3.2.2 Rule of Law

By Gianmarco Gori

On this page

1. Working definition
2. Examples of how ‘rule of law’ is used
3. The meaning of ‘rule of law’ in terms of MoE, affordance and LPbD
   1. Mode of Existence
   2. Affordance
   3. Legal Protection by Design

Working definition

1. The rule of law (état de droit, Rechtsstaat) is the implied philosophy of modern positive law
2. It refers to the institutionalisation of checks and balances within the state, making sure that countervailing powers keep each other in check, thus preventing arbitrary exercise of public power.
3. The difference between rule of law and rule by law refers to the difference between, on the one hand, a law that is both an instrument of public policy and an instrument of protection and, on the other hand, a law that is nothing but an instrument to achieve public policy goals.
4. rule of law implies legality, meaning that state powers can only be exercised within the bandwidth of the power attributed for specified and legitimate purposes, taking into account human rights while respecting independent judicial review. Rule by law may refer to legalism, where state powers can be and must be exercised in accordance with the will of the legislator, or to absolutism, where the state has discretionary powers to achieve their objectives as long as these powers have been attributed in accordance with specified procedures.
5. In Anglo-American legal philosophy rule of law is often equated with conditions such as accessibility, clarity, generality, non-contradiction, non-retroactive application, feasibility and foreseeability, coupled with the notion of an independent judiciary (Fuller). A difference is often made between a thin and a thick version, depending on whether conditions are more formal or more substantive. In the latter case more attention is given to human rights protection, including social and cultural rights. Others, however, pay keen attention to rights of contestation against the state (Dicey), and to procedural conditions that enable contestation and argumentation as core to the rule of law (Waldron), and to formal characteristics that can constrain what a legitimate legal rule can possibly be (Wintgens).
6. In continental European legal theory the Rechtsstaat or Etat de Droit can similarly be seen in a more formal or substantive way, with keen attention to the extent to which the powers of the state are limited, including the question of whether states have positive obligations to ensure respect for human rights in both the public and the private sphere.
7. Note that the rule of law, including the protection of human rights depend on positive law.
8. In the context of COHUBICOL we take a substantive and procedural perspective on the rule of law, integrating a formal perspective in a way that embraces legality while rejecting both legalism and arbitrary rule, incorporating ‘practical and effective’ protection of human rights and access to an independent court to ensure the contestability of actions or decisions in the public or private sphere that may violate rights or obligations.

Examples of how ‘rule of law’ is used

The concept of the rule of law is invoked in a manifold set of circumstances which can be distinguished according to a horizontal and vertical dimension. On one hand, the rule of law assumes a central relevance in the context of disputes which involve disturbances of the equilibrium between the powers of different legal institutions. In this sense, it constitutes a violation of the principles enshrined by the concept of rule of law the passing of a piece of legislation which undermines the independence of the judiciary, excludes some administrative powers from the scrutiny of the latter.

The rule of law has both horizontal and vertical dimensions.

On the other hand, in a vertical dimension, the rule of law is often referred to with respect to the legal constraints which inform the relations between legal subjects and the State. In this sense, the act of public officers which affects individuals fall outside of limits set by the rule of law any time that they illegitimately exceed the powers which are established in a foreseeable and contestable manner by positive law; or whereas an individual or a specific group is targeted by measures which violate the principle of legal equality before the law; or when those who are affected by legal power are not given the opportunity to challenge it through an effective legal remedy before a court of law. In this respect, the European Court of Human Rights has underlined that “one can scarcely conceive of the rule of law without there being a possibility of having access to the courts”.¹

The meaning of ‘rule of law’ in terms of MoE, affordance and LPbD

Mode of Existence

The contrast between the ideal of a “government of laws” and the “government of men” traces its roots to the origins of Western political-legal philosophy.² The elaboration of the doctrine of the rule of law, however, represents the response to a set of challenges which have surfaced only with the transition from the Medieval order to the rise of the modern State the development of the modern concept of positive law. While the former was characterized by the coexistence of a plurality of concurring sources of political and legal authority, the latter emerged through a process which led to the gradual centralization of power in the hands of a sovereign and the identification of law with the orders issued by the latter.³ The doctrine of the rule of law is characterized by a dual assumption: political pessimism and normative optimism.⁴ As much as a strong political power is considered an indispensable precondition for the establishment and maintenance of a stable order and, therefore, for granting protection to individuals, it also represents a threat for the latter: the more power tends to be concentrated, the more the risk of an arbitrary use of it.⁵ On the other hand, law is presented as the way out of such aporia: the inherent dangers of power can be addressed by channelling it through the forms of law, thereby making it predictable, stable, checkable, and contestable.

