The Rule of Law and the Legacy of Modernism
A knife is not a knife unless it has some ability to cut. The law to be law must be capable of guiding behavior, however inefficiently. Like other instruments the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put. It is the virtue of efficiency; the virtue of the instrument as instrument. For law this virtue is the rule of law.1
– Joseph Raz, ‘The Rule of Law and Its Virtue’
All law is ‘situational’ law.2
– Carl Schmitt, Political Theology
We are not done with modernism, nor it with us. In both its normative and descriptive dimensions, we are still struggling with the critique of modernity. What to do about the pitiless success of our modern machine-life, and the pitiful failure of our modern spirit-life? Standard conceptions of the rule of law continue to rely in some important way on positivism’s approach to judicial method, putting its faith in the tenets of modernity. And, on the other hand, the critics of modernity continue to confront it, putting their faith by and large in some version of romanticism: the appeal to some external force, beyond the law, which will either unite and synthesise these oppositions – as is the case in early romanticism and still dominates the field of law and literature – or to a kind of passion that will triumph over these oppositions – as is the case in late romanticism and in what is sometimes called ‘reactionary modernism’. Either way, what we see is a vision of transcendence and a belief in the possibility of legal salvation. Yet it seems to me that the distinct implications of the modernist moment for how we are to understand legal judgment – what it changed that cannot be unchanged, what it dismantled that cannot be reconstructed – has been largely forgotten by both sides. After modernism, is it even possible any longer to believe in either side? What would a reconciliation of contradictory viewpoints look like? Even in legal texts which would appear to demand such a thorough-going reflection, there has been a tendency to conflate modernity and modernism rather than seeing one as a response to the other.3 Carl Schmitt and Hans Kelsen are again quite exemplary here: in continuing to fight the Enlightenment and the Reformation one last time it does not seem to have occurred to them that modernism – the time in which they were actually living – might provide a new perspective on these questions.
So my task now is to show that the crisis of modernism is still being played out and still being side-stepped in legal theory. This chapter will take us away from the historical and textual analysis of the surrounding chapters in order to provide some necessary legal context. In the first part of this chapter I attempt to show the conventional connection between the rule of law and positivism, and the origin of the critiques of positivism in the crisis of modernity. Despite the critical question of their relationship, in general the supporters of the rule of law and the critics of positivism have had nothing to say to each other. On rare occasions where there has been an attempt to bring these two quite different traditions together, as in recent work by Roger Berkowitz on the origins of positivism, Brian Tamanaha on the rule of law, or William Scheuerman on Schmitt, the second part of this chapter will argue that their work has been marred by a blinkered analysis of that history. A closer attention to that history will show us (contra Tamanaha) the seriousness of the challenge the modernist moment poses to the rule of law, but will also permit us to see (contra Berkowitz) that more than one reaction is available.
Troubling the rule of law
Put simply, positivism claims that objective meaning can be derived from established legal rules such that judges and other interpreters are able to apply them in a predictable and pre-determined fashion – not all the time, of course, but enough of the time to be treated as typical of the nature of interpretation. In the ‘normal case’, as H.L.A. Hart insists in his 1957 locus classicus on the subject, the meaning of the rules is inflexible of application and neutral in origin. It is just what the words mean.
[T]o insist on the utilitarian distinction is to emphasize that the hard core of settled meaning is law in some centrally important sense and that even if there are borderlines, there must first be lines. If this were not so the notion of rules controlling courts’ decisions would be senseless as some of the ‘Realists’ – in their most extreme moods – and I think on bad grounds – claimed.4
This claim as to ‘the hard core of settled meaning’ embodies both a theory of interpretative method and a theory of interpretative legitimacy; it seeks to explain what judges ‘do’ and why they should do it. In his oft-quoted remarks on taking office as Chief Justice of the High Court of Australia in 1952, the great jurist Sir Owen Dixon unites these descriptive and normative features.
It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism … The court and the legal profession stand as the necessary foundation of any community … Lawyers are often criticized because their work is not constructive. It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady.
The authority of the courts of law administering justice according to law is a product of British tradition and it is for us to maintain it. There is I believe a general respect for the Queen’s courts of justice which administrate justice according to law, and I believe that there is a trust in them. But it is because they administer justice according to law.5
That repeated use of the phrase ‘administering … administrate … administer justice according to law’ tells us that justice plays a circumscribed and specific part in this conception of law. Whatever else it might mean in other contexts, in the context of legal institutions it means the neutral application of pre-existing rules. A judge who departed from his duty in this respect – who was tempted for whatever reason to dispense justice but not administer it ‘according to law’ – would be undermining the ‘foundations and framework’ of law.
