Willis, 'Theology,' and the Rule of Law

Introduction

John Willis memorably characterized himself as a '"government man," "a legislation man," and "a what actually happens man" ... [who tried] to talk administrative law with a civil service and political science accent.'¹ He railed against the widespread legal use of 'constitutional theology' and 'lawyer's values'; disparaged the modern 'cults' of individualism, participatory democracy, and openness; and bemoaned the growth of public law cases litigated by '"concerned" busybodies.'² From the perspective of one who thinks that 'theological' concepts such as the rule of law have value – and not just of the lawyerly kind – I propose to use Willis's writings as a launching pad to explore several of the shortcomings and strengths of the sort of functionalism and realism he espoused. It is a tricky terrain to traverse, and I will do my best to fulfil my role as a respectful critic and a reliable guide who uses both her feet and her head in the 'shadowy and arduous borderland between law, political science and public administration.'³

I begin by summarizing what constitutes the 'global and theological' and the 'specific and practical' for Willis.⁴ Here I suggest which aspects of Willis's thought we should take to heart and which aspects remain undertheorized as they relate to the rule of law. At the very least, I hope it will be clear that functionalist, positivist, and realist approaches tell us only part of the intricate story that is the rule of law. I will then argue that the rule of law is a complex synthesis of the two moralities that Lon Fuller has described as the moralities of duty and of aspiration.⁵ Contrasting Fuller's broader and deeply theoretical functionalism with Willis's more institutionalist approach will establish why we need to reunite these two approaches within the discussion of the rule of law; why this synthesis is relevant for a reconsideration of functionalism, positivism, and realism; and what it tells us about a rule of law regime. Fuller's understanding of law, I will argue, comports with certain aspects of the metaphor of 'institutional dialogue,' a metaphor that purports to describe the actual and ideal relationships between Canadian judicial and legislative institutions. While I endorse such a concept in theory, I concur with critics that the lack of empirical accuracy combined with normative disengagement renders it dangerously close to the 'theological.' At the end of the day, the rule of law is less theology than politics, and legal scholars must face up to the task of disclosing which political theory, on their understanding, best supports and endorses the rule of law and its associated practices. Indeed, I assert that the rule of law is a belief – a Fullerian politico-legal fiction – that requires the endorsement and practice of the three 'cults' Willis dismissed as dangerous and unpromising. In the final section, I explain why legal scholars need to attend to trends discussed in political theory or risk the outright dismissal of this important concept by other disciplines.

II The gospel according to John (Willis), abridged

A The Disciple of Functionalism

Willis's oeuvre displays a persistent and sardonic realism channelled into functional analyses. His basic institutional questions remain the problem of dividing up government powers and 'entrusting government work to those bodies which are most fitted to carry it out.'⁶ Such a clear concern for the distribution of power holds little regard for any judicial use in administrative law of concepts prefaced by the weasel-prefix 'quasi-' (e.g., quasi-judicial, quasi-legislative, quasi-constitutional), which only worked to fudge the distinction between the legislative and the judicial, to the detriment of administrative agencies of the time.⁷ Willis therefore argued for the proper recognition by the judiciary of the necessary existence of the modern administrative state, with administrative agencies performing a vital regulatory and intermediary function based on a combination of good judgement...