Palombella does not say it. He clearly thinks the balance embodied in the rule of law contributes to a larger good or is part of that very good, and this is why he pursues it. And yet he cuts off any reference to the ultimate telos of the rule of law, when he stipulates how one decides on whether the rule of law exists, and to what extent it might exist. Indeed he seems to rule out our looking at what happens outside the law at all, where we will find whether power is actually being exercised arbitrarily or domination imposed.
We have seen that Palombella and I agree that the rule of law should be approached teleologically, in terms of its end, rather than anatomically, by way of any particular set of institutions. As he explains what he calls my

caveat [against anatomy], it leads us to the normative ends that the rule of law ideal prescribes, on the legal plane [my italics], without fixing permanently the ultimate set of requirements, whether procedural or substantial, to be expected as automatically granting the achievement of those ends. Features and ends are, after all, distinguishable. (Palombella 2010, 27)

I agree with everything in that passage, apart from the limitation in the words I have italicised. Palombella is committed to a particular architectural specification of whatever institutions one has: there must be legal duality and balance. But surely these are to be valued as conditions or constituent elements of something more. We don’t want duality or balance for the sake of duality or balance; we want them for further reasons. Indeed, writing elsewhere, Palombella says something very like this:

Law itself would totally fade away, denying its own existence, should it turn into crude violence and brutality. If the necessary and sufficient [my italics] means have to be found, then it is necessary to develop a combination of a logic of means and contextual devices, always bearing in mind the goal of preventing the entire machinery of social normativity from being monopolised and absorbed by an absolute and self-referential ruling power, in one of its up-to-date manifestations. (Palombella 2009, 42)

If Palombella’s powerful argument is successful, it shows that a legal balance is crucial, arguably necessary for the rule of law, maybe indeed more than that, not just a condition but a constituent element. That, however, does not make it sufficient. Perhaps there are balance and duality within the legal order but nevertheless power is routinely exercised by “violence and brutality”, either by a state that doesn’t care about the law or, as say in Mexico or Afghanistan today, by non-state outfits with guns which recognise no law, or as in Iraq, by both at once. If “the stable fil rouge [of the rule of law tradition] [...] is the capacity of law to prevent the will of the sovereign from completely absorbing available social normativity” (Palombella 2010, 41), it might turn out that the reasons law lacks that capacity, the reasons law does not rule in a society, lie outside its internal configurations. If one is interested in that capacity, shouldn’t one then look outside as well?
Palombella repeatedly, however, restricts the rule of law to a matter of its internal configuration: monistic or balanced. He makes a strong case for balance. But since the point of such balance is to counter domination, stopping there is strangely to foreshorten the teleological story. It is foreshortened teleologically, for the reasons just given: it focuses on necessary conditions or constituent elements not ends, at least not ultimate ends. It doesn’t get to the final point. It is also foreshortened sociologically, and I will end with that theme.

5. Society

Pehaps the difference between Palombella and me is rather simple: he is a more serious lawyer than I am. For him, the rule of law is a lawyer’s concept, and a concept having to do with the architecture of law. And part of what makes his book not merely intelligent but deep, very much as Lon Fuller was more than clever but also deep (whereas his analytical critics were often more clever than deep), is his profound sense of the distinctiveness of legal apparatus, and the normative significance of that. This is often, as Kristen Rundle has emphasised to me, quite ignored by non-lawyers, whether philosophers or sociologists or political scientists, when they talk about law, and their understandings are poorer for that.

I take those criticisms, even if they might well apply to me. Moreover, Palombella already anticipated such disciplinary differences when he spoke of its “interweaving of conceptual, historical, philosophical meanings”. So perhaps there is no disagreement, just a difference of origins and concerns. And yet I don’t want to abandon all sociological and political consideration in relation to the rule of law; that would be simply to reverse the myopia of which social scientists are often rightly accused. I would press the difference further.

It is interesting that in the elements of “interweaving” that Palombella mentions, sociology is missing. In relation to the rule of law, it has often gone missing. And yet the rule of law is not just about law, and certainly it’s not just for law. It is also and equally about the ways power is exercised in society. Actually, more than equally. Unless it affects the ways power is exercised, whether within or outwith law, I see little reason to be interested in it. Wild power is a terrible thing, whether that is despotic power or anarchic. As Montesquieu taught, power must be moderated. Civilised society seeks ways to tame and moderate its exercise, among them – perhaps central among them, though that is an empirical question – legal ways. Many ways have been tried; the rule of law tradition has emphasised the central importance of legal ways.

Palombella is concerned that the law not be deprived of its potential duality, for should it be reduced simply to the will of the sovereign, it would turn into the brute ‘rule by men’. But many people who share his hopes for the rule of law, and fear “rule by men” as he does, worry less what the law will be reduced to than whether power will – as it often has – come to be exercised that way. They hope that law might help block that common state of affairs. And there are many ways the exercise of power can be immoderate, many sources of it, many ills that flow, that have nothing to do with its internal structure. Wherever the law, whatever its internal configuration, its architecture, just doesn’t count for much as a constraint on how power is exercised, then the law does not rule over power in that society. So the rule of law has social dimensions, not exclusively legal ones.

This is not to insist that some external social value, to which the rule of law might be instrumentally useful, should be smuggled into our understanding of the rule of law. As Palombella has made clear, the rule of law embodies immanent, defining ideals, distinct from external purposes that it might facilitate. So the rule of law is not economic development or democracy, even if it might contribute to them and them to it. But law is specifically and characteristically – at its core – a vehicle through which power is exercised and by which it might be constrained, and one question, perhaps the central one, is what difference law makes to the ways power is exercised, and whether that exercise is constrained by law. Non-arbitrariness and non-domination are, in other words, tied to the concept of the rule of law in ways that economic development or even democracy are simply not. The former are not external but immanent values of the rule of law, their telos, whatever further ways that might be found, or not be found, useful.