Admittedly the rule of law is a broad and somewhat nebulous concept. Procedural theories insist that the rule of law is to be understood as principles concerning the process or method by which decisions are made without limiting in any way the content of those decisions; substantive theories, on the other hand, insist that the rule of law, properly understood, must protect particular interests and rights.6 Ronald Dworkin, for example, expands the idea of the rule of law to include a wide range of ‘substantive’ or rights-based guarantees.7 Dworkin has been particularly critical of writers who distinguish between the rule of law and justice.
The rule of law … does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.8
Either substantive or procedural approaches may in turn range from narrow to broad conceptions of what kinds of legal practices or rules the rule of law demands. Most famous – or infamous, depending on your perspective – was that of the New Delhi Declaration of the International Commission of Jurists.
The Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.9
But these broad and substantive visions of the rule of law are suppletive. While they reflect an expanding circle of expectations implicit in ‘the rule of law’, they add to the central features which all share, most importantly, a commitment to protecting values of predictability and certainty in the law.
This much was evident as far back as Aristotle, who clearly distinguished rule by ‘the best men’ from rule by ‘the best laws’ – exactly the choice that the medieval, vigilante or romantic traditions invert. The intrusion of subjectivity and discretion into decision-making was for Aristotle precisely the unwelcome influence of ‘a wild animal’ – meaning a human being – whose ‘appetite’ and ‘passion’ would undermine the process of pure reason.10 For Aristotle then, the neutral application of prior laws by a process of pure deduction was necessary to a sound polity. As the rule of law took shape in the eighteenth and nineteenth centuries, and under the influence of contemporary politics and history, it came to express other concerns too – the tripartite division of powers, habeas corpus, and law’s equal application to all persons. But it never lost its primordial interpretative concerns. So in A.V. Dicey, the greatest of nineteenth-century writers on the rule of law, we see a growing emphasis on the sanctity of individual and private rights, and of the importance of ‘equality before the law, or the equal subjection of all classes to the ordinary law of the land’. Nonetheless, his primary definition of the rule of law still centred on ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power’ such as by the exercise of discretion in interpretation.11
This idea of the rule of law reached its quintessential statement in Friedrich Hayek.
[S]tripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.12
Not all writers have equated this approach to rules with justice. Joseph Raz, for example, drawing on Hayek, defines the rule of law as embodying two propositions: that all people, including governments, should be ruled by ‘the law’, and that this ‘law’ should be capable of guiding their actions.13 In this way too the objective prior existence of determinate legal rules is what guarantees law’s certainty, generality and equality.14 Raz argues that telling people in advance the consequences of their actions (be those consequences marriage, pension, fine or death) guides their behaviour and so helps the law accomplish its purposes regardless of whether those purposes are morally bad or morally good. The rule of law, says Raz, is like the sharpness of a knife: it makes law effective but it does not make law good. The rule of law gives law the clarity which allows it to achieve its ends, whatever they may be. ‘Thus the rule of law is the inherent virtue of law but not a moral virtue as such.’15
Nonetheless, for most writers in this tradition, the rule of law is itself the expression of justice at least as it is to be found in the law and as such far from ‘morally neutral’. For Aristotle, this is simply what justice means. ‘When men seek for what is just they seek for what is impartial; for the law is that which is impartial.’16 In Hayek, the point is not definitional but normative. The certainty which comes of always and only applying ‘rules fixed and announced beforehand’ allows individuals to ‘plan [their] own affairs’ and so is a necessary element of their freedom, even within law’s constraints. Lon Fuller makes a similar point in emphasising that such laws can, while laws which fail to meet these criteria cannot, form part of the practical reasoning that guide’s men’s conduct.17 But he goes much further in defending the substantive good that comes of adhering to a procedural rule of law, arguing that the clarity and logical consistency upon which the rule of law places such a premium makes it harder to enact ‘evil’ laws and exposes the corruption of the legal system. A government which is committed to the rule of law cannot just throw dissidents into jail when it finds them a nuisance. It must articulate, clearly, prospectively and publicly, the general principles that have been breached by their actions. ‘If the Rule of Law does not mean this’, says Fuller, ‘it means nothing’.18 As Colleen Murphy argues, this exposes to public scrutiny and resistance the government’s own actions, a resistance which in the real world is increasingly countered by resort to extra-legal means.
