There has been debate over the Rule of Law suggesting a separation between the rules by law and rules made by mere power of a ruler. In the days of Aristotle and Plato, there was a clear distinction between rules and rule by mere power. These distinctions will be discussed below, detailing the benefits and defects of both types of rules.
More recently, the Rule of Law encompasses both rules (mainly Statutes) and judiciary-made rules. Statutes are necessary to limit judges’ ultra vires but at same time, judiciary precedents are needed to ‘complete loopholes’ within these general statutes.
As seen throughout the discussion, notwithstanding defects/benefits statutes and judiciary-made rules have, both are incident to the Rule of Law.
Greek Debate over what is incident to the rule of law and what are its benefits and defects.
Aristotle and Plato have debated about the Rule of Law. Barker writes about Aristotle’s viewpoint and how being ruled by a constitution & rotation of office provides everyone with the same rights and worth, rather than being ruled by a king judging in accordance with his/her own feelings & thereby, not having a ‘neutral’ mind when exercising authority.
Plato suggests powers exercised by a ruler are governed by customary and community rules. Decisions are made by the minds of the rulers & their delegates. Humans have some innate knowledge of what is important and good in human life and because of this, we should not be constrained by laws & rules but by what our minds tell us what is right & just in the circumstances.
Plato claims two defects within the idea of rules by law. Laws are too general and they are permanent. General rules can neglect and overlook the differences of people and their cases. e.g. Three people in a boat and all three knew that they wanted to eat each other, hence kill each other. A kills B, sharing B’s body with C. Is this is murder or manslaughter? Is there a claim for ‘self-defence’ as it was ‘necessary’ for the killer to not be killed by the deceased? The laws do not expressly provide on how to deal with this specific situation and judgement must then be made on moral principles (“principles” are discussed by Dworkin under the Modern Discussion section).
Permanent laws are incompatible with changing demographics and technology. Laws must change at the same pace with the rest of society to maintain society’s current perspective of justice & righteousness, but time delays in passing laws precludes this. For example, the new dog laws in New Zealand. Still now, the public waits for tougher dog laws to be passed on pit bulls and others alike. Even worse, there is no guarantee administration will be efficient. Here, Plato argues, rules fail to meet the differences of time and there is a need for rulers to exercise discretion as it encourages efficiency.
Another example Plato uses is a physician who treats people by the book rather than by looking at patient’s particular & peculiar problems. Dr Patch Adams proved physicians looking at specific & different problems may lead to the patient not needing “text-book” treatment at all, but simple love & care.
Aristotle supported being ruled by law and not rulers. Judges may be swayed by passion or from public-hostility. In some cases, their actions should be checked against laws to ensure that their exercise of legally-conferred powers are consistent & impartial. This does not mean that the law is good but shows law is essential for everyone to look at and compare if just decisions have been reached.
Rules are crucial to maintaining neutrality within the legal system. Aristotle uses Plato’s physician example and presents how rules for doctors are needed to maintain trust & honesty within the patient. Say the doctor conspired with the patient’s enemy regarding what the patient’s illness was, because the doctor thought she had the power to do what SHE THOUGHT was right in the circumstances. Here, patients would be more inclined to be treated by the book than be treated by one who judges on what they think is ‘right’ about the patient.
Where rules fail to take into account of specific, exceptional cases, Aristotle claims, equity should apply. Judges should correct errors of the law, rising from oversight by the lawmakers, given there are rules to be corrected in the first place. This is therefore, an argument to being ruled by laws.
He favours rule by democracy where government by a collective of good men is better than being ruled by an absolute king. Decisions ought to be made by a democratically-elected assembly (e.g. parliament in our present day). Unlike Plato’s idea of ‘permanence’, offices and positions will be rotated, enforcing the idea that everyone is equal and everyone should both rule & be ruled. For Rotation to proceed, laws must govern such rotations (cf. nowadays where there are conventions and the Elections Act 1993 stating how parliament should be elected).
1950s to 1970s Debate
Fuller outlines potential failures made within a legal system ruled by a ruler. These failures suggest emphasis on the importance in the value of law and how it should be designed in a legal system. He uses an imperceptive King (Rex) and demonstrates how discretionary power can lead to unjust rules.
