Redeeming the Rule of Law

Abstract

For he is called rex not from reigning but from ruling well, since he is a king as long as he rules well but a tyrant when he oppresses by violent domination the people entrusted to his care. Let him, therefore, temper his power by law, which is the bridle of power, that he may live according to the laws .... Henry de Bracton Bracton de /egibus et consuetudinibus Ang/iae (c. 1230) I. INTRODUCTION Until recently, wha~ might be termed 'rule formalism' was the prevailing interpretation of the rule of law. According to this view, the rule of law is rule by and through rules; and its minimalist normative content resides exclusively in the formal characteristics of rules as such, which is to say, their generality, clarity, prior declaration and prospective application, stability, and so on. 1 The rule formalist view reached its apotheosis, in my view, with Joseph Raz's widely influential article "The Rule of Law and Its Virtue" which appeared in 1977. 2 There Raz declared the rule of law to be politically migratory: A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies. 3 Professor of Law, University of Alberta. Lon Fuller's remains the best account of these virtues. See L.L. Fuller, The Morality of law, rev. ed. (New Haven: Yale University Press, 1969) c. 2. According to Fuller. law as such requires certain procedural practices and commitments associated with rule governance, and these procedural requirements together constitute a morality of rule governance which we tenn the rule of law. J. Raz, "The Rule of Law and Its Virtue" (1977), 93 L.Q. Rev. 195. This piece also appears as chapter 11 of his The Authority of law: Essays on law and Morality (Oxford: Clarendon Press, 1979) 210. In his more recent work, Raz offers a much more nuanced view of the matter. See ''The Politics of the Rule of Law" in J. Raz, Ethics in the Public Domain: Essays in the Morality of law and Politics (Oxford: Clarendon Press, 1994) 354. About which, see infra note 145 and accompanying text. "The Rule of Law and Its Virtue," ibid. at 196. REDEEMING THE RULE OF LAW 1005 And he went on to attenuate the relationship between the rule of law and arbitrary power which, traditionally;' was considered the grist of the matter: Arbitrary power is broader than the rule of law. Many forms of arbitrary rule are compatible with the rule of law. A ruler can promote general rules based upon whim or self-interest, etc .. without offending against the rule of law. 5 These views, of course, fairly incapacitate the rule of law as a measure of the legitimacy of government. Nor only that. They make the rule of law a particularly unsuitable idiom for the expression of our political and legal commitments, and, to the extent that we have accorded that vocabulary pride of place in our political and legal imaginations, re...