Why the Rule of Law?

Summary

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I. Introduction . II. Argument . A. Decisions Made by the Flip of a Coin. B. To Maintain Continuity or Break with the Past. C. Commitments as a Member of a Group. D. The Public Meanings of Legal Decisions. III. Conclusion .

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Why the Rule of Law?

Professor of Law, Temple University. I wish to thank Charles Crampton, John Hasnas, and Dave Hoffman for their perceptive thoughts in response to earlier versions of this article. I especially want to express my gratitude to Jane Baron, who patiently, carefully, and insightfully read and commented on multiple drafts. [W]e as judges must decide this case on the law.1

I. Introduction .

Why should we care about the rule of law? The rule of law2 is enjoying a resurgence in the public consciousness. As the various constituents of the former Soviet Union seek membership in the European Union and as the People's Republic of China seeks greater integration in the world economy, the willingness of these nations to publicly commit to the ideals of the rule of law has assumed the status of a near prerequisite for their success. Recently, the United States Supreme Court invoked constitutional and statutory law to effectively constrain the war-making power of the President of the United States.3 At the same time, other high- profile decisions of American courts were seen by many as "legislating" by creating new rights in the absence of explicit textual authorization4 or as destabilizing legal doctrine by overruling recent precedent5 and injecting personal values or political allegiances into adjudication.6 Consequently, these decisions have raised questions about the current vitality of the rule of law.7 And, of course, Schiavo ex rel. Schindler v. Schiavo8 has ignited a furious debate about the rule of law that has involved all branches of state and federal government and has spilled into the public forum. Moreover, all this renewed interest in the rule of law has stimulated significant academic discourse on the topic, typified by Brian Tamanaha's recent publication On the Rule of Law.9

All of these developments beg a fundamental question: Why should we, or, in general, any community, care about the rule of law? There is, of course, a traditional answer: The rule of law protects a community against tyranny.10 That is, law sets limits on the use of governmental power. Law does this in two ways: by requiring the government to act in accordance with preexisting rules, principles, and standards, and by incorporating into those standards supralegal norms11 that reflect the polity's understanding of unalterable (or very hard to alter) limitations on the government power.

Of course, for the rule of law to protect against tyranny, law must be knowable. That is, law's limits must be sufficiently specified so that they are known in advance of the state's use of coercive power. This requirement of knowability focuses us on the profound paradox of law. On the one hand, law is rule-like. Our everyday experience is that law is relatively clear, enabling us, including government officials, to reliably know what the law permits, forbids, and requires.12 On the other hand, law is incorrigibly malleable, open-textured, and indeterminate, the very quality that enables lawyers to advocate different legal positions, judges to concur and dissent in specific cases, and courts to justify distinguishing, limiting, and overruling precedent.

An important debate within twentieth-century jurisprudence sought resolution of this paradox. Typically, legal theorists privileged one or the other of law's facets. Fans of law's rule-like quality asserted, for example, that indeterminacy is limited to a proportionately small subset of "hard" cases,13 while proponents of law's indeterminacy argued that the predictability of law is a function of external stabilizing forces, variously identified as convention, ideology, morality, norms, or structure,14 which shape the way we understand cultural meaning, including the meaning of legal doctrine.

Not surprisingly, the century ended with the debate at a standoff, for it seems likely that law's two faces are real, but irreconcilable.15 My concern, however, is not to resolve the issue, but to think about what it implies for justifying the rule of law. The protection-against-tyranny rationale speaks to one aspect of law's character: its "ruleness," i.e., law's manifest ability to say in advance what is permitted, forbidden, ...

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