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Law’s Rule
Law’s Rule
The Nature, Value, and Viability
of the Rule of Law
G E R A L D J. P O S T E M A
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Inquiries concerning reproduction outside the scope of the above should be sent to the Rights
Department, Oxford
University Press, at the address above.
DOI: 10.1093/oso/9780190645342.001.0001
1 3 5 7 9 8 6 4 2
Printed by Integrated Books International, United States of America
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject
matter covered. It is based upon sources believed to be accurate and reliable and is intended to be
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For Leslie
sine qua non
Contents
Prologue ix
PA RT I C O R E A N D C O N SE Q U E N C E S
PA RT I I C HA L L E N G E S
Epilogue 333
Acknowledgments 337
Notes 339
Index 377
Prologue
The rule-of-law idea, once an obscure notion more at home in law school lecture
halls than in the mainstream media, is now the staple of the discourse of pundits,
politicians, and protesters around the world. The rule of law enjoys broad inter-
national appeal. Ban Ki-moon, Secretary General of the United Nations, made
this fact clear in 2012. “The rule of law,” he said, “is like the law of gravity. It is the
rule of law that ensures that our world and our societies remain bound together
and that order prevails over chaos.”1 Unlike the law of gravity, however, the re-
alization of the rule of law in a nation or beyond is not inevitable or invariable.
Indeed, in the view of many observers, the rule of law is currently under grave
threat. In 2005, the International Bar Association, the “global voice of the legal
profession,” observed with dismay “the increasing erosion around the world of
the Rule of Law.”2 Several years later, this disturbing trend continued. In 2021,
the European Union raised the alarm: “[P]ressure is mounting on the rule of law
globally.”3
Recently, the European Commission, with the backing of the European
Court of Justice, sanctioned the Polish government for a deliberate and cal-
culated legislative dismantling by Poland of the independence of the judi-
ciary, a key component of the rule of law.4 World leaders, journalists, and
scholars have raised similar concerns about erosion of the rule of law in sev-
eral countries, including Hungary, Brazil, Venezuela, Georgia, and Russia.
Authoritarian- leaning leaders have seized opportunities created by the
COVID-19 pandemic to expand their power and erode even further checks
on their power. The global rule-of-law crisis reached a new low with the recent
attack by Russian forces against Ukraine, which was a blatant violation of in-
ternational law.
Established democracies have also seen dramatic declines in adherence to
the rule of law. Notable in this group of backsliding regimes is the United States.
According to the recent World Justice Project’s (WJP) annual report, adherence
to the rule of law in the United States has been in steady decline since 2016, espe-
cially in the areas of constraints on government power and criminal justice. The
WJP Rule of Law Index for 2021 ranks the United States 20th of 31 in its north
Atlantic region and 27th of 139 considered globally. It falls far behind Denmark,
Norway, Finland, Sweden, the Netherlands, the United Kingdom, and Japan; but
it also lags behind Lithuania, Estonia, and Uruguay. Its rank-order neighbors are
Cyprus, Slovenia, Malta, and Costa Rica.
x Prologue
the moral foundations of the ideal. To address the latter question, it explores
the institutions and practices of government and of civil society that realize
this ideal—the institutional building, as it were, constructed according to the
architect’s abstract rendering.
The following work consists of two parts. Part I is devoted to articulating and
defending its proposed conception of the rule of law. Chapter 1 locates the idea
in the thought and writing of poets and philosophers, sages and scholars across
time and cultures. It affords readers an intuitive grasp of key constituents of the
rule-of-law idea. It ends with the proposal that at its core, the rule of law promises
protection and recourse against the arbitrary exercise of power using the distinctive
tools of the law. The organizing aim of the rule of law is to temper the exercise
of power to avoid to the extent feasible its arbitrary exercise; it chooses law as
the means of doing so. Chapter 2 refines this watchword into a working thesis,
articulating each of the key notions that it comprises—power, arbitrariness,
protection, recourse, and accountability, and describes the box of tools the law
provides for tempering power. Chapter 3 defends three principles that immedi-
ately follow from this core idea of the rule of law: sovereignty of law, equality in
the eyes of law, and fidelity. Sovereignty demands that those who exercise ruling
power govern with law (legality), that law governs them (reflexivity), and only acts
that are ordained by law are legitimate (exclusivity). Equality requires that law’s
protection and recourse is available on an equal basis for all who are also bound
by it. Fidelity requires that all of its members, and not merely the legal or ruling
elite, take responsibility for holding each other, and especially law’s officials, ac-
countable under the law.
