Market rights and the rule of law: a case for procedural constitutionalism.

• Author: Pincione, Guido

1. INTRODUCTION I. SOME CONCEPTUAL ISSUES III. CONTESTABLE RIGHTS AND THE RULE OF LAW IV. INTEGRITY AND RULE FOLLOWING V. AM I PROVING TOO MUCH? VI. DEPENDENCE, CHARITY, AND WELFARE VII. NONINTERFERENCE, MARKET RIGHTS, AND THE RULE OF LAW VIII. THREE CONCLUDING CAVEATS I. INTRODUCTION

   It is widely believed that a commitment to the rule of law is neutral among theories of rights. On the prevailing view, the classical liberal idea that market rights ought to be protected under the rule of law reflects a contingent substantive belief about which rights there are, rather than a more intimate relationship between the rule of law and market rights. Thus, Joseph Raz writes that "the rule of law ... can hardly be used to oppose in principle governmental management of the economy," as long as such management may "increase freedom" understood as "power of action." (1) By "market rights," I mean the rights to self-ownership, to exclude others from the use of certain external things, and to voluntarily exchange such things. Acknowledgement that individuals have welfare rights (i.e., rights to a minimum provision of welfare goods, such as health care) in addition to, or perhaps competing with, market rights should lead us, according to the prevailing view, to subject a wider realm of rights to the discipline of the rule of law. I disagree. I will argue that the rule of law requires that market rights be strong enough to exclude legal (2) welfare rights as they are upheld in typical welfare states. I will also argue that an important lesson of my exploration of the conflict between welfare rights and the rule of law is that the way in which liberal constitutionalism has addressed the protection of core rights and liberties must undergo major revision.

   We frequently contrast the rule of law with the rule of men. In his classic work on constitutional law, A.V. Dicey wrote that the rule of law encompasses three ideals: (a) law prevails over arbitrariness and discretionary power, (b) "every man ... is subject to the ordinary law of the realm and amendable to the jurisdiction or the ordinary tribunals," and (c) "the general principles of the constitution (as, for example, the right to liberty, or the right of public meeting) are [...] the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts," rather than the result of legislation. (3) Only the ideal that law prevails over arbitrariness is close to the understanding of the rule of law that I shall adopt in this article. Dicey's ideal that no one is exempt from the duty to obey the law and to be subject to prosecution under the law requires equal treatment or non-discrimination, and is incorporated into the Fourteenth Amendment of the American Constitution. In my restrictive sense of the "rule of law," this can coexist with forms of discrimination or exemptions condemned by the Equal Protection Clause. Thus, if public officials are legally bound to apply laws involving gender discrimination, but lack discretionary powers to decide the form and scope of such measures, then their behavior is, in my sense, subject to the rule of law, even if those laws offend the Equal Protection Clause. This shows that violations of the Equal Protection Clause that are consistent with my understanding of the rule of law may be grossly objectionable. (4) For this reason, the rule of law, as I explain it in this article, is not sufficient for a legitimate polity. Whether the rule of law is necessary for a legitimate polity will turn on a theory of the trade-offs between the rule of law and other ideals of political morality. I shall not take sides in this issue, except to say that the rule of law is important enough to concern anyone whose theory of rights requires breaching it: we attach value to the fact that men are subject to legal rules rather than to other men. (5)

   The rule of law is usually understood as requiring that even rule-makers be subject to legal rules. Indeed, the ideal of a government bound by law has been central in the rhetoric of the rule of law. (6) I shall not address the more general question of whether things other than law can limit discretionary power, but two possibilities deserve brief mention. First, a benevolent despot can be said to be limited by moral rules that he has internalized to the point that he cannot (i.e., without being sanctioned by his moral consciousness) impose his will on others. My concern is with the types of rights that the law should contain if the rule of law is to prevail, rather than with the general conditions on which not being dominated by others' discretionary will depends. (7) Theories of legal interpretation holding that moral considerations inform the very concept of law complicate this picture and I shall consider Ronald Dworkin's views in this regard in Part IV. The second possibility is that government is limited de facto by social forces that threaten revolution should government exercise its powers in certain ways. Thus, rational choice theorists explain political stability as the result of the strongest social forces acquiescing in a government, provided that it does not overstep certain limits. (8) My focus will be on legal not social limits to power.

