Download Richard H. Fallon

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Transcript
+(,121/,1(
Citation: 97 Colum. L. Rev. 1 1997
Content downloaded/printed from
HeinOnline (http://heinonline.org)
Sun Jun 15 02:14:34 2014
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0010-1958
COLUMBIA LAW REVIEW
VOL. 97
January 1997
NO. 1
"THE RULE OF LAW" AS A CONCEPT IN
CONSTITUTIONAL DISCOURSE
Richard H. Fallon,Jr.*
The Rule of Law is a historic ideal, and appeals to the Rule of Law
remain rhetoricallypowerful. Yet the precise meaning of the Rule of Law is
perhaps less clear than ever before. Many invocations are entirely conclusory, and some appear mutually inconsistent.
To clarify the values that are invoked by diverse and sometimes conflicting appeals to the Rule of Law, ProfessorFallon develops four ideal types
which reflect the unstated assumptions that underlie familiarRule-of-Lawbased arguments. But the ideal types which tend to identify the satisfaction
of particularcriteriaas eithernecessary or sufficientfor the Rule of Law, are
also incomplete. More than is usually appreciated,the Rule of Law needs to
be understood as a concept of multiple, complexly interwoven strands. In the
final section of the Article, Fallon discusses the relative priority of various
strands of the Rule-of-Law ideal in diverse institutionalsettings.
The Rule of Law is a much celebrated, historic ideal, the precise
meaning of which may be less clear today than ever before.' Significantly, however, the meaning of the phrase "the Rule of Law"-which I
shall refer to as "the Rule-of-Law ideal"-has always been contested.
Within the Anglo-American tradition, perhaps the most famous exposidon came from a turn-of-the-century British lawyer, A.V. Dicey, who associated the Rule of Law with rights-based liberalism and judicial review of
2
governmental action.
Some have traced the modem ideal to Aristotle, who equated the
Rule of Law with the rule of reason;3 others have identified the Rule of
* Professor of Law, Harvard Law School. I am grateful for comments on earlier
drafts by Scott Brewer, David Cole, Dan Meltzer, Frank Michelman, Henry Monaghan,
Fred Schauer, David Shapiro, Seana Shiffrin, David Strauss, Lloyd Weinreb, and Mike
Wells, and by participants in the Constitutional Theory Colloquium at New York University
Law School, a Harvard Law School faculty workshop, and a constitutional law conference
at the University of Virginia Law School. I also benefitted from conversation with Mort
Horwitz and from editorial suggestions and research assistance by Rachel Selinfreund and
Kingsley Taft.
1. Cf. George P. Fletcher, Basic Concepts of Legal Thought 12 (1996) ("[W]e are
never quite sure what we mean by 'the rule of law.' ").
2. See A.V. Dicey, Introduction to the Study of the Law of the Constitution 181-205
(2d ed. 1959).
3.See Judith N. Shklar, Political Theory and the Rule of Law, in The Rule of Lav.
Ideal or Ideology 1, 1 (Allan C.Hutchinson &Patrick Monahan eds., 1987); Lawrence B.
COLUMBIA LAW REVEW
[Vol. 97:1
Law with natural law or respect for transcendent rights. 4 In another fa-
mous account-perhaps the most influential of the past half-centuryLon L. Fuller argued that the Rule of Law requires publicly promulgated
rules, laid down in advance, and adherence to at least some natural-law
values.5 By contrast, positivists have insisted that the Rule of Law is one
6
thing, its moral virtue or abomination something else.
In American legal discourse, debates about the historical and conceptual foundations of the Rule-of-Law ideal are seldom engaged directly. 7 Indeed, many invocations of the Rule of Law are smug or hortatory.8 Within the twentieth century, however, references to the Rule of
Law have increasingly acquired either defensive or accusatory tones. 9
The sources of unease are multiple, and possibly even conflicting. But
any account should begin with the familiar contrast between "the Rule of
Solum, Equity and the Rule of Law, in The Rule of Law: Nomos XXXVI, at 120, 121 (Ian
Shapiro ed., 1994).
4. See John Finnis, Natural Law and Natural Rights 272 (1980); Randy E. Barnett,
Foreword: Unenumerated Constitutional Rights and the Rule of Law, 14 Harv.J.L. & Pub.
Pol'y 615, 629-30 (1991); Frank I. Michelman, Law's Republic, 97 Yale L.J. 1493, 1510-13
(1988). See generally Lloyd L. Weinreb, Natural Law and Justice (1987) (discussing
natural law tradition).
