The Rule of Law and the Separation of Powers

Richard Bellamy, Richard Bellamy

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351540698
• Edition: 1
• Topic: Geschichte
• Subtopic: Weltgeschichte

The rule of law is frequently invoked in political debate, yet rarely defined with any precision. Some employ it as a synonym for democracy, others for the subordination of the legislature to a written constitution and its judicial guardians. It has been seen as obedience to the duly-recognised government, a form of governing through formal and general rule-like laws and the rule of principle. Given this diversity of view, it is perhaps unsurprising that certain scholars have regarded the concept as no more than a self-congratulatory rhetorical device. This collection of eighteen key essays from jurists, political theorists and public law political scientists, aims to explore the role law plays in the political system. The introduction evaluates their arguments. The first eleven essays identify the standard features associated with the rule of law. These are held to derive less from any characteristics of law per se than from a style of legislating and judging that gives equal consideration to all citizens. The next seven essays then explore how different ways of separating and dispersing power contribute to this democratic style of rule by forcing politicians and judges alike to treat people as equals and regard none as above the law.

Part I
Defining the Rule of Law

[1]
On the Moral Status of the Rule of Law

Matthew H. Kramer*

BY the phrase “the rule of law”, I mean nothing more and nothing less than the state of affairs that obtains when a legal system exists and functions. In Lon Fuller’s felicitous formulation (somewhat modified and amplified), the rule of law is the subjection of human conduct to the governance of legal norms through the operations of a legal system. Indeed, the rule of law as understood throughout this article is admirably encapsulated in Fuller’s eight principles of legality.¹ Under those principles, (1) a system of governance operates through general norms, and all or most of the norms partake of the following properties: (2) they are promulgated to the people who are required to comply with them; (3) they are prospective rather than retrospective; (4) they are understandable rather than hopelessly unintelligible; (5) they do not contradict one another and do not impose duties that conflict; (6) they do not impose requirements that cannot possibly be fulfilled; (7) they persist over substantial periods of time, instead of being changed with disorienting frequency; and (8) they are generally given effect in accordance with their terms, so that there is a congruence between the norms as formulated and the norms as implemented. Although these basic precepts of legality are never perfectly satisfied by any regime of law, the satisfaction of each of them to a substantial degree is essential for the existence of any legal system. The state of affairs constituted by the substantial fulfilment of those precepts is the rule of law.

Some of my previous writings in support of legal positivism have aimed to show that the rule of law is not an inherently moral ideal. The first main section of the current article will attempt to elucidate this point further and to parry some criticisms that might be leveled against it. Then, in the second main section, we shall examine some objections that have recently been lodged against my past arguments about the rule of law. Some powerful rejoinders by Nigel Simmonds to those arguments will provide occasions for clarifying and strengthening the legal-positivist position.

I. Reasons Rather than Probabilities

My challenges to the status of the rule of law as an inherently moral ideal have often focused on heinous legal systems in which the officials are driven by purely prudential motivations relating to the consolidation of their own power and the exploitation of the citizenry.² Nevertheless, as will become clear below, those challenges do not commit me to any view about the frequency with which the officials in iniquitous legal regimes are actually motivated by purely prudential considerations. On the one hand, the prevalence of prudential factors among the actual determinants of the conduct of officials in wicked regimes is almost certainly underestimated by many legal philosophers. On the other hand, any claim about the actual determinants of officials’ behaviour—whether in accordance or at odds with the view stated in the preceding sentence—is an empirical assertion that cannot be substantiated or disconfirmed through philosophical reasoning. To ascertain the considerations that in fact motivate evil officials, we would have to undertake a lot of social-scientific research within the legal systems of a wide range of countries. Such a project would undoubtedly involve complex questionnaires and interviews as well as careful observation of the patterns of official decisions and actions. After all, exactly what typically motivates nefarious legal officials is a matter that will hinge on contingent features of human psychology and sociocultural influences. Neither any legal-positivist philosopher nor any philosophical opponent of legal positivism has ever engaged in extensive research of the sort that would be required for the adequate investigation of those psychological and sociocultural phenomena. Yet the fact that jurisprudential theorists have not pursued the complicated empirical enquiries just mentioned is hardly due to remissness on their part. Rather, any enquiries along those lines would be largely or wholly beside the point, since the controversies between the proponents and the foes of legal positivism are philosophical rather than empirical. To be sure, the arguments mustered in those controversies do often rely on some empirical premises. However, the operative premises are at a very high level of abstraction and generality, and are therefore not the points at issue between the supporters and detractors of jurisprudential positivism; although those premises figure in controversies, they are not themselves controversial. Instead, the chief points of contention in debates over the soundness of legal-positivist theses are conceptual.

More specifically for our present purposes, the chief points of contention pertain to reasons-for-action. Here the phrase “reasons-for-action” refers not only to factors that actually do motivate people, but also to factors that would motivate them if they were to understand the serviceability of those factors for the furtherance of their general objectives. Because of this counterfactual element in many reasons-for-action, my reflections on the motivational underpinnings of the rule of law are not empirical. Those reflections are focused primarily on the sundry considerations that are promotive of the ends of wickedly self-interested officials, whether or not the considerations are actually perceived by the officials as so promotive. Irrespective of whether the considerations get taken into account when the evil officials choose how to behave, they are among the officials’ reasons-for-action if they would get taken into account by anyone who is unremittingly clearsighted in pursuing the officials’ aims.