   Formulas such as "government subject to law" and "government bound by law" threaten tautological vacuity if they allow us to say that any governmental action respects the rule of law to the extent that the law authorizes it. As Joseph Raz points out, this condition is definitionally met by any governmental action as such--i.e., as something different from unlawful actions, or at any rate actions going beyond the agent's governmental capacities. (9) Thus, Raz concisely captures the essence of the rule of law when he argues that: "Government by law and not by men is not a tautology if 'law' means general, open, and relatively stable law." (10) I shall henceforth adopt this non-tautological understanding of the rule of law. Under the rule of law, a "general, open, and relatively stable" constitution binds legislators, and the constitution itself can be amended only by its own procedural rules.

   The rule of law excludes discretionary power--i.e., power that is exercised at will on others, without regard to their subjective interests. This follows from the fact that the rule of law prohibits everyone from issuing (in a sense that requires no foundation on general rules) opaque or changing rules for others, which rules are instrumental to imposing our will on others. (11) I use the term "discretionary" instead of "arbitrary" to underscore the objective nature of power that is incompatible with the rule of law. Sometimes "arbitrary power" is meant to indicate a certain type of objectionable motivation behind lawmaking (for example, self-interest). When that is so, arbitrary power can coexist with the rule of law as long as legal rules meet the conditions of generality, openness, and stability. "Discretionary" seems to better capture an essential objective feature of decisions contrary to the rule of law--i.e., their being unbounded by rules. (12) Notice that decisions based upon reasons, even reasons other than self-interest, are discretionary (though non-arbitrary, in another, natural sense of this term), provided the agent is at liberty to select such reasons. (13)

   We may bring the value of the rule of law into focus by contrasting it with its opposite, the rule of men. Ideas of subjugation to another's arbitrary will, of inequality, of servitude, etc., are naturally associated with discretionary governance by men. Why such things are objectionable is, however, a question that I will not endeavor to answer in this essay. Nor shall I explore whether the rule of law can be defended on grounds other than avoidance of such things. For example, some writers argue that the rule of law has a coordination function exemplified, for instance, by traffic rules (14) The primary target of my critique will be those who adhere to the rule of law because they find discretionary power objectionable and who also think that the rule of law makes room for welfare rights of the sort that typical welfare states are intent on upholding.

   A related caveat is that I will not offer independent arguments against welfare rights. To be sure, welfare rights have been subjected to a variety of objections. Among these are the ideas that market rights have overriding stringency and hence leave no room for welfare rights, that welfare rights spawn economic inefficiency, and, more generally, that rights are illusions that moral thinking should get rid of. Yet, my critique of welfare rights will not rely on those objections or on any other independent reservation about welfare rights. My goal is to criticize the view that there is nothing in the idea of the rule of law that should require specific rights and oppose the view that maintains that the rule of law is hospitable to welfare rights, provided that they are governed by legal rules, as something different from someone's discretionary will.

   The article is organized as follows. In Part II, I briefly characterize rights in general, and market and welfare rights in particular. In Part III, I argue that welfare rights are contestable in a way that market rights are not; I further contend that such contestedness renders welfare rights intractable by the rule of law. I also argue that certain procedural rules for political decision-making bring the hope of generating a mutually advantageous system of non-contestable market rights. I then proceed to examine and reject several attempts to overcome the tension between welfare rights and the rule of law. I conclude Part III by arguing that only if typical welfare arrangements are dismantled can all the good things that welfare rights are expected to deliver be brought under the rule of law. In Part IV, I take issue with the idea that the rule of law could...