5. See Lon L, Fuller, The Morality of Law 42-44 (rev. ed. 1964).
6. See, e.g., Joseph Raz, The Rule of Law and Its Virtue, in The Authority of Law:
Essays on Law and Morality 210, 224 (1979) (distinguishing between formal and
substantive theories of the Rule of Law); Robert S. Summers, A Formal Theory of the Rule
of Law, 6 RatioJuris 127, 139-141 (1993) (answering in the negative the question whether
there is at least some moral value in every legal system); see also Jeremy Waldron, Kant's
Legal Positivism, 109 Harv. L. Rev. 1535, 1536-38 (1996) (provocatively ascribing a
positivist view to Immanuel Kant).
7. There are of course important exceptions, including Guri Ademi, Legal
Intimations: Michael Oakeshott and the Rule of Law, 1993 Wis. L Rev. 839 (exploring the
philosophical foundations of Oakeshott's conception of the Rule of Law); Fred Dallmayr,
Hermeneutics and the Rule of Law, 11 Cardozo L Rev. 1449, 1451-59 (1990) (tracing
"historical trajectory" of evolving understandings of the Rule of Law); and Margaret Jane
Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 783 (1989) (assessing
compatibility of the Rule-of-Law ideal with a "social practice" conception of rules,
according to which "agreement in action does not follow from there being a pre-existing
rule; agreement in action is the only basis for claiming that there is a rule").
Michelman, supra note 4, at 1499-1503 & n.24, traces the Rule-of-Law ideal in
American constitutional discourse to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803), and Chief Justice Marshall's famous dictum that American government would
cease to deserve the name of"a government of laws, and not of men," if its "laws furnish no
remedy for the violation of a vested legal right."
8. See Shklar, supra note 3, at I (observing that "the phrase 'the Rule of Law'... may
well have becomejust another of those self-congratulatory rhetorical devices that grace the
public utterances of Anglo-American politicians").
9. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law
349 (1990) (asserting that law is increasingly politicized and that the status of the Supreme
Court as a symbol of the Rule of Law is therefore compromised); Radin, supra note 7, at
781-82 (maintaining that "it is too soon to throw out the Rule of Law," although "the
concept should be reinterpreted").
1997]
RULE OF LAW
Law" and "the rule of men [sic]." 10 Within perhaps the most familiar
understanding of this distinction, the law-and its meaning-must be
fixed and publicly known in advance of application, so that those applying the law, as much as those to whom it is applied, can be bound by it. If
courts (or the officials of any other institution) could make law in the
guise of applying it, we would have the very "rule of men" with which the
Rule of Law is supposed to contrast.
This account is undoubtedly far too crude; one of my principal aims
in this Article is to qualify and revise it. Nonetheless, the caricature contains a glint of truth, which helps to illuminate the doubt and confusion
that have increasingly surrounded debates about the Rule of Law and its
implications for American constitutional democracy. In particular, uncertainty, and confusion have mounted among those who, on the one
hand, are disposed to accept (or at least find it hard to reject) the rough
sketch of the Rule of Law drawn above and yet, on the other hand, believe that the American legal system must surely count as a paradigm of
the Rule of Law. Respect for the Rule of Law is central to our political
and rhetorical traditions, possibly even to our sense of national identity.1
Yet the modem American legal system departs significantly from the provisional account of the Rule of Law that I just provided, and it is strongly
arguable that no plausible legal system could avoid departing from it in
2
some respects.'
A mix of political, jurisprudential, and intellectual currents has produced this state of affairs. Politically, twentieth-century legislatures have
10. See Marbu, 5 U.S. (1 Cranch) at 163; supra note 7. As Professor Radin has
observed, "[t ] he ideal of 'the rule of law, not of men'" should be rephrased as "'the rule of
law, not of individuals.'" Radin, supra note 7, at 781 & n.1. History, however, has
accorded nearly canonical status to the formulation including the reference to "men," and
I shall hereafter employ that formulation without repeating the "[sic]." "[W]e must not
forget that when the ideal [of the Rule of Law] developed, and during most of its long
history, it was inconceivable that any individuals who were not 'men' could be part of
political life." Id.
For a recent account of the centrality of the distinction between the Rule of Law and
the rule of men in American political and legal thought, see Michelman, supra note 4, at
1499-1532.
