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Published online by Cambridge University Press: 09 May 2019
The corruption of the rule of law is an ambiguous phrase. It can refer either to the corruption of the value of the rule of law or to the corrupting effect that the commitment to the rule of law produces. This essay explains how both can be the case. The rule of law is one of a cluster of values that liberal political theory requires a morally legitimate government to exemplify. Thus, the rule of law is a component part of a just political structure. However, the phrase "the rule of law" is often used colloquially to refer to most or all of the cluster of liberal values. When used in this way, a duty to obey the law often attaches itself to the concept of the rule of law. It is the association of this duty with the concept of the rule of law when used in its narrow, literal sense to refer to only one of the liberal values that corrupts both those who are committed to the rule of law and the respect for the value itself.
The author is indebted to David Schmidtz for stimulating his thinking on this topic and to the other contributors to this volume, the anonymous referee, and Ann C. Tunstall of Remedy Pharmaceutical, Inc. for their insightful comments on a draft of this essay. The author also wishes to thank Robert Van Someren Greve for his invaluable research assistance, and Annette Hasnas of the New School of Northern Virginia and Ava Hasnas of the Oakwood School for giving him personal experience with the dangers that arise if one does not pay very strict attention to the requirements of the rule of law.
1 See 16A A.R.S. Rules Crim. Proc., Rule 12.1.
2 See Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 11–12, 32.Google Scholar
3 Allan, T. R. S., The Sovereignty of Law: Freedom, Constitution, and Common Law (New York, NY: Oxford University Press, 2013), 89–92.CrossRefGoogle Scholar See also Bingham, Tom, The Rule of Law (London: Penguin, 2010), 67Google Scholar (building respect for fundamental rights into the concept of the rule of law), and Cass, Ronald, The Rule of Law in America (Baltimore, MD: Johns Hopkins University Press, 2004), 131Google Scholar (building a commitment to the preservation of private property rights into the concept of the rule of law).
4 Waldron, Jeremy, “The Concept and the Rule of Law,” Georgia Law Review 43, no. 1 (2010): 3.Google Scholar
5 The rule of law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary power on the part of government.” Dicey, A. V., The Law of the Constitution, ed. Michener, Roger E. (Indianapolis, IN: Liberty Fund, 1982), 120.Google Scholar
6 Hayek, F. A., The Road to Serfdom (Chicago: University of Chicago Press, 1944), 72–73.Google Scholar
7 Hayek, F. A., The Constitution of Liberty (Chicago: University of Chicago, 1960), 205.Google Scholar
8 Fuller, Lon, The Morality of Law, rev. ed. (New Haven, CT: Yale University Press, 1969), 39.Google Scholar
9 See, e.g., Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 270–71:Google Scholar
A legal system exemplifies the Rule of Law to the extent (it is a matter of degree in respect of each item of the list) that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and b) do actually administer the law consistently and in accordance with its tenor.
See also MacCormick, Neil, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005), 17CrossRefGoogle Scholar (The rule of law obtains when “there is a legal system composed principally of quite clearly enunciated rules that normally operate only in a prospective manner, that are expressed in terms of general categories, not particular, indexical, commands to individuals or small groups singled out for special attention . . . The rules should set realistically achievable requirements for conduct, and should form overall some coherent pattern, not a chaos of arbitrarily conflicting demands”); Hart, H. L. A., “Problems of the Philosophy of Law,” in Essays in Jurisprudence (Oxford: Oxford University Press, 1983), 88, 114CrossRefGoogle Scholar (The rule of law requires that “the law, except in special circumstances, should be general (should refer to classes of persons, things, and circumstances, not to individuals or to particular actions); should be free from contradictions, ambiguities, and obscurities; should be publicly promulgated and easily accessible; and should not be retrospective in operation”). See also Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 207–209.Google Scholar
10 This is not intended to exclude common law or suggest that law is necessarily legislative in nature, merely that the law results from processes accepted as producing binding law.
11 Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), 92–93.Google Scholar
12 Fuller, Morality of Law, 81.
13 Jeremy Waldron, “Rule of Law,” sec. 5.3, https://plato.stanford.edu/archives/fall2016/entries/rule-of-law/. Waldron warns that any effort to pack substantive values into the concept of the rule of law
sounds the analytic danger signal. Once we open up the possibility of the Rule of Law’s having a substantive dimension, we inaugurate a sort of competition in which everyone clamors to have their favorite political ideal incorporated as a substantive dimension of the Rule of Law. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals (sec. 5.3).
14 Wallace Tashima, A., “The War on Terror and the Rule of Law,” Asian American Law Journal 15, no. 1 (2008): 264.Google Scholar
15 Hayek, Constitution of Liberty, 155.
16 Ibid., 153.
17 Ibid.
18 Waldron, “Rule of Law,” sec. 6.
19 Bingham, Rule of Law, 38.
20 Hayek, Constitution of Liberty, 208.
21 Hart, “Problems of the Philosophy of Law,” 115.
22 Fuller, Morality of Law, 42.
23 Ibid., 162.
24 Finnis, Natural Law, 272.
25 Raz, Joseph, The Authority of Law, 2d ed. (Oxford: Oxford University Press, 2009), 221–22.Google Scholar
26 Hayek, Constitution of Liberty, 155.
27 Ibid., 153.
28 Waldron, “Rule of Law,” sec. 6.
29 Kolendar v. Lason, 461 U.S. 352, 358 (1983).
30 Grayned v. City of Rockford, 408 U.S. 104 (1972), 108–109.
31 This is known as the rule of lenity.
32 See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) and City of Chicago v. Morales, 527 U.S. 41(1999).
33 World Justice Project, “What Is the Rule of Law?” https://worldjusticeproject.org/about-us/overview/what-rule-law (Last visited July 14, 2017).
34 Allen, Sovereignty of Law, 91.
35 Ibid., 90–91.
36 Raz, Authority of Law, 210–11. Raz decries this use of the phrase the rule of law, arguing that it renders the concept so malleable as to be vacuous. He observes that “[n]ot uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated,” and claims that there has been “a similar perversion of the doctrine of the rule of law” (210). This critique is echoed by Judith Shklar, who contends that “[i]t would not be very difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians” (Judith N. Shklar, “Political Theory and the Rule of Law,” in Allan Hutcheson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology [Toronto: Carswell, 1987], 1). Although there is much to be said for this criticism, it is beyond the scope of the present work. Hence, its exploration must be left for another day.
37 Allen, Sovereignty of Law, 128.
38 Marmor, Andrei, “The Ideal of the Rule of Law,” in Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory, 2nd ed. (Malden, MA: Blackwell, 2010), 666.CrossRefGoogle Scholar
39 Raz, Authority of Law, 212. Raz is describing, not endorsing this understanding of the rule of law.
40 Waldron, “Rule of Law,” sec. 6.
41 See Hasnas, John, “Is There a Duty to Obey the Law?” Social Philosophy and Policy 30, no. 1 (2013): 450.CrossRefGoogle Scholar
42 Regardless of whether the rule of law is implicated, one could argue that no legal system can survive if individual citizens are generally authorized to elevate their conception of justice over that embodied in the law. But that is not what one is arguing when one claims that grand jurors are allowed to decide whether to indict on the basis of their personal conception of justice. The grand jury represents a circumscribed area within which Anglo-American criminal law permits the exercise of personal judgment as a means of preventing government oppression. Far from permitting citizens to determine whether to obey the law on the basis of their own consciences, it permits the exercise of individual conscience only when a citizen is called upon to play a law enforcement role.