Fuller argues for a purely formal concept of law. For example, the concept of an “existence of public order” which means an organised government, operating through various branches. However, this concept has limitations e.g. in Hitler’s Nazi Germany or more recently, Saddam Hussein’s regime in Iraq. Their laws and rule of law were just as much as laws in any other country, providing an organised government, public order – operated by rules through various branches of governments.
Akin to these examples are Fuller’s failures for a legal system. These failures include failure to not create rules on an ad hoc basis, not publicising rules and the making of incomprehensible, contradictory & retroactive rules. Also, rules requiring conduct beyond the powers of affected parties, frequently changing rules (which subjects cannot keep up with) and failure of congruence between the rules & their administration.
While a purely formal concept of the Rule of Law is necessary, limitations must be made to prevent miscarriages of justice & abuse of subject’s rights.
Raz continues Fuller’s ideas about designing laws and what values we should be placed on rules within a legal system. Rules are made up because of reasons but what if there are conflicting reasons? This is faced everyday when it comes to judges deciding on reasons to base her/his decision, hence, judges must then balance & weigh these reasons. However, he says there are other reasons that are irrelevant (strictly-speaking) to the balance of reasons. These reasons are called 2nd order reasons or “EXCLUSIONARY REASONS”.
They give a reason to disregard the balance of reasons (eg. The investment case – deciding to invest before 12 where 30% chance of a $3 return or investing after 12 where 45% chance of getting a $2.50 return – you decide to not take either choice. Your exclusionary reason being you are too tired to proceed). Such reasons, apparently make our legal system more efficient and well-organised leading to society to achieve better results. I.e. a habit of obedience to the laws, rather than waiting for individuals/adjudicators to make decisions.
Furthermore in 1979, Raz, outlines conformity with the Rule of Law. Yet this should be only be done if the values that the Rule of Law serves, are clearly know to all. Conformity by those with legal authority includes government & judges subject to laws too. These officials exercise arbitrary power and must be dealt with objectively by the rule of law. Laws give officials political freedom, that is, conferring powers to prohibit certain behaviours & public authorities’ powers that interfere with individual personal freedom. Thus, observing the rule of law is fundamental to respecting human dignity, otherwise, people become uncertain as to how their cases will result and may lead to a rise of disappointed expectations. First, people are encouraged to rely on the laws and then that assumption is withdrawn by authorities’ disregard for the laws.
Pound challenges the ideal of justice. That being, law administers all cases expressly, through laws, or indirectly, through logical reasoning by judges. In reality it is always difficult when deciding in cases where choosing amongst authoritative premises (deducted from precedents) and deciding cases where no authoritative premises exist! To overcome this difficulty, Pound claims (like Fuller does) equity takes it role. But, once again, there must be’over-rigid’ rules in the first place. Notwithstanding their inflexible stance, rules still secure us against well-meant ignorance of the judge and improper motives on those who administer justice.
Pound explicitly outlines the advantages & disadvantages of following rules by law. Advantages including prediction of administration, security against individual judgements & improper motives, upholding ethical community-formulated standards and benefiting from predecessor’s experience. Disadvantages included impersonal & arbitrary operation on subjects, dealing with a practical matter too academically, and the slowness to advance its conceptions of justice with that of the present.
Modern Discussion: Parliamentary Statutes compared to Judiciary Supremacy – benefits and defects of each.
Raz also acknowledges how arbitrator’s authority alone is an exclusionary reason. Thus, should follow arbitrator’s authority, given the authority is based on these three conceptions:
1)Dependence thesis – directive authorities are depended on by subjects to decide reasons for them in their cases.
2)Normal Justification thesis – more beneficial for directive authorities to apply binding laws applicable to subjects, than to not apply.
3)Pre-emption thesis – the fact law is a pre-requisite, alone, justifies reason to perform.
Laws must not be obeyed blindly as, like the Normal Justification thesis states, rules & authority must be justified. They reflect authorities’ limited roles as mediators deciding between reasons brought about by dependent, conflicting parties and they are not intended to allow authorities to create new laws by their own personal considerations.