11. See Michelman, supra note 4, at 1499-1503; see also United States v. Nixon, 418
U.S. 683, 708 (1974) (noting "our historic commitment to the rule of law"); Papachristou
v. City ofJacksonville, 405 U.S. 156, 171 (1972) ("The rule of law... is the great mucilage
that holds society together."); Bell v. Maryland, 378 U.S. 226, 346 (1964) (Black, J.,
dissenting) (observing that "this country" is "dedicated" to the Rule of Law).
12. See generally Morton J. Horwitz, The Transformation of American Law
1870-1960, at 213-46 (1992) (tracing anxieties about the Rule of Law surrounding'the
emergence of the modem administrative state); Allan C. Hutchinson &Patrick Monahan,
Democracy and the Rule of Law, in The Rule of Law: Ideal or Ideology, supra note 3, at 97
(criticizing the ideal of the Rule of Law as impossible of realization and incompatible with
democratic institutions).
COLUMBIA LAW REVIEW
[Vol. 97:1
vastly expanded the sweep of governmental regulation,' 3 and they have
frequently relied on administrative agencies with vague mandates and a
mixture of enforcement, rulemaking, and adjudicative powers to implement regulatory policies. 14 Administrative adjudication has sometimes
been an explicit occasion for policymaking. 15 Jurisprudentially, courts
have often strayed from the originally understood meaning of statutory
and constitutional provisions. 16 Intellectually, the Legal Realists and
their followers have advanced powerful claims that there is broad room
for judicial choice about which rule to apply to particular facts, about
how rules should be formulated, and about whether exceptions to recognized rules should be permitted. 17 Even some ardent defenders of liberal
legal institutions have acknowledged that legal interpretation is inherently "political."' 8
If administrative agencies can mix executive, lawmaking, and judicial
functions in implementing vague statutory mandates; if courts are not
bound by the originally understood or intended meaning of authoritative
legal texts; and if rules do not determine outcomes, then what, if anything, could be left of the Rule of Law? The Rule of Law is a regulative
ideal, not a mirror of what is done. The possible implication that our
institutions require sweeping reforms therefore deserves to be taken seriously. At the same time, questions arise about what claims a purported
ideal could plausibly exert on us if it is too far out of touch with reality.
Perhaps the Rule-of-Law ideal itself needs reform. Or, upon reflection,
should invocations of the Rule of Law be dismissed as empty, rhetorical
appeals to an ideal whose time is past?
This Article addresses these and other issues involving the Rule of
Law as a concept in contemporary debates. A principal ambition is
clarificatory: to develop a framework within which to analyze competing
claims about the Rule of Law in legal and political discourse. To provide
a foundation for this enterprise, Part I sketches the elements generally
recognized as constitutive of the Rule-of-Law ideal. Although agreement
13. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev.
1189, 1189-90 (1986). For a Rule-of-Law-based cry of protest, see generally Friedrich
Hayek, The Road to Serfdom 72-87 (1944).
14. See Richard J. Pierce, Jr. et al., Administrative Law and Process 27-38 (2d ed.
1992). For an early formulation of some of the Rule-of-Law issues posed by reliance on
administrative agencies, seeJ. Roland Pennock, Administration and the Rule of Law 6-20
(1941).
15. See, e.g., Securities & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 202-08
(1947); NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31 (1944).
16. See Bork, supra note 9, at 154-59; Thomas C. Grey, Do We Have an Unwritten
Constitution?, 27 Stan. L. Rev. 703, 707-09 (1975); Henry Paul Monaghan, Stare Decisis
and Constitutional Adjudication, 88 Colum. L. Rev. 723, 727-39 (1988).
17. SeeJoseph William Singer, The Player and the Cards: Nihilism and Legal Theory,
94 Yale L.J. 1, 14-19 (1984); Mark V. Tushnet, Following the Rules Laid Down: A Critique
of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 810-18 (1983).
18. See, e.g., Ronald Dworkin, A Matter of Principle 162 (1985);John Rawls, Political
Liberalism 236 (1993).
1997]
RULE OF LAW
on these elements establishes the Rule of Law as a shared concept, many
of the operative terms are vague. Understanding the vagueness of particular shared assumptions helps to clarify possible bases for disagreement.
And disagreement is common. Indeed, in contemporary constitutional
discourse it is by no means anomalous to find competing Rule-of-Law
claims arrayed against each other. In PlannedParenthood v. Casey, for example, the plurality (joint) opinion argued that the Rule of Law required
fidelity to the central holding of Roe v. Wade,1 9 while the dissenting opinion insisted that respect for the Rule of Law required Roe to be
20
reversed.