Chapters 4 and 5 seek upstream sources of this articulated ideal. They uncover
the moral foundations of the rule-of-law ideal and its place in the constellation of
basic values of political morality. Chapter 4 argues that the rule of law is founded
upon and serves the complex moral value of membership. This value combines in
complementary relationships freedom, dignity, equality, and community in one
integrated package. Chapter 5 explores the relationship between the rule of law
and the core values of justice, human rights, and democracy.
The rule of law, like democracy, is by its nature an institutionally realized ideal.
It exists only insofar as it is realized and articulated in institutions and practices—
governmental and extragovernmental, formal and informal—in historical polit-
ical communities. Chapters 6, 7, and 8 travel downstream to consider how the
rule of law’s principles are concretely realized in particular political communi-
ties. Chapter 6 sketches broadly the kind of institutions and practices that, in
many polities, effectively serve the rule of law. Chapter 7 explores the material,
cultural, and moral limits of the ideal—the conditions that must obtain for it to
thrive and the limits on its moral force. Chapter 8 explores the kinds of threats to
which the rule of law is most vulnerable. These include various ways in which key
xii Prologue
rule-of-law institutions and practices are sabotaged and subtler ways in which
the moral culture in which the rule of law is rooted is coarsened and corrupted.
Part II takes up a number of important challenges to the intelligibility or fea-
sibility of the ideal. Chapters 9 and 10 consider a challenge to a key theme of the
conception defended in Part I: that the rule of law can be robust in a polity only
when the ethos of fidelity—mutual accountability—takes hold in it. Chapter 9
addresses the challenge that fidelity drives out finality; that robust accountability
justifies widespread civil dissent, which throws law into perpetual uncertainty,
undermining the protection and order that the rule of law promises. In re-
sponse, Chapter 9 explores the delicate dialectic between dissent and deference
to authorities. Chapter 10 argues against critics that widespread accountability
does not drive out trust, but rather underwrites it.
Chapters 11 and 12 explore four contexts in which the exercise of discretion
plays a large and, for some, worrisome role. Chapter 11 argues that, despite the
large role they assign to discretion, equitable judgment in the civil law con-
text and mercy in the criminal law context are compatible with the rule of law.
They are necessary complements to law, the chapter shows. Chapter 12 answers
critics who charge that law must go silent in times of emergency, that ordinary
checks and balances on executive decision-making are either ineffective or too
dangerous to include within a constitutional order. On the contrary, the chapter
argues, carefully calibrated law is most needed in these circumstances.
Chapters 13 and 14 take up the novel challenges posed by artificial intelli-
gence and the growth of enormous power of digital power and digital platforms
(“Big Tech”). Chapter 13 argues that law must also temper the power of these new
Leviathans and explores in broad terms ways of doing so. Chapter 14 argues that
artificial intelligence, suitably regulated, may have a role to play in ordinary op-
erations of the law, but that it must not take the place of law.
The book concludes in Chapter 15, arguing for the importance of robust rule
of law in the global domain against those who argue that it is either impotent or
too costly.
The chapters of Part I fit closely together, giving shape and substance to the core
conception of the rule of law. The chapters of Part II address several challenges to
and applications of this conception. Readers interested in the rule-of-law idea in
general are invited to read all of Part I, but they may wish to sample this or that
chapter of Part II. The chapters of Part II depend heavily on the foundational
work done in Part I, but they do not build on each other. Readers’ interests can
guide selection among them.
