Getting to the Rule of Law: NOMOS L

2. The Limits of Process

32 2 THE LIMITS OF PROCESS ROBIN WEST Jeremy Waldron’s claim, as I understand it, is that the “Rule of Law” requires not only that the various laws that govern us consist of general, knowable rules with which we can all comply—the so-called formal requirements of the Rule of Law often identified with Lon Fuller’s notorious King Rex and his eight ways to fail to make law1 —but also that those laws be applied in a way that acknowledges our intelligence, respects our dignity, and broadly treats each of us as a worthy equal when it imposes its censorial and punitive will upon us.2 Waldron wants to think of these latter ideals as the “procedural” requirements of the Rule of Law, which, he claims, are not reducible to Fuller’s requirements and may on occasion conflict with them.3 So, he distinguishes the “formal” from the “procedural” requirements of the Rule of Law. The formal , Fullerian Rule of Law requires that, whatever their content, laws must have a certain form, while the procedural, Waldronian Rule of Law requires that, however formally virtuous they may be, those rules must be applied in a way that is procedurally just.4 The state may not, consistent with the Rule of Law thus understood, expose any of us to the risk of state-imposed punishment, liability , censure, or stigma without ensuring that the laws that have this consequence are applied against us in a fair way that respects our dignity.5 And what does that fairness require? Minimally, that we have the opportunity, should we be so targeted by the state, to participate intelligently in the legal system that has brought The Limits of Process 33 down its sword upon us.6 Our rules of procedure should all be interpreted and applied toward that end. So, the procedural Rule of Law requires, for example, that we be granted a fair trial, that we be assured, at that trial, of the assistance of an attorney, and that, through decent procedures, we have a chance to tell our side of the story, and to do so in accordance with rules of evidence that guarantee that only relevant information will be garnered by the state to secure a conviction or verdict against us, rather than any old piece of defamatory nonsense the state might feel free to unleash. More generally, the procedural Rule of Law requires that we be treated as an intelligent participatory member of law’s empire, even when the state seeks to use law’s sword to punish, stigmatize, or penalize us. The formal requirements broadly associated with Lon Fuller’s work protect our interest in law’s certainty and predictability and hence maximize our liberty and to some degree our dignity—they respect, for example, our agentic capacity to decide to be law abiding. Such a choice is available to us only if the laws we are being asked to abide by are in accordance more or less with Fuller’s eight formal requirements. This is not, however, sufficient, Waldron argues, for a Rule of Law regime. Such a regime must also be procedurally just. Again, these are not the same thing, nor do they stem from the same core values. The procedural Rule of Law respects not so much our liberty or our agentic capacity to choose for or against law abidance but rather our intelligence and our individual perspective: decent procedure should grant us an opportunity to participate as an equal and intelligent citizen in the system of law that inflicts its will upon us, and to do so in a way that allows our elaboration of our own perspective on both the rules being applied against us and our own story about the events that triggered the law’s hand. Finally, both contrast with a substantive understanding of the Rule of Law, argued by legal and political philosophers as requiring a state that protects property and contract rights and actively seeks to impose this understanding in emerging democracies interested in embracing a rule of law. Against such substantive and formal understandings, Waldron offers his procedural interpretation as a necessary complement. That’s the argument as I understand it. It would be churlish to object too strenuously to this humane 34 Robin West proposal to expand the Rule of Law of our imaginings to include a procedural dimension, particularly given...