Especially from the late Eighteenth century, prompted by the advent of new constitutional experiences and by the establishment of national states, the concept of the rule of law became subject to a lively debate within different legal traditions⁶ and inspired the design of specific institutional architectures. On one hand, the various elaborations of the doctrine have been united by the common concern with the risk of arbitrary power. Moreover, a growing process of cross-influences between distinct political-legal frameworks have provided a shared vocabulary which has smoothed out many of the differences distinguishing the Continental and Anglo-American perspectives. On the other hand, the very success achieved by such theory has contributed to make the rule of law an “essentially contested concept”.⁷ The attempts to elaborate a taxonomy of the different accounts of the rule of law which characterize the contemporary debate has led to the identification of thinner and thicker version of a formal, substantive and procedural perspectives.⁸

Formal conceptions are distinguished by the relevance accorded to enacted law, and their formal requirements. The rule of law is a form of government constituted by a system of rules of law characterized by features such as clarity, generality, non-contradictoriness, non-retroactivity, stability and foreseeability. Substantive conceptions, on the other hand, identify the content of some rules as essential elements of the rule of law, i.e., the protection of fundamental rights and values, such as liberty, property, equality. Procedural conceptions emphasize the role played by courts of law and legal procedures in the making of law and in the shaping of legal protection.

Ultimately, the co-constitutive relations which intertwine the different accounts of the rule of law rest on a background of normative text-driven practices.

Whereas they often reflect different assumptions with respect to the concepts of legal norms, sources of law and positive law, the different accounts of the rule of law do not necessarily stand in a relation of opposition or mutual exclusion: on the contrary, in the context of COHUBICOL, we emphasize how the intelligibility of each conception depends on the others and how each of them synergistically contributes to picture different facets of the mode of existence of the rule of law. Moreover, we highlight how, ultimately, the co-constitutive relations which intertwine the different accounts of the rule of law rest on a background of normative text-driven practices.

In this perspective, we highlight how the concepts which weave the texture of the rule of law attain normative force through the acts by which the former are invoked and understood as reasons for action. In this light, those which distinguish the different accounts of the Rule of law can be appreciated as distinctions within the language of positive law that are drawn by the performative acts through which the latter is spoken. For instance, the formal requirements of legal rules are put into use and assessed in legal practice through the acts by which a party either claims or denies a distinct legal effect. The acts performed by legal actors within legal proceeding, in turn, are informed and made intelligible by the notions of formal rules, and the implications of the latter are drawn in the light of substantive notions derived from the vocabulary of legal rights.

Affordance

The mode of existence of the rule of law is strictly tied to different affordances which emerge at the interplay between the materiality of a specific information and communication technology (ICT) and the practices performed through such infrastructure by the community of jurists.

The invention and diffusion of the printing press has enabled the process of centralization of power which both accompanied the rise of the modern State and stimulated the debate on the rule of law.⁹ On one hand, the possibility to produce and disseminate legal texts enhanced the authority of the sovereign, the reach of its power and the gradual monopolization of the sources of law.¹⁰ At the same time, it has afforded and made increasingly necessary the development of a substratum of text-driven normative practices by the community of jurists.

The practices developed by jurists on the basis of texts both depend on and substantiate a shared understanding of “what counts as” positive law and what it is for the latter to rule. A point of convergence between different accounts of the rule of law is represented by the acknowledgment of the circumstance that the possibility for the law to rule depends on the prevalence, within legal institutions, of a certain theorical and practical stance towards the value of legality. In this sense, it is interesting to notice that Dicey interchanged the expression “rule of law” with “predominance of legal spirit”.¹¹ This emphasizes the constitutive role played by the shared pre-judices,¹² techniques and vocabularies which inform the self-perception of the role that jurists are called to play, and which orient their relation with the law as expressed into legal texts.¹³ The importance of such preconditions is made evident by all those circumstances in which, despite the apparent subsistence of formal, substantive and procedural requirements, the rule of law lacks effectiveness: “courts are just buildings, judges are just bureaucrats, and constitutions are just pieces of paper”.¹⁴

It is often difficult to account for the preconditions which afford the rule of law through the vocabulary offered by formal legal perspectives. The ultimate grounds on which the rules of law which sustain the rule of law rest, indeed, can hardly be accounted for in terms of necessary and sufficient conditions and expressed into formal rules.¹⁵ This circumstance, however, does not make the affordances of the rule of law something elusive, mysterious, or arbitrary, nor does it necessitate to search for further grounds outside the realm of law: on the contrary, it emphasizes the relevance of the interlocking practices through which jurists read and “let speak” texts. Such text-driven interactions afford, as it were, in practice, to ascribe meaning to the formally expressed rules, instituting a common frame of reference which makes their normative force binding, intelligible, predictable and contestable.