PART I
C ORE A N D C ON SEQU E NCE S
1
The Idea of the Rule of Law
In the fifth century bce, stone columns in the Cretan city of Gortyn promulgated
a code of law.1 The first sentence of the Gortyn Code asserts the supremacy of the
legal process. It declares, “if anyone wishes to contest the status of a free man or a
slave, he is not to seize him before a trial.” Law and the legal process were to rule the
actions and interactions of the citizens of Gortyn; but equally, law was to govern
those who exercised power under color of law. Officials, even the kosmos, the city’s
highest official, were subject to the law. They could be fined if they failed to en-
force the law properly. In the Gortyn Code, law was not merely an instrument of
governance; law was meant to govern the governors and citizens alike. All need to
be ruled, it assumed, not least the rulers. This is the simple, central idea of the rule
of law.
Before we launch into a detailed analysis of the rule-of-law ideal, it would
be helpful to get an intuitive sense of it. What more fully is the core, organizing
idea lying at its center? What is the deep concern that motivates its partisans
and gives life to the demands it places on institutions and individuals? This is
the task of this chapter. The aim is not to give a systematic history of the de-
velopment of the rule-of-law ideal. It is, rather, to illustrate the fact that, in
a wide variety of political circumstances and cultures over a long period of
time, writers who have thought about conditions necessary for the survival
and flourishing of their political communities had recourse to a set of interre-
lated ideas concerning the constitution of and constraints on social and polit-
ical power.
The chapter approaches this task from two directions. First, just to sug-
gest a rough idea of the rule of law, it looks briefly at two examples of its
failure. Thinking about them affords a glimpse into what drives the ideal.
Second, the chapter takes a longer look at attempts over the millennia to give
expression to this intuitive idea. The chapter concludes with a sketch of the
components of a coherent, articulated conception of the rule of law. It will be
the task of remaining chapters of Part I to fill out the sketch provided in this
conclusion.
Law’s Rule. Gerald J. Postema, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/oso/9780190645342.003.0001
4 Core and Consequences
Law’s Failure
Another story, from a very different era and legal context, introduces us to fur-
ther dimensions of the rule-of-law idea. Between 2003 and 2008, the presiding
judge of the juvenile court in Luzerne County, Pennsylvania, summarily sen-
tenced several thousand young people to extended detention in private facili-
ties far from the young defendants’ homes.6 In hearings that lasted an average
of four minutes, Judge Mark Ciavarella handed down harsh sentences for minor
infractions or even innocent actions—for throwing a steak at the boyfriend of
the defendant’s mother, for example, and for calling the police when his mother
locked him out of the house. He paid little attention to the evidence let alone
any special features of the defendants’ circumstances. In the American juvenile
justice system, the legally mandated aim is not punitive but restorative. The law
charges court officials with securing “the best interest of the child.” This charge
gives judges a degree of discretion to fashion arrangements to suit the needs
and special circumstances of each defendant. Ignoring the law, however, Judge
Ciavarella imposed sentences at his pleasure, in proceedings that mocked fed-
eral and state constitutional and statutory guarantees of due process. Although
guaranteed the right to counsel through the whole process, juvenile defendants
were urged systematically and illegally to waive their rights and to plead guilty.
Well over 50 percent of defendants appearing before Judge Ciavarella waived
their rights to counsel, and 60 percent of those who did were placed in extended
detention, while only 20 percent of those who were represented by counsel were
so placed. “The judge’s whim is all that mattered in that courtroom,” said the legal
director of the Juvenile Law Center (which was instrumental in finally exposing
the practices of Ciavarella’s court). “The law was basically irrelevant.”7
In early 2009, the public learned that Ciavarella’s “zero tolerance” policy was
motivated by nothing more than venal sinister interest. Ciavarella and his fellow
judge, Michael Conahan, had been paid handsomely—$2.6 million over this
period—to send juveniles to two private detention centers, while working to
eliminate the public detention center run by the county. The judges were indicted
and later convicted on a number of federal charges including conspiracy, money
laundering, racketeering, and tax evasion. Judge Ciavarella denied that the
money he received for sending juveniles to the private detention centers in any
way influenced his judgment. The Pennsylvania Supreme Court disagreed. In
October 2009, the Court expunged all the convictions, some three thousand,
handed down by Ciavarella from 2003 to 2008.