At the same time, the conception of reasons-for-action that informs my discussions of the moral status of the rule of law does not encompass external interest-independent reasons—that is, reasons which stand as reasons for a selfish person Ρ regardless of whether they serve any of the objectives that are actually desired by P. Although interest-independent reasons not accepted as such by Ρ would of course have to be included in any comprehensive account of reasons-for-action, no such account is needed or envisaged here. I concentrate in this article on strictly prudential considerations simply because we are here pondering whether such considerations are sufficient to warrant a substantial degree of adherence to rule-of-law principles by selfishly power-hungry officials. For the contemplation of that issue, a restrictive conception of reasons-for-action is singularly appropriate.

Let us look, then, at the paramount question—a conditional question—that is addressed by my critique of the moral status of the rule of law. If the officials who operate a morally deplorable system of governance are motivated by purely prudential considerations relating to the consolidation of their own power and the exploitation of the citizenry, will they have solid reasons for abiding by rule-of-law requirements to a significant extent? In the light of what has been said in the last couple of paragraphs, we know that the solid reasons need not be grasped and heeded as such by the evil officials; but we also know that those reasons, insofar as they exist, are purely prudential. (As I have indicated elsewhere—IDLP, 66—we further know that the relevant prudential reasons must consist in something more than opportunities to deceive others by appearing to be acting morally. If one’s only prudential reason for engaging in a certain mode of behaviour Β lies in the likelihood that one will be perceived as acting on the basis of solicitude for the interests of others, then one’s devious conduct is in effect a testament to the moral significance of B.) What is of most importance for us to notice afresh is that the conditional question about the wicked officials’ reasons-for-action is not an empirical inquiry about their actual motivations. One can answer the question perfectly well through philosophical argumentation, without speculating about the frequency with which the officials in flagitious regimes are in fact animated by purely selfish concerns. An affirmative answer to my conditional question is perfectly consistent with the empirical claim that the officials in nefarious regimes are always or almost always motivated by non-prudential considerations (morally warped non-prudential considerations, of course, such as a concern for the purity of some racial or ethnic group). Although I do not subscribe to such an empirical thesis, a denial of it here would be wholly superfluous. My legal-positivist critique of the moral tenor of the rule of law does not depend on any such denial, for it does not contend that the factors which actually drive the conduct of repressive officials are of this or that particular type. Whatever those factors may be in any given setting, there will obtain strong prudential reasons for the officials to exert their sway through the rule of law—at least if they aspire to exert their sway for a sustained period over a society larger than a handful of families.

That such strong prudential reasons-for-action will indeed obtain is a proposition which my In Defense of Legal Positivism has endeavoured at length to substantiate—in order to bear out my positivist denial of the inherently moral character of the rule of law—with some lines of argumentation that will be laconically summarised here.³ Those lines of argumentation centre on the efficacy of law in guiding and channelling human conduct. For unjust officials and also for just officials, the advantages of law are threefold: it provides clear-cut direction; it fosters incentives for obedience; and it enables officials to coordinate their activities. A system of legal governance presents citizens with definite indications concerning what is demanded of them. Equally important, it creates strong incentives for citizens to comply with their rulers’ demands, because it tends to ensure that disobedient people are punished and that obedient people are left unpunished. Furthermore, it greatly enhances the coordination of the myriad instances of interaction among the officials themselves, who could not carry out a large-scale enterprise of governance over a sustained period of time without the regularity and the complicatedly interlocked expectations which a functional legal system makes possible. In sum, if power-hungry rulers are determined to exert and reinforce their repressive sway for a long period over a sizeable society, their efforts will be severely set back if they do not avail themselves of the coordination and the incentive-securing regularity made possible by the rule of law. Whether the requirements imposed and the objectives pursued by officials are products of moral concern or of exploitative selfishness, the officials can most effectively achieve their ends through the operations of a legal system.

Although the preceding paragraph supplies no more than a terse conspectus of some of the chief points for which I have argued at length elsewhere, it is sufficient for present purposes. Instead of elaborating those points anew, my discussion here will explore an ostensible problem or shortcoming which arises from the fact that my analysis of the moral status of the rule of law leaves open the possibility that wicked legal officials are never or almost never driven by purely prudential concerns. A critic might retort by questioning whether my conclusions about that moral status are really justified. Such a critic may well accept that there are solid prudential reasons for the exploitative officials to conform with rule-of-law requirements, but he will query the importance of such an observation. Given that my arguments concerning the officials’ reasons-for-action do not rule out the possibility that their motivations are in fact entirely non-prudential, the critic may feel that I have not genuinely cast doubt on the inherently moral character of the rule of law. If the animating concerns of evil officials in their compliance with rule-of-law precepts are not the prudential reasons for such compliance, and if as a matter of fact those animating concerns are always non-prudential, then why should we not regard the rule of law as a morally pregnant state of affairs? Though such a state of affairs is not always associated with morally worthy effects, its actual motivational underpinnings are (ex hypothesi) always moral in the sense of being non-prudential. Why then, the critic may ask, should the legal-positivist assessment of the rule of law not be discounted as something that lacks any purchase on the real world?

One quite minor weakness in an objection of this sort, of course, is that it treats a possibility as if it were an established actuality. My legal-positivist approach to the rule of law—which addresses the conditional question specified at the beginning of the antepenultimate paragraph above—has left open the possibility seized upon by the hypothetical critic, simply because my approach does not commit me to an...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction: The Rule of Law as the Rule of Persons
• PART I DEFINING THE RULE OF LAW
• PART II THE RULE OF LAW AND JUDICIAL DISCRETION
• PART III THE SEPARATION OF POWERS
• PART IV PARLIAMENTARISM AND FEDERALISM
• Name Index