The Rule of Law and Its Many Tensions

Best to begin by acknowledging one’s mistakes. In the original Liberty Forum essay given the title “Why Freedom Is a Legal Concept,” I referred to the often quoted statement, so important for liberty and the rule of law, of Henry de Bracton, that “above the king is the university of the realm”—that is, “there is no king where will rules and not the law.” I should have made clear that de legibus et consuetudinibus Angliae is to be understood as attributed to Bracton rather than having been written by him. Not for the first time am I in the debt of Richard Helmholz for pointing out to me one of my errors.

The rule of law is rightly a phrase used to establish one’s bona fides as a defender of liberty. I owe my understanding of the phrase and its significance for liberty to the works of F.A. Hayek, Lon Fuller, Otto von Gierke, Frederic Maitland, John Selden, and Edward Coke, among others. I do not think that I have anything to say of particular importance, let alone original, about the idea of the rule of law beyond what I have learned from these scholars. It does, however, seem to me that the use of the phrase “rule of law” has today become, even among its defenders, increasing formulaic, as if it were a talisman sufficient to ward off all evils. The problem here, as I see it, is that the rule of law, while conveying a reference to arrangements necessary for liberty, is not free from a number of complications, even paradoxes, that ought to be pondered, and especially so by those who seek to defend the liberty made possible by the rule of law. In the second half of my Liberty Forum essay, I presented a few of those complications. There is no need to repeat them here, given this electronic format.

The intention of the essay was to elicit further discussion about the idea of the rule of law, rather than to provide answers. In fact, as is often the case in human relations, an answer to a problem leads to further problems. That this is so is not only a consequence of the unavoidable incompleteness of our knowledge; it is that, but it is more. The emergence of further problems is sometimes because of unavoidable antinomies. Some of these paradoxes or tensions are well known—for example, the relation between law and justice, or the place of equity in the law, or the scope of judicial discretion, or the acceptance of the relatively irrational judicial procedure of trial by one’s peers, and so forth. Because of the complications surrounding the idea of the rule of law, I hope that the responses to my original essay are but the beginning of a more extended discussion among the readers of Law and Liberty.

I am grateful for the opportunity to comment upon the responses to my essay by Russell Hittinger, Todd Zywicki, and Jacob Levy. Because I do not wish to take undue advantage of this opportunity to have the last word in this exchange of views on a topic that I find so complicated, my responses will be brief.

There is a great deal to say about Russell Hittinger’s well written “The Rule of Law and the Rule of Reason.” But to do so would be not to keep my promise to be brief. I readily acknowledge my admiration for both the architectonic and the accompanying moral cohesiveness of the exitus and reditus of Aquinas’ Summa Theologica, even though I cannot accept it. As I have commented elsewhere on the reasons for my admiration and disagreement,[1] I will say only one more thing here about Hittinger’s response. Although I am not certain, it nonetheless seems to me that the “reasonableness” of Coke’s “artificial reason,” which led to the procedure and principle of binding precedent in the finding of the law in the tradition of the common law, conveys an understanding of reason different from that of Aquinas. Rather than the central place of reason directing our action to achieving its proper end in contrast to will (what Hittinger describes as “the intellect’s governing what ought to be willed”), Coke and the legal tradition he has come to represent are concerned with establishing an internal consistency of the law. One sees this, I think, in Coke’s emphasis on due process in his commentary on the lex terrae of the Magna Carta (and also, of course, the “five knights” case that lead to the 1628 “Petition of Right”) to which I had previously alluded. The relevance here is not primarily historical; for, if I am correct, Fuller’s focus on procedural natural law, as well as Larry Alexander and Frederick Schauer’s argument on the “settlement function of the law,” represents a continuation of the common law’s understanding of the rule of law. As we should expect, numerous complications arise, for example, the necessary but admittedly problematic suspension of, or agnosticism toward, a legal promulgation of the common good as a requirement of the rule of law, as Fuller frankly acknowledged. I realize that this suspension is a vexing problem for defenders of liberty.