That is when we conduct thought experiments in which we try to imagine in sufficient detail a dictator pursuing unjust ends by means of a legal system that is fully compliant with the Fullerian account of the rule of law, at a certain point our imagined case loses any plausibility. As Jeremy Waldron writes … ‘those who reflect seriously on humanity’s experience with tyranny know that, in the real world, this problem of the scrupulously legalistic Nazi is at best a question about the efficacy of cosmetics’. That is, it is only if we think of the rule of law as something ‘cosmetic’ that it is compatible with the pursuit of deeply immoral ends. Thus, it is unsurprising that historically there has always been a fundamental tension between the rule of law and repressive rule or the pursuit of unjust ends.19
The rule of law in this way promotes justice substantively as well as procedurally.20
Rules, practices, procedures. No matter how expansive – or how limited – the notion of the rule of law becomes, the core principles which are shared by all these writers are deeply bound up in positivist theories of legal certainty. These theories form either the necessary condition of what it means to do justice ‘according to law’ or the sufficient condition which exhausts the relationship of justice to legal judgment. Justice either begins with the rule of law or ends with it. And similarly the rule of law either begins with fixed, announced and objective rules – or ends with them.
Yet at the same time the critique of this claim for a rational, abstract and certain objectivity has only multiplied with the passing years: from Realists21 and Marxists22 to feminists in the 1970s, race theorists and critical legal studies in the 1980s, and post-structural theories in the 1990s. And in some respects all these critiques build on the crisis of modernity and the rejection of the positivist project by Schmitt, the New Romantics and the reactionary modernists. Hart famously distinguishes the ‘core’ of legal meaning from the ‘penumbra’, in which the rules do not give us a clear answer to a problem of legal interpretation. As David Dyzenhaus notes, Hart’s penumbra, like Hans Kelsen’s grundnorm, opens up ‘a mini-state of emergency’ within positivist theory because it is ‘not resolvable by law’.23 Indeed, Hart makes explicit its political as opposed to legal content, which is to say its exceptional and emergency character. He insists that, while a decision-maker could well resolve a penumbral problem by considering the ‘purposes’ of the law, those purposes would not necessarily be either legal or moral.
The word ‘ought’ merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral. We say to our neighbour, ‘You ought not to lie,’ and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, ‘I ought to have given her a second dose.’24
As Dyzenhaus argues, the rule of law can survive only if the boundary between core and penumbra can be maintained inviolate. As we saw in Chapter 3, Schmitt’s transition in 1922 from dictator to theologian reflected his understanding that it could not. Now it might be argued that Schmitt’s critique of the rule of law is relevant only in ‘the state of exception’. Certain elements of Political Theology lend themselves to such an interpretation. He argues that ‘the decision that a real exception exists cannot therefore be entirely derived from a norm’ but must be the result of a ‘decision that frees itself from all normative ties and becomes in the true sense absolute’. In other words, he argues that rules and the rule of law cannot tell us ‘whether this normal situation actually exists’.25 At the same time he is careful to emphasise that this normal situation, in which rules and practices function in a predictable way, is both the aim and the standard of the legal order. Like Kelsen or Hart, one might conclude from this that the exceptional circumstances that override normal legal principles are, well, exceptional: discretionary freedom in one realm would not undermine standard constraints of legal interpretation in the other.
But the better view is surely that Schmitt’s critique of the rule of law went much further. In The Dictator, Schmitt ‘argues that the omnipresent possibility of a gap between legal norms and the manner in which they gain realization in the concrete world is precisely where the essence of dictatorship lies. An analysis of the problem of dictatorship is crucial for acknowledging that the realization of a legal norm rests unavoidably on forms of (normatively unregulated) discretionary action’.26 But in Political Theology, the anomalous moment of dictatorship becomes pervasive. Since the power of the sovereign is not limited to ‘he who decides in the state of exception’ but precisely ‘he who decides on the state of exception’, it reveals an ever-present potential for free decision that permeates the legal system.27 Since there is no norm that can determine in advance the existence of an exception, legality is at every moment vulnerable to being overridden in the unpredictable name of necessity or of justice. In Political Theology Schmitt is explicit about this broader implication.