While the venal motive was not uncovered until 2009, the practices of system-
atic denial of constitutional due process rights, excessively harsh and arbitrarily
imposed sentences, and utter disregard for the law went entirely unquestioned
by hosts of people—other judges, district attorneys, public defenders, court
6 Core and Consequences
officers and staff, police, probation officers, school administrators, teachers, and
counselors who witnessed these outrages but did nothing to challenge them.
The Interbranch Commission on Juvenile Justice, established by the state legis-
lature to investigate the scandal, opened its proceedings in October 2009, with
these words:
This morning our Commission begins its public hearings to assess the breath-
taking collapse of the juvenile justice system in Luzerne County. Two judges
stand criminally charged for conduct that had the unmistakable effect of
harming children . . . there is little doubt that their conduct, whether criminal or
not, had disastrous consequence for the juvenile justice system . . . Our concern,
however, is not only the action of two Luzerne County judges. Our concern is
also the inaction of others. Inaction by judges, prosecutors, public defenders,
the defense bar, public officials and private citizens—those who knew but failed
to speak; those who saw but failed to act.8
[I]s the guiding light of civil life, . . . a bulwark of public peace and discipline,
a refuge for the weak, a bridle for the powerful, and a norm and straightener
of imperium. . . . It is also the precept by which political life is instituted and
cultivated.11
In short, law provides a bulwark of protection, a bridle on the powerful, both those
in positions of political authority (“imperium”) and those in the community at
large who seek to dominate and exploit the weak, and a bond constituting and
holding together the polity and giving public expression to an ideal of association.
Bulwark
The fourth-century bce Greek Sophist, “Anonymous Iamblichi,” set the stage
for our tour. He argued that by necessity (anankē), human beings are driven
to live together, yet they cannot do so while living in a lawless condition, since
“the penalty for lawlessness is even greater than for living alone.” Thus, “because
of all these constraints law and justice are king among us.” People “must fight
for the law,” wrote Heraclitus, “as they would for the city walls.” In his History,
Thucydides observed that when some in society want to impose their wills on
others, they first seek to “destroy without a trace the laws that commonly govern
such matters.” However, they fail to realize that “it is only because of these [laws]
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voimassa.
Pyhäjoen Pitäjästä.
Oulaisten kappeli.
Haapajärven kappeli.
Mehiläisen Toimittajalle.
Cn. Sr.
Myrsky.
(Wenäjästä).
Tuuli tuhahti, kiihtyi, väki kohta. Maininki vieri mäkinä, vetelät mäet
muuttuit jyrkiksi alloiksi, ja meri rupesi kohajamaan kuin vesi
suuressa kattilassa ennen kiehumistaan. Aurinko laskisiin tulisiin
pilviin, koko länsi kiehu ikään-kuin veressä, tuttu merkki myrskyksi;
säteihen puotessa hiiluvalle sinille, vierevälle viherjälle, lipai lainet
lasina, palo kuin pilvi salamasta, ja sammu, ja pimeni, ja upposi
survattu toiselta.
—n. —r.
Satuja.
1. Hirvi ja Sarvensa.
2. Karhu ja Jalopeura.
MEHILÄINEN W. 1837.
Kesäkuulta.
Tanssin Synty.
Pyyhyet vihertelivät
Wesasilla vempelillä, 40
Oravat samoelivat
Aisoilla vaahterisilla,
Tetryet kukertelivat
Korjan kirjavan kokalla,
Tanssia taluttaessa, 45
Ilokasta tuotaessa.