This problem surfaces, albeit implicitly, in Todd Zywicki’s response, “One Need Not Choose Between the Rule of Law and Constitutional Federalism.” I readily endorse almost all of Zywicki’s comments. However, I did not state nor do I believe “that one can have the rule of law or constitutional federalism, but not both.” I did say that legal pluralism presents problems for the equality and generality of the rule of law. To conflate recognition of problems with impossibility is not helpful. The problems are longstanding once one moves beyond commercial competition between relatively similar bodies of law to where the prevailing norms and expectations of one legal order are qualitatively dissimilar to those of another. This latter problem has long been formulated as the problem of the relation between the “law of the land” and the “special laws” of an association. Once again, one sees the problem in the 1879 Reynolds Case, and it is the problem of the Hobby Lobby and Little Sisters of the Poor cases, where there is a fundamental disagreement: namely, over when life begins. And as I also observed, one can say the problem exists over affirmative action laws in higher education. In these and other examples, one cannot be content with the formula, “judge-made law should by and large reflect prevailing norms and expectations that arise from pre-existing private ordering,” precisely because there is acute disagreement over those norms and expectations.

Defenders of freedom ought to be concerned with the liberty of these associations—what Michael Oakeshott described as “enterprise associations” organized around a common purpose. The problem posed by Oakeshott is not over the significance of the civil association for freedom. Here, I agree wholeheartedly with Zywicki. Rather, the problem becomes the relation between the civil association and the enterprise association, for example, between the state and the Little Sisters of the Poor. And this problem is compounded by the fact, recognized by Oakeshott, that it is unlikely that the state, as a civil association, has ever been or is capable of being purely a civil association. Thus, the vexing problem of the character of a or the common good has resurfaced. The only way out of this vexing problem is, as I suggested and as others before me have suggested, to have some kind of basic law of the land, one purpose of which is, as Hayek argued, to limit the reach of the state so that not only individual autonomy and integrity but also associational autonomy and integrity are not overtly violated. Even so, I am not so naïve as to think that even such a basic law of a limited state will provide a definitive solution to this problem.

Zywicki is certainly correct in his evaluation of volume one of  Harold J.Berman’s Law and Revolution, that is, “the existence of the polycentric legal order of medieval Europe was in fact the necessary condition for the development of the rule of law.” The question, however, is over the consequences of the Protestant Reformation as described by Berman in volume two. However unintended those consequences were, the shift from the doctrine of the two swords to that of the two kingdoms seems to me to have contributed to the undermining of the polycentric legal order of medieval Europe. For example, one will be hard put to find today an individual choosing to have his or her inheritance or divorce determined by the Church’s canon law so as to avoid what he or she may deem to be a less favorable legal ruling under the state’s law.

This latter observation brings us to Jacob Levy’s contribution, “The Rule of (Pluralistic) Laws.” I wish I had written, or had been capable of writing, Levy’s response. Since this is the case, I have very little to say about his response, other than to express again my agreement with it. The time is long overdue for a younger but already accomplished scholar like Levy to take responsibility for the editing and publication of Otto von Gierke’s Genossenschaftsrecht (and Gierke’s earlier work on Althusius, the more important part of which contains his magisterial examination of the medieval origins of federalism and the rule of law). It is my hope that doing so would provide a catalyst for further discussion of the problems surrounding the idea of the rule of law.

It is because I agree with Zywicki about the importance of the freedom of the individual that I sought to address a problem rightly raised by Levy. Levy acknowledges that one problem with associational liberty and legal pluralism is that a legal community can exert its influence in ways that result in “internal abuse of a variety of kinds.” For example, a Catholic couple might choose to be divorced under Islamic law as the latter makes divorce easier. Of course, to do so, the Catholic couple would have to convert to Islam. We immediately see here that we are dealing with competing legal bodies, which is much different from the competition among states for legal business, as what is involved is how the couple understands themselves, an understanding involving their salvation. What obstacles would the Christian church erect to make this conversation for this reason difficult? Needless to say, we know that Islam presents considerable obstacles for any Muslim choosing to convert to Christianity. And that is why I suggested that a basic law of the land would have to have some kind of right of exit without overly burdensome consequences. But let us be clear that such a requirement would represent the state’s reach into the internal life of the (religious) association.

Having clearly lacked the discipline to keep my promise to be brief, let us, I hope, at least agree about the existence of complications surrounding the idea of the rule of law. To recognize those complications should be in the service of better understanding the idea of the rule or law, and thereby to defend it in the face of ever increasing and new challenges to it.

[1] National Identity, Nationalism, and the Catholic Church