Getting to the Rule of Law: NOMOS L

1. The Rule of Law and the Importance of Procedure

3 1 THE RULE OF LAW AND THE IMPORTANCE OF PROCEDURE JEREMY WALDRON 1. Getting to the Rule of Law The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property to the extent that this can be done without seriously compromising social justice; and we want them to be governed in accordance with the Rule of Law. We want the Rule of Law for new societies—for newly emerging democracies, for example—and old societies alike, for national political communities and regional and international governance , and we want it to extend into all aspects of governments’ dealings with those subject to them—not just in day-to-day criminal law, or commercial law, or administrative law but also in law administered at the margins, in antiterrorism law and in the exercise of power over those who are marginalized, those who can safely be dismissed as outsiders, and those we are tempted just to destroy as (in John Locke’s words) “wild Savage Beasts, with whom men can have no Society or Security.”1 Getting to the Rule of Law does not just mean paying lip service to the ideal in the ordinary security of a prosperous modern democracy; it means extending the Rule of Law into societies that are not necessarily familiar with it; and 4 Jeremy Waldron in those societies that are familiar with it, it means extending the Rule of Law into these darker corners of governance, as well. When I pay attention to the calls that are made for the Rule of Law around the world, I am struck by the fact that the features that people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law, such as rule by general norms rather than particular decrees; rule by laws laid down in advance rather than by retrospective enactments ; rule under a system of norms that has sufficient stability (is sufficiently resistant to change) so as to furnish for those subject to the norms a calculable basis for running their lives or their businesses; rules by norms that are made public, not hidden away in the closets of bureaucracy; rule by clear and determinate legal norms, norms whose meaning is not so obscure or contestable as to leave those who are subject to them at the mercy of official discretion . These are formal aspects of the Rule of Law, because they concern the form of the norms that are applied to our conduct: generality, prospectivity, stability, publicity, clarity, and so on. But we don’t value them just for formalistic reasons. In F. A. Hayek’s theory of the Rule of Law, we value these features for the contribution they make to predictability, which Hayek thinks is indispensable for liberty.2 In Lon Fuller’s theory, we value them also for the way they respect human dignity: “To judge [people’s] actions by unpublished or retrospective laws . . . is to convey to [them] your indifference to [their] powers of self-determination.”3 (I shall say more about this in section 5.) In Fuller’s theory, too, there is a hunch that if we respect dignity in these formal ways, we will find ourselves more inhibited against more substantive assaults on dignity and justice. That has proved very controversial, but it is further evidence of the point that the interests of those who adopt a formal conception of the Rule of Law are not just formalistic. I have said that this formal conception is not what ordinary people have in the forefront of their minds when they clamor for the extension of the Rule of Law into settings or modes of governance where it has not been present before. Saying that is usually a prelude to a call for a more substantive vision of the Rule of Law. I am not as hostile as I once was to a substantive conception of this ideal.4 I believe that there is a natural overlap between The Rule of Law and the Importance of Procedure 5 substantive and formal elements, not least because—as we...