Both Hart and Dworkin claim the rule of law consists of both rules and judicial discretion. However, Hart contended there were only rules and judges, where ambiguous rules were clarified by judicial discretion. This is what Hart called the “Open-texture” theory and such a theory did not support the “command” theory, whereby rulers alone comprise the rules for society. Laws have an ‘open texture’ as some have indeterminate language, general & unclear standards (e.g. “fairness” “reasonable”) and no clear governing selection of precedents for particular cases – judicial discretion would then be required to assist in these ambiguous areas.
Dworkin takes the legal system further, claiming that principles are an essential to the Rule of Law, as well as rules and judicial discretion. Principles include society’s norms, moral standards, policies and ethical views. The inflexibility of rules means they have this ‘all-or-nothing’ application and where they do not apply, principles are necessary to influence decisions. For example, the laws on abortion. This is a classic case of who has a right to life – the mother or the child – and what principles should apply & how they should be weighed.Here, judges take rules and principles into account. Judicial discretion without principles can lead to unethical decisions, that may be final (hence no review may be available to affected parties) and may operate retroactively. The Elmer case demonstrated that judges needed to look at society’s standards & morals when deciding on whether to give legal entitlement to the beneficiary who killed the trustee, otherwise there would be public outcry over the unethical & immoral standards of judges.
Ekins challenges the requirement for judges to have the power of judicial review. Adjudication is based on an assumption defining fundamental rights and who is entitled to them in particular circumstances. Judicial supremacy, following adjudication, rests on an assumption “Rights adjudication are so determined by judges who will weigh out parties’ assertions to particular rights, according to their own moral convictions”. For example, the right to life – this is accepted as a fundamental right yet its application to political disputes is still unclear. The right to life is a reason used by opposers and supporters of euthanasia and even abortion. Such conflicting matters still now have no logical method to resolve them.
Rights adjudication allows judges to decide on what they think is just, when it should be parliament’s choice given they were elected democratically. Parliament represent society’s moral convictions more than judges do. This leads to constitutional implications where judges place themselves as legislators by expounding self-evident fundamental principles. Dworkin argues here that the legislative process is far more equipped for changes in the rule of law in comparison to judicial supremacy as parliamentary legislation apply prospectively and are designed to be clear & understandable. Legislation also considers ramifications of particular decisions & consultation with other diverse groups. But under judicial supremacy the judiciary has the final legal authority on what legislation is applicable. This can lead to a reluctance to rely on legislation in your case – no matter whether legislation is clear or not, the judge can still revise or invalidate such legislation – and this is inconsistent with the doctrine of parliamentary sovereignty.
The separation of rules by law and rules by the judiciary is unrealistic and impractical. In ancient Greek times, the distinction was generally clear between rules by law and rules by rulers. The former having advantages of certainty and security against abuse of power, whilst the latter advocated moral principles, ethical standards and timeliness.
Through the 20th century and up until now, the Greek debate evolved into a new debate between parliament-made laws and judiciary-made laws. I see this as a conflict with who has more authority: parliamentary laws or judiciary precedents? The Rule of Law now consists of these two ‘incident’ elements: the judiciary and parliament. Each with its own benefits and defects, but both are necessary to trade-off each other’s defects. Parliament-made laws are secondary reasons providing consistency, security, and certainty amongst citizens and government officials.
This is all apart of the doctrine of parliamentary sovereignty whereby laws are intended to represent everyone’s perspectives, voted upon by the democratically-elected parliament. But judiciary precedents are necessary where lawmakers have overlooked particular cases. Ekins and Raz, conjure the concept that the judiciary should not have the final legal authority – obedience to parliament-made laws is fundamental to maintaining orderliness and security. But like Dworkin and Hart views, rules alone do not constitute the legal system. Legally authorised judges are still needed to ‘fill-in-the-gaps’ where laws are too ambiguous in certain cases and to outline moral principal and ethical standards.
Being ruled by law and ruled by judiciary are crucial to the Rule of Law. Both are interdependent and they ensure each validly exercises power upon its subjects. One’s defects may be another’s benefits and vice versa, thus both are co-dependent and incident to the rule of law.