Law, the Rule of Law, and Trigger Laws
According to one prevalent narrative, the rule of law is a bloated, rhetorical concept, suited more for condemning what one does not like and applauding what one does, than for any precise theorizing or careful analysis. Footnote #1 content: See BRIAN Z. TAMANAHA, ON THE RULE OF LAW 3 (2004) (“In view of this rampant divergence of understandings, the rule of law is analogous to the notion of the “good,” in the sense that everyone is for it, but have contrasting convictions about what it is.”); Andrei Marmor, The Ideal of the Rule of Law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 666, 666–67 (Dennis Patterson ed., 2010) (“As soon as we begin to think about the rule of law as an overall normative ideal, some dangers lurk in the background. One obvious danger is to confuse the ideal of the rule of law with an ideal of the rule of good law.”); Iain Stewart, Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘The Rule of Law’, 4 MACQUARIE L. J. 187, 189 (2004); Joseph Raz, The Rule of Law and Its Virtue, in ARGUING ABOUT LAW 181 (Aileen Kavanagh & John Oberdiek eds., 2009); Richard H. Fallon Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1 (January 1997). It attracts enthusiasm in the abstract, but proves unhelpful for evaluating specific laws and institutions. Moreover, the wide scope of its abstract appeal can be dangerously imperial. It encourages one to treat values like human rights and democracy as mere appendages to a rule of law society, Footnote #2 content: See David Kairys, Searching for the Rule of Law, 36 SUFFOLK U. L. REV. 307 (2003). or else, to reduce the rule of law to a system of good, wise laws—one that realizes extrinsic, independently articulable values like democracy and human rights. Footnote #3 content: See Marmor, supra note 1, at 666.
Framing the problem this way suggests a natural solution. The right response to the conceptual extravagances of the rule of law, according to the going narrative, is to cut the concept free from the airy domain of values. Footnote #4 content: See Andrei Marmor, The Rule of Law and its Limits, 23 L. & PHIL. 1 (2004). One should adopt a sober minimalism. The distinctive core of the rule of law should be salvaged from its excesses. And the core, in this narrative, almost always turns out to be a list of (mostly) formal properties of rules, akin to Fuller’s list of rule of law principles—things like generality, clarity, and prospectivity. Footnote #5 content: See LON L. FULLER, THE MORALITY OF LAW 39 (rev. ed. 1969).
This narrative is plausible and venerable, but questionable. It assumes that a far-reaching and contested ideal should be pared down and replaced with a more determinate and normatively limited concept (why couldn’t the ideal be vindicated in all its breadth?), and it further assumes that either democracy or the rule of law must reduce to the other (why couldn’t they reinforce each other while remaining distinct?). If these assumptions are questioned, a different outlook on the rule of law emerges according to which the chief question is not about how to pare it down, but how to give a principled account of it, such that it is worth distinguishing from other ideals, notwithstanding its expansive, sometimes inchoate scope. After all, some ideals have sweep.
My project in this paper is to motivate this latter way of thinking about the rule of law and to show that the challenge it presents can be attractively met. Footnote #6 content: See Judith Schklar, Political Theory and The Rule of Law, in THE RULE OF LAW: IDEAL OF IDEOLOGY 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987). My goal will not be, at each step, to refute the narrative I started with above, but rather to substan-tiate a counternarrative that would treat the rule of law in a markedly different way.
To this end, the first step is to step back and note that the disagreement about the rule of law is just one manifestation of the even more fundamental disagreement about the essence of law. Is law a moral phenomenon—necessarily an activity with moral aspirations and constraints, or a tool to make certain things happen, hopefully for good, but just as possibly for bad? Footnote #7 content: See Raz, supra note 1 at 181-192. Following “downstream” from this question, discussions about the rule of law are of a piece with, or perhaps encompass, ongoing disputes about the relative merits of rules and standards, Footnote #8 content: See generally F.A. HAYEK, THE ROAD TO SERFDOM (1944); Seana Shiffrin, Inducing Moral Deliberation: On The Occasional Virtues of Fog, 123 HARV. L. REV. 1214 (2010). law and equity, Footnote #9 content: See Grupo Mexicano de Desarrollo v. Alliance Bond Fund, 527 U.S. 308 (1999); Lawrence Solum, Equity and the Rule of Law, in THE RULE OF LAW: NOMOS XXVI 120 (Ian Shapiro ed., 1994). substantive due process and history, legislatures and courts, Footnote #10 content: See Richard Fallon, Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 TEX. L. REV. 487 (2018); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). and textualism and purposivism. Footnote #11 content: See Mark Greenberg, The Standard Picture and Its Discontents, in OXFORD STUDIES IN PHILOSOPHY OF LAW (Leslie Green & Brian Leiter eds., 2011).
If this is right, and the root of these rule of law controversies is a deeper one about the nature of law, then it may be methodologically fruitful to start with a theory of law, and then to develop a corresponding theory of the rule of law, and finally apply the theory to actual law. The main argument of this paper follows that course.
First, I briefly introduce positivist views of law in Section I.A. Then, in Section I.B, I briefly argue for, but mostly outline, a non-positivist view of law. According to this kind of theory, law is, by its very nature, constituted by morality. The specific theory I favor focuses on the way that law guides conduct by creating obligations. Whereas promises bind only the promisor, and orders bind only the recipient of the order by virtue of an asymmetrical relation of authority, law is created by a community and binds it as well.
Second, in Section II, I illustrate what the rule of law looks like according to this theory of law. I argue that the rule of law is, as some other commentators have claimed, that by virtue of which the law succeeds at its goal of moral improvement. Since the goal of the law is to create new moral obligations, the rule of law includes those practices that identify and circulate reasons for morally valuable obligations. These practices answer to what I call the articulation principle. According to this principle, a legal system must show its work by supporting and exhibiting the reasoning that different legal actors are obligated to undertake.
Finally, in Section III, I apply this theory of the rule of law to trigger laws— laws with legal content that is conditioned on that very content being found constitutional by the Supreme Court. I argue that these laws offend the rule of law by violating the articulation principle.
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