Natural Law's Modern Cousin Germain: Rule of Law: What it Is

HUMAN INSTITUTIONS ARE SUBJECT TO FAILURE, some of it systemic (e.g., Communism, Somalia, Nazi Germany), some of it occasional (e.g., the occasional rogue judge who is corrupted by bribery, the trial of Alfred Dreyfus). There is not an institution in the world that cannot be, that has not been, sidetracked from its end through the designs or lapses of evil or weak men. Though these institutions are, as a whole or by design, justified by and in accordance with the demands of practical reasonableness, they are captured as it were by persons or groups and so are "deflected to meet the requirements of individual or group bias." NLNR, 265. In this way, they depart from being instruments of the common good and pro tanto lose their justification for being. This is true for the use of punishment attendant to justice. Ultimately, whether one calls these failures injustice, calls them a failure of justice, or even calls them "justice" not in the central case (secundum quid) is not as important as averting these failures. But the failures do not condemn the entire enterprise of justice and the use of coercive power to compel obedience to the interests of the common good or to punish in the event of disobedience against the interests of the common good. In the main, the justification persists the abuses. The question of sanction and its relation to law has been amply debated. Some jurists tie sanction to law. For example, John Austin made sanction a fundamental part of law so as to include the need for sanction as a sine qua non of law. Similarly, the sociologist Max Weber tentatively defined law with focus on the sanction as a material element of law's existence.* But Weber saw that law did not mandate sanction, and so saw that law legitimately function where there was not in practice sanction, but where a sense of duty was what spurred obedience to the law. As Finnis encapsulates Weber's final view on the matter:

For Weber, then, authoritative co-ordination is legal in character when it operates by way not of an attitude of obedience to persons but of a disposition to comply with 'the law', a legally established order of consistent, abstract rules (normally established intentionally) and principles to be applied to and followed in particular cases--wot that those in authority are regarded as 'officials' whose office or authority is defined by those rules, and who are to be obeyed only while they act within their legal powers.

NLNR, 267. As Finnis observes Weber distinguishes law from a whole slew of other human institutions (politics, conventions, manners, etc.) without adverting to the "problem of recalcitrance and hence of any need for coercion or sanctions." NLNR, 267.**

What is it that distinguishes a legal order from, say, "charismatic personal governance of a sovereign administering 'palm-tree justice by ad hoc decrees"? In other words, what constitutes the rule of law versus the rule of men? Finnis identifies a number of requirements that need to be found in the central case of a legal order. The first requirement of a legal order may be labeled the existence of a "legal 'circle'" by which Finnis means the interrelationship between the rules and the institutions that administer or enforce those rules, the institutions themselves being governed by rules. A legal order therefore generally has a "system of rules and institutions so interrelated that rules define, constitute, and regulate the institutions, while institutions create and administer the rules, and settle questions their existence, scope, applicability, and operation." NLNR, 268. The second requirement is that a legal order might be called legal continuity. A rule or an institution in a legal order once validly created "remains valid, in force or in existence, in contemplation of law, until it determines according to its own terms or to some valid act or rule of repeal." The law or institution cannot be a one-time shot, a particular affair. It must have some sort of staying power. The third requirement may be called the enforcement of private pacts. That requirement is that a legal order contain within itself not only the means of creating, administering, and adjudicating those rules, and rules relating to the institution, character, and administration of the institutions whose task is to further those rules, but there must be some means by which private individuals can partake in "juridical acts which, if performed in accordance with rules in form at the time of the performance" are considered to be enforceable independent legal acts. These sorts of acts would include such acts as the making of a contract, the purchase and/or sale of real property, entry into a marriage, the bequest of property by will. The fourth requirement might be called past-presentism. It is the "treating of . . . past acts (whether of enactment, adjudication [etc.] . . . ) as giving, now, sufficient and exclusionary reason for acting in a way then 'provided for'." NLNR, 269. It is this past-presentism that gives law its characteristic as a "stable point of reference unaffected by present and shifting interests and disputes." NLNR, 269. The fifth requirement may be called the assumption of "gaplessness." There is a presumption that the law suffers no gaps, that the law somehow provides for the unusual circumstance so that the law can be clearly applied to the present question or, through the application of due discretion, can be extended to cover and address the question. While in a sense "fictitious," if the legal order did not allow for some "play in the joints" it would be unmanageable. There has to be a rule in each instance that is not just arbitrarily pulled from the air as a stop-gap measure. These requirements then--and the absence of sanction is notable--would be sufficient to designate, in Finnis's view, a legal order from something else (convention, manners, politics). It would apply in a world of sinners just as much as "in a world of saints." NLNR, 269. But in a world of sinners, in a world where fraud and abuse of power are frequent enough so as for all of us to face it sometime during our lives, the legal order has to be supplemented "by the law of wrongs and offences, criminal procedure an punishment." NLNR, 270. In practice, then, sanction or enforcement may be considered a sixth requirement of the legal order, a non-essential but practically necessitated requirement. These requirements of the existence of a legal order, however, do not tell us whether the legal order is working well. If the legal system is working well, Finnis says it is accorded the term "Rule of Law." What indicates a system working well, a system that may receive the accolade of being in accordance with that much vaunted epithet the "Rule of Law"? Finnis provides an answer by identifying eight desiderata of a legal regime that operates as a Rule of Law:

A legal system exemplifies the Rule of Law to the extent . . . 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; (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 (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.

NLNR, 27-71. Of course, there is a range within which a legal order may be said to operate as a "Rule of Law" or where it may be said to operate outside of it. These requirements are not binary "yes" or "no" answers, and whether there is a "Rule of Law" may be in some cases debatable. Borders may be fuzzy and arguable. In our next blog posting, we will review and complete Finnis's treatment of the Rule of Law with specific focus on why it is considered beneficial to the common good and what limits might apply. __________________________________ *Finnis quotes a part of Weber's Wirtschaft und Gesellschaft: "An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose." (quoted in NLNR, 266). ("Eine Ordnung soll heißen . . . Recht, wenn sie äußerlich garantiert ist durch die Chance [des] (physischen oder psychischen) Zwanges durch ein auf Erzwingung der Innehaltung oder Ahndung der Verletzung gerichtetes Handeln eines eigens darauf eingestellten Stabes von Menschen.") **It may be observed that St. Thomas does not find sanction fundamental to law. He does not include it in his definition of the "central case" of law, which he defines as "nothing other than a certain dictate of reason (rationis ordinatio) for the common good, made by him who has the care of the community and promulgated." ST. IaIIae, Q.90, art.4. Sanction is required in law only because of recalcitrance, that is, only because of the disobedience or sinfulness of man.