All law is ‘situational’ law. The exception reveals most clearly the essence of the legal authority. The decision parts here from the legal norm, and … authority provides that to produce law it need not be based on law.28
So the exception is not a marginal feature of legal order. On the contrary, it reveals the essence of all law once the façade of liberal legality is stripped away. Combined with his decisionism, that is, his recognition that norms do not exist without the particular judgments of particular agents, Schmitt concluded that the state of emergency, far from being an anomaly capable of being contained within, and defined by, the legal structure, ultimately white-anted it. In Law and Judgment, his first work of legal theory, written in 1912, Schmitt had already insisted that ‘all existing legal concepts are indeterminate legal concepts’ – the ascription of a consequence by a concrete legal actor precedes the norm and does not simply follow it.29 Already then, Schmitt thought that the power of decision was not capable of normative curtailment. Far from being limited to a civil war or invasion, Schmitt thought that an emergency lurked within every judgment. Coiled within each and every moment of legal judgment or interpretation lay a fundamental indeterminacy constituted by ‘the concrete exception’30 and incapable of being foreseen or limited by a structure of rules. That, accompanied by his romantic hostility to the moral poverty of positivism, led Schmitt not only to reject the rule of law as illogical but to embrace that rejection with uncompromising rigour.
The sovereign emerges as a Christological figure, anomic, ecstatic, original and personal. He does not follow the law: he performs miracles.31 But it is important to recognise that this vision, while it gives voice to a normative argument and a historical one, is also analytic. Schmitt was addressing the inherent problem of what he saw as the endemic undecidability of the law, by binding all law to the violence of the decision and then safeguarding that violence in the singular figure of the sovereign who both belongs to the law and yet transcends it.32 In Political Theology, although less clearly in The Concept of the Political, this transcendence is defended in the name of the law. The pure decision recognises and responds to the state of exception, Schmitt argues, but at the same time it acts in the interests of legal order although it is not derivable from a rule of any kind.33 ‘In a legal sense’, writes Schmitt, ‘there is still order in it even though it is not a legal order’.34 Thus the sovereign acts freely in the name of Recht or droit or spirit of the law and cannot be subject to its gesetz or loi or letter. For Schmitt the Rechtstaat or positivist rule of law, committed as it is to an anti-theology governed exclusively by ideas of objectivity, neutrality and due process, was the ‘national poison’ which refused to face up to the necessity of this higher and finer law.35 The liberal rule of law, like liberalism itself, was a form of lying – in dishonestly denying the ultimate and inescapable sovereign power of the decision-maker – and a form of cowardice – in giving up on the power to do justice instead of law.36
If a practical illustration were required, the history of Article 48 of the Constitution of the Weimar Republic evidences the power of the exception to comprehensively devour the structure of norms it is meant to protect. In the period from 1918–33 it was invoked hundreds of times by politicians of all persuasions in a multitude of circumstances including not only escalating violence, but general strikes, economic collapse and political stalemates. In 1932 it was used to legitimate a federal coup against the socialist Prussian government; in evidence before the Constitutional court, Schmitt defended the broad interpretation of the power given under the Article.37 Of course, consequent on Hitler’s elevation to the Chancellorship and the Reichstag Fire of 1933, parliament was suspended and the whole of the Third Reich unfolded, in constitutional terms, as a single extended state of exception.38
That the same questions continue to bedevil liberal legalism is surely evident from recent debates on the subject. In the last ten years the issue of the state of exception has become central. States all around the world have had increasing recourse to the language of emergency and exception to justify practices contrary to the rule of law: discretionary detention, denial of habeus corpus, unappealable executive decision-making. These practices defend, on the grounds of necessity and inevitability – subjective judgments masquerading as objective realities – an executive power of decision that has the ‘force of law’ but is not law, uttered in the name of the law and contrary to it.39 In his work on State of Exception Giorgio Agamben likewise argued that the legal exception was in fact the new rule.40 A global environment of growing and endemic instability, particularly since the 9/11 attacks on the United States, has given new credence to debates on the preservation of liberal ends through non-liberal means. 147 countries have declared states of emergency since 1996.41 Many more, in accordance with Agamben’s claim, have implicitly carved out zones of lawlessness or ‘juristic black holes’ in the treatment of particular classes of people or actions.42 We are witnessing the revival of both Schmittian polemics and the circumstances that give rise to it.