The circumstance that it is “the law” that which “rules”, in turn, affords a form of government in which power and its effects take the shape of legal power and legal effect, sharing the affordances of the medium through which the former is exercised, i.e., the language of positive law. For text-driven practices to afford the law to effectively rule, they must attain a certain degree of uniformity, constancy over time and prevalence within a certain juristic community. The very possibility to meaningfully contest an act of exercise of power, indeed, depends on the mastery of techniques of argumentation which presuppose that some shared assumptions are taken “as a matter of course”.

Legal Protection by Design

Since its origins, the aspiration of the doctrine of the rule of law has been that of designing a set of legal constraints aimed at affording protection from arbitrary power.

On one hand, efforts have been directed towards the implementation of a form of government in which power — in the words of Montesquieu — acts as “a check to power”.¹⁶ In this respect, the doctrine of the rule of law demands that sovereignty is internally differentiated into a plurality of powers and the subjection of the latter to relations of mutual interdependence. In this way, the production of legal effects depends on the correct performance of legal procedures which presuppose the concerted action of different bodies, thereby minimizing the risk that the exercise of power takes the form of a unilateral determination.

For power to produce legal effects, it must satisfy the formal, substantial and procedural requirements of legality set forth by the language of positive law.

On the other hand, the form of law offers a distinct kind of protection by subjecting power to a seamless set of constraints which channel its expression ex ante and ex post: for power to produce legal effects, it must take into consideration and satisfy the formal, substantial and procedural requirements of legality set forth by the language of positive law. Moreover, as they constitute the conditions for power to count as legal power, such requirements simultaneously represent grounds for contesting its exercise.

While the first elaborations of the doctrine of the rule of law were concerned almost exclusively with the risk of arbitrary exercise of power by the administration,¹⁷ a series of doctrinal positions,¹⁸ as well as constitutional architectures¹⁹ aimed at subjecting to legal constraints also the power of the legislator. In this respect, the reluctance to affect the sovereignty of the legislator, which was subject of an almost mythologic reverence,²⁰ was overcome especially after the advent of totalitarian regimes.²¹ After the Second World War, a new wave of constitutionalism, together with the institution of transnational legal orders, prompted the expansion of the concept of the rule of law in a both theoretical and practical perspective. Through the establishment of fundamental human rights both in national constitutions and transnational charters, and, most importantly, through the provision of legal mechanisms directed at ensuring their protection, all state powers have finally become subject to legal constraints.

The constitutionalization of fundamental rights has, as it were, enabled a “subjectification” of the rule of law, i.e., its reorientation towards the perspective of the legal subjects which find in positive law a source of empowerment and protection. The founding pillars of the doctrine of the rule of law, i.e., the principle of legality and equality, the formal requirements of law, the differentiation of powers, etc., have been translated into the language of legal rights, becoming grounds on the basis of which legal subjects can bring claims before impartial and accessible courts. In this perspective, as it is emphasized by the Latin maxim, “ubi ius ibi remedium”, the rule of law demands the establishment of a co-constitutive relation between positive law and legal remedies capable to effectively afford protection.

The effectiveness of remedies, in turn, implies the obstacles at an institutional level which risk jeopardizing legal protection, for instance an interference of the government into the activities and organization of judiciary, the lack of instruments for ensuring that the former complies with the orders of the latter. Legal protection is dependent on the effective possibility to establish a productive dialogue with legal institutions through the language of positive law, a dialogue in which it is possible to meaningfully articulate one’s claim for protection or challenge the exercise of legal power.

For such a dialogue to attain, it must not only be possible to address the subject who will make a binding legal decision, i.e., who will finally attribute legal meaning and determine its legal effects: it is also necessary that the decision-maker is capable of hearing and understanding the addressees.

This, once again, points to the central role played by the language of positive law and the text-driven interactions performed by the community of jurists through which it is constituted what counts as an effective remedy, a legitimate exercise of legal power or an arbitrary act.

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References

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