2014 RulebyLawOrRuleofLaw
- (Tushnet, 2014) ⇒ Mark Tushnet. (2014). “Rule by Law Or Rule of Law.” In: Asia Pac. L. Rev., 22.
Subject Headings: Rule of Law; Rule by Law
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Abstract
This article examines some aspects of the distinction between the rule of law and rule by law, elucidating those concepts by focusing on their role in political systems with a dominant political party. After criticizing accounts in which the rule of law serves some instrumental purposes of the dominant party, such as promoting foreign investment, the article turns to more normative accounts of the rule of law. Drawing on American Legal Realism, it argues that standard components of the rule of law such as coherence and intelligibility do impose some normative constraints on dominant party behavior. Examining the concept of intelligibility in more detail, though, shows that those constraints are relatively weak, and depend importantly on the views prevailing in the legal profession about what a decision according to law is.
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I begin with the idea of rule by law. Here the idea is simple: there are some laws in place, whose content is reasonably clear and known to the people to whom the laws apply. A rule-by-law system exists when the laws in place are reliably applied, subject only to the kinds of random and minor deviations that occur in any system operated by human beings. In a rule-by-law system, people can generally plan for the short term. But their ability to do so is limited by the fact that nothing in a rule-by-law system precludes the government (a term I use to refer generally to those with the power to alter the law) from changing the rules whenever they choose.
I begin with the idea of [[rule by law. Here the idea is simple: there are some laws in place, whose content is reasonably clear and known to the people to whom the laws apply. A rule-by-law system exists when the laws in place are reliably applied, subject only to the kinds of random and minor deviations that occur in any system operated by human beings. In a rule-by-law system, people can generally plan for the short term. But their ability to do so is limited by the fact that nothing in a rule-by-law system precludes the government (a term I use to refer generally to those with the power to alter the law) from changing the rules whenever they choose.
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I use Lon Fuller's widely accepted enumeration of the characteristics of the rule of law: generality, publicity, prospectivity, intelligibility, consistency, practicability, stability and congruence. None of these is an absolute; they have, as it is put, a range over which they can vary. I have already mentioned an aspect of what Fuller calls congruence, for example, congruence exists when the rules are actually enforced and do not exist simply 'on the books.' But, as I have said, congruence exists even if complete and absolute enforcement does not, as long as the deviations in enforcement are minor and random. Similarly with generality: a general law has a well-defined but not universal scope of application. The obvious example in this venue is that a 'one state, two systems' regime is a general one in Fuller's terms.
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One-party dominance means that the government has the legal power to change the rules in place whenever it chooses. It may choose not to change them - for the moment - but it cannot credibly promise that it will leave them in place indefinitely.
Consider this example - a stylised version of events that have occurred in Singapore - in which Fuller's requirements appear to be satisfied. The government arrests a critic, charging him with violating a statute prohibiting the public distribution of statements likely to cause racial disharmony, by publishing a newspaper editorial criticising the government's policies on affirmative action. The judge before whom the prosecution is brought dismisses the prosecution on the ground that the editorial did not violate the statute because it was unlikely to cause racial disharmony. The judge orders the critic released. As the police are completing the paperwork to accomplish the release and putting the critic in a taxicab to take him home, the government passes a new statute making it a crime to criticise government policies on affirmative action. The statute defines 'criticising' to include the failure to withdraw from public access statements made before the statute's enactment. When the critic steps out of the taxicab at his house, the police arrest him for violating the new statute. (Assume that the critic has a mobile phone with him in the taxicab, so that he could receive notice of the new statute's enactment and could direct supporters to withdraw the editorial from public availability.) Holding the critic liable is, I believe, consistent with the minimal requirements of the rule of law: the new statute is public, general, prospective and capable of being complied with. But, I think it clear that the government's action lacks the virtues attributed to the rule of law. The example suggests that Fuller's requirements support only a thin idea of the rule of law.
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| Author | volume | Date Value | title | type | journal | titleUrl | doi | note | year | |
|---|---|---|---|---|---|---|---|---|---|---|
| 2014 RulebyLawOrRuleofLaw | Mark Tushnet | Rule by Law Or Rule of Law |