Social architects, after all, should know a good deal about the terrain for which they design. The quality of their materials will not always compensate for the swamps or sands on which they must try to build, the barrenness and inhospitable nature of some terrains, the treacherousness of others, the presence of uncongenial structures, among them social structures, difficult to remove and yet also difficult to replace. Conversely, if there are features of the landscape one could exploit or seek to preserve, one needs to understand what they are, and what they require, as well. And since the job of law is to work in the world, features of that world are inextricably bound up with the sort of work that law comes to do and be able to do.

Architects should also know something of the relationships between their constructions to the tastes, preferences, understandings and purposes of those for whom, ostensibly, they are building. If in some countries (Bulgaria as a matter of fact), law is thought of as “like a door in the middle of an open meadow. Of course you could go through the door, but why bother?” this presents a challenge to an architect who would like his building to be useful. A major problem in many countries is not to design the door but to get people to approach it, let alone go through it; and that for a range of different reasons: some think it leads nowhere; others that one can get lost, or lose, in there; others that danger lies there; others still that it is not designed for people like them. Again, if, as in many Soviet republics and in post-Soviet Russia too, “politics [and equally law] was not something you did; it was something other people did to you” (MacFarlane 2003, 72), the task of making the law inviting might be challenging. And if the law or citizens themselves are surrounded by predatory beasts, that too might affect issues of institutional design and construction. It would be an odd architect who proudly disdained knowledge of where and for whom her buildings are likely to be erected. Lawyers however, do it all the time, and not accidentally. Many institutional designers consider such matters none of their business. That is good reason to believe they’re in the wrong business.

As I have argued elsewhere at length (Krygier 2011, 85-91), and will only mention here, a great deal that matters most to whether law can rule is found outside legal institutions, but should not therefore be found outside legal theory. Many of the key dangers to the rule of law are socially generated, many of the major goods of constraint on arbitrary power will be delivered, where they are, in the wider society, and many of the major sources of defence against arbitrariness are delivered there too. An account of the rule of law devoted only to internal features and configurations of legal institutions, rules and practices themselves, and one that sees it as an antidote only to poisons that emanate from wielders of the law and how law frames their legal options, is likely to miss a great deal of what makes the rule of law possible, what threatens it and what makes it valuable.
That does not make such a focus on the distinctive attributes of legal architecture irrelevant or unimportant, as Palombella’s intriguing and powerful book makes abundantly plain. It is key, and I know of no deeper examination of the legal ingredients of the rule of law. But I would hope to see that account complemented, balanced, interwoven perhaps, with another that seeks to discern, in keeping with the ideal of the rule of law, its social and political sources, dangers and strengths. Having learnt so much from this book, I look forward to the next one, in which Palombella does precisely that.

Martin Krygier
Professor of Law and Social Theory
Faculty of Law – University of New South Wales UNSW
Sydney NSW 2052
Australia
m.krygier@unsw.edu.au

References

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Fuller, Lon L. 1969. The Morality of Law (1964). New Haven: Yale University Press.

Gozzi, Gustavo. 2007. “Rechtsstaat and Individual Rights in German Constitutional History.” In The Rule of Law. History, Theory and Criticism, edited by Pietro Costa and Danilo Zolo, 237-259. Dordrecht: Springer.

Holmes, Oliver Wendell 1917, Southern Pac. Co. v. Jensen[1916] USSC 71; , 244 U.S. 205, 222 (dissent)

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Krygier, Martin. 2009. “The Rule of Law: Legality, Teleology, Sociology.” In Re-locating the Rule of Law, edited by Gianluigi Palombella and Neil Walker, 45-69. Oxford: Hart Publishing.

— 2011. “Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?” In Getting to the Rule of Law, Nomos no. 50, edited by James E. Fleming, 64-104. New York: New York University Press.

Lacey, Nicola. 2013. “Institutionalising Responsibility: Implications for Jurisprudence.” Jurisprudence 4: 1-19.

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Palombella, Gianluigi. 2009. “The Rule of Law and its Core.” In Relocating the Rule of Law, edited by Gianluigi Palombella and Neil Walker, 17-42. Oxford: Hart Publishing.

Palombella 2010, “The Rule of Law as an Institutional Ideal” in L.Morlino, G Palombella (eds), Rule of Law and Democracy, Brill, Leiden 2010, pp. 3-37

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Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press.
— 2012. On the People’s Terms. Cambridge: Cambridge University Press.

Poggi, Gianfranco. 1978. The Development of the Modern State. Stanford: Stanford University Press.

Raz, Joseph. 1979. “The Rule of Law and its Virtue.” In Joseph Raz, The authority of law. Essays on law and morality, 210-229. Oxford: Clarendon Press.
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Sen, Amartya. 2000. “What is the Role of Legal and Judicial Reform in the Development Process?”; http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/legalandjudicial.pdf.

^{[ ]} I am grateful to Kristen Rundle for insightful comments on my first draft of this essay.
^[1] I shall focus mainly on the first chapter of Palombella 2012, because it contains the full elaboration of the notion of the rule of law. Often I shall refer - for the non Italian reader- to earlier work in English, on which that chapter draws.
^[2] “All possible institutional settings which do not run against this general dualism are acceptable, and can prevent the legitimate existing sovereign from monopolising law through its absolute and overriding will” (Fuller 1969, 38).
^[3] For a fine critique of the lofty purity of “the bird’s eye of analytical jurisprudence” see Lacey 2013.