From Schmitt to Derrida
Recent scholarship on deconstruction43 seems to uncannily resuscitate, if perhaps further generalise, these ideas. As opposed to more specific political critiques (Marxism, for example, or feminism, or critical legal studies) deconstruction articulates, again from an analytic as well as a normative perspective, a general theory of the impossibility of a purely objective and predetermined interpretation of anything. In this sense, deconstruction’s claim to be ‘post-modern’ is a recognition that it is not so much the repudiation of modernism but its apotheosis. According to Derrida, justice embodies two impulses, equally strong and diametrically opposed: equal treatment and singular respect. Justice expresses an aspiration towards ‘law or right, legitimacy or legality, stabilisable and statutory, calculable, a system of regulated and coded prescriptions’44 and at the same time wishes to find a unique and singular response to the particular situation and person before us. Justice is both general and unique; it involves treating everybody the same and treating everybody differently; applying the law indifferently and predictably – and not.45
If we could draw a cordon sanitaire between justice and law – or at least, as Sir Owen Dixon put it, ‘justice according to law’ – then this would not present a problem. We could avoid thinking about justice when we were only applying the law; we could avoid thinking about difference when we were only trying to treat everybody the same; we could apply the rules in court and talk about justice over lunch. This is of course the strategy, if not the eating habits, of many positivist theories of interpretation and judgment.46 One response to this would be to argue, as did Fuller, that a legal system which was not struggling towards justice – and therefore struggling with its own incoherence – would not be a legal system capable of grounding an obligation to obey.47 Another response would point out that, while the rule of law obliges us to follow the rules, every legal decision requires us to make a judgment as to the applicability of prior general norms in the inevitably different and singular circumstance before us. We must always decide if this unique case is ‘the same as’ or ‘different from’ the past, but that is the very choice that the past cannot possibly help us with. Schmitt made the same point in 1912.
It does not matter whether we are talking about legislation or judicial interpretation. The unavoidable passage of time between the enunciation of a norm and its application, and the unavoidable uniqueness of the present judgment by comparison to any prior instance, inevitably opens up a space for decision – an abyss between then and now.48 The decision might be obvious. Perhaps much of the time it is. But it cannot be made without a moment of reflection. This is what Derrida means when he says that the judge cannot properly make a decision without first destroying or suspending it in order to reinvent it. And once in a while that reflection will cause us to change our mind, to re-configure our understanding of what the rule in question was ‘really’ about. Once in a while, we will see before us an exception. That state of exception cannot be limited in advance to predictable aspects – ‘hard cases’ or ‘grey areas’ – since it is in the nature of time and circumstances to transform easy cases into hard cases unexpectedly. Uncertainty is built right into legal interpretation. The judge cannot fall back on the established law to answer this question; it would be circular reasoning to do so since the question is precisely whether the established law does or does not apply here and now. Instead, the judge must have recourse to something beyond the rules, some element of justice which, as we have seen, we thought we could set aside. Accordingly, an element of incalculability, irreducible to formal rules, necessarily enters into legal thinking, unsettling our established categories of thinking and forcing us to question what rules mean at the very moment we apply them. Neither justice nor law is capable of being reduced to ‘juridical-moral rules, norms or representations, with an inevitable totalising horizon’,49 some one-way track by which the past could stop us thinking about the future.
My point has been to show that the analytic point goes all the way back to the early part of the twentieth century – a liberal structure cannot, simply by relying on the idea of rules, protect law, realise justice or make decisions. The deconstructionist approach is hardly so very different from what was said by Lon Fuller in 1956. Responding to Hart, he too insisted that it is just not possible to apply a rule without being forced, in some measure, to consider its meaning in relation to a greater set of principles that are themselves, by a logic of infinite regression, incapable of reduction to a transparent form of words.50 And it is not so very different than what was said by Schmitt either. As Schmitt already argued in 1922, the paradoxical choice and conflict that judgment opens up is as intrinsic to law as it is necessary to justice. The boundary between core and penumbra, rule and exception, judge and sovereign, law and emergency, consul and dictator, is in an immanent state of collapse. Indeed, Derrida’s reflection that there is a ‘general strike’ at work in all legal interpretation and that this is ‘a stroke of luck for politics’51 closely echoes Schmitt’s formulations many years before.52
As we have seen, such a position poses a severe challenge to the rule of law.53 As H.L.A. Hart wrote, ‘if it were not possible to communicate general standards of conduct which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist’.54 Brian Langille makes the same point.
[If] language is indeterminate, unstable, subject to manipulation and incapable of expressing rules and principles which constrain judges … the law is a failure on its own terms and the virtues of the rule of law are impossible to secure.55