Why the Rule of Law?

• Author: Richard K. Greenstein
• Position: Professor of Law, Temple University
• Pages: 63-94

Page63

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

IIntroduction

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 Page64 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 Page65 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, and required. But what justifies the rule of law in light of law's malleability, open texture, and indeterminacy, i.e., law's manifest inability to say what is permitted, forbidden, and requires? Perhaps more to the point, just what does the rule of law mean in light of law's malleability, open texture, and indeterminacy? Page66

This essay is about making sense of and justifying the rule of law when we think about law as indeterminate and, therefore, unable to specify the limits on governmental power that protect us from tyranny. In order to do this, it is first necessary to be clear about just why law is indeterminate. Social interactions, including, but not limited to disputes, invoke the multiple, heterogeneous values held by various individuals and groups in a pluralistic society.¹⁶ Law, which mediates social interactions, reflects those distinct values. That is, multiple, heterogeneous values are buried within all legal doctrine.¹⁷ These values have to do variously with matters of social policy, with the purposes of particular legal doctrines and particular legislative provisions, with the purposes of law itself, with the institutional allocation of coercive power among governmental branches and subdivisions, and so forth.¹⁸

An ordinary zoning case from the 1950's, Pierro v. Baxendale,¹⁹ provides an illustration. In that case, the Supreme Court of New Jersey was called upon to decide whether a zoning ordinance, which explicitly permitted rooming and boarding houses in a certain zoning district, thereby permitted the construction of a motel. To reach its ultimate ruling that the ordinance prohibited motels within the district, the court threaded its way through multiple constellations of values.

One set of value choices at stake in this case concerned interpretation. Literally construed, the ordinance defined permitted Page67 rooming and boarding houses in a manner that seemed to include motels.²⁰ But, should the words of the zoning ordinance be given their literal meaning or a meaning determined by an assessment of the meaning intended by the legislators or a meaning driven by a determination of the provision's purpose? Reading an ordinance in terms of its literal meaning values the notice function of law by helping to ensure that ordinary persons subject to the law's command will understand from the literal meaning of the legislative language just what the law permits, requires, or forbids. By contrast, interpreting an ordinance in terms of legislative intent serves the political value of deference to the will of elective representatives. If the will of the legislators as expressed in the ordinance is accurately discerned and obeyed,²¹ even when inconsistent with the ordinance's literal meaning, then the locus of power resides in the electoral process where the judgment of the legislature and of individual legislators is approved or rejected through the popular vote. Finally, construing an ordinance to effectuate particular purposes or policies values legislation as a tool for social engineering. Statutes and ordinances exist to realize identifiable objectives, and legislative language should therefore be interpreted to achieve those objectives, even if such a reading is inconsistent with the literal meaning of the language or the particular understanding of that language by the enacting legislators.²²

A second set of values in play in Pierro concerned the objectives of New Jersey zoning legislation in general. One purpose was to limit land use in order to preserve a particular quality of life;²³ a second was to bring order to the use of land Page68 within a community;²⁴ and a third, to respect and protect the autonomous use of private property.²⁵

Yet other collections of values loom over virtually every case. Some of these can be termed "institutional" and concern such matters as the role of courts vis-à-vis other branches of government, the hierarchical arrangement of courts, and the relationship between state and federal courts. Others can be called "jurisprudential." These values concern such matters as respect for precedent, which implicates the utility of stability, consistency, and predictability in the law; justice, one understanding of which argues for departure from precedent when prior decisions are thought to have been poorly reasoned; and the importance of law's adaptability, which argues for departure from precedent when changing social circumstances favor revisiting rulings from an earlier era.

Thus, the meaning of the Pierro decision can be cast in terms of a variety of values: substantive values having to do with zoning, interpretive values having to do with what makes legislation important, institutional values having to do with authority and efficiency, and jurisprudential values having to do with stability, justice, and adaptability. This collection of values constitutes the matrix for Pierro as an expression of legal doctrine.

But even these observations fail to capture the full messiness and potential ambiguity of Pierro's legal dimension. Consider the entire group of values identified thus far as the matrix for the case. Why are these the relevant values? What determines the meaning of these values? Do these values have a ranking with respect to one another and, if so, is this ranking fixed, or does it vary from case to case?²⁶ If they vary from case to case, what determines their relative weight?

It is this multiplicity of values and the ambiguities regarding their meanings and rank that...