To elucidate the divergent assumptions that frequently underlie such
competing claims, Part II develops four models, which I initially present
as ideal-typical conceptions of the Rule of Law.2 ' These ideal types respectively conceive the Rule of Law in terms that I shall describe as (i)
historicist, (ii) formalist, (iii) Legal Process, and (iv) substantive. Nearly
all claims about the entailments of the Rule of Law, I argue, rest on assumptions modeled by one or more of these ideal types.
But the four ideal types, though heuristically useful, are also incomplete. Somewhat more specifically, each identifies the satisfaction of particular requirements as being both necessary and sufficient for the Rule
of Law and treats the values that are privileged by the other ideal types as
essentially irrelevant. This tendency to absolute prioritization of preferred values and total exclusion of others opens all of the ideal types to
telling criticism. The deficiencies begin to emerge, somewhat dialectically, in Part III, which considers the respective ideal types' implications
for issues of constitutional interpretation. As a continuing indication of
their utility, the ideal types frame important questions-whether, for example, the Rule of Law requires decision in accordance with the plain
19. 505 U.S. 833, 854-71 (plurality) (citing Roe, 410 U.S. 113 (1973)).
20. 505 U.S. 953-55 (Rehnquist, CJ., concurring in part and dissenting in part)
(1992). For a fuller discussion of the competing positions in Casey, see infra notes 111-123
and accompanying text. For other examples of cases involving express judicial disputation
about the requirements of the Rule of Law, see Romer v. Evans, 116 S. Ct. 1620, 1628
(1996) ("Central both to the idea of the rule of law and to our Constitution's guarantee of
equal protection is the principle that government and each of its parts remain open on
impartial terms to all who seek its assistance."); id. at 1634 (ScaliaJ., dissenting) (asserting
that the majority's claims about the Rule of Law are "proved false" by widely accepted
practices); McCleskey v. Zant, 499 U.S. 467, 492-93 (1991)
(defending doctrines
preserving the finality of criminal convictions as essential to the Rule of Law); id. at 529
(Marshall, J., dissenting) (characterizing limitations on habeas corpus review enforced by
the majority opinion as incompatible with the Rule of Law).
21. In the usage introduced by Max Weber, see Max Weber, Economy and Society
19-22 (Guenther Roth & Claus Wittich eds., 1978), ideal types are intellectual constructs
developed by a synthesis of familiar arguments and views but exhibiting a "conceptual
purity" that "cannot be found in reality." Carl G. Hempel, Aspects of Scientific
Explanation 156 (1965). Although not perfectly reflected in reality, ideal types can be
approached or approximated; "concrete phenomena can ... be compared for the purpose
of explicating some of their significant components." Id.
COLUMBIA LAW REVIEW
[Vol. 97:1
language or "original understanding" of legal texts, or is necessarily or
ideally a law of rules, or requires that the law possess particular substantive content. But the incompleteness of the ideal types also becomes
clear when they are tested by some of the Rule-of-Law issues that arise in
constitutional interpretation. In addition, as Part III demonstrates, many
participants in debates about the Rule of Law draw on different ideal
types in making different claims at different times.
Against this background, Part IV develops my principal affirmative
thesis: The Rule of Law is best conceived as comprisingmultiple strands, including values and considerationsto which each of thefour competing ideal types calls
attention. It is a mistake to think ofparticularcriteria as necessary in all contexts
for the Rule of Law. Rather, we should recognize that the strands of the Rule of
Law are complexly interwoven, and we should begin to consider which values or
criteriaare presumptively primary under which conditions. A problem, at least
in the short run, is that many and perhaps most of those now invoking
the Rule of Law probably lack any theory that explains how the ideal's
various strands relate to each other. For now, Part IV concludes, most
judgments of consistency and inconsistency with the Rule of Law should
be regarded as relatively ad hoc and conclusory (even though the features to which they call attention are clearly identifiable in light of the
ideal types).
Part IV also considers, but ultimately rejects, the proposal that because of the ad hoc and conclusory nature of most Rule-of-Law arguments, the Rule of Law should be dismissed as an ideal that has outlived
its usefulness. This proposal assumes that appeals to the Rule of Law can
be analyzed without loss as appeals to other values. Part IV refutes this
assumption. It argues affirmatively that the Rule of Law should be conceived as an architectonic ideal that not only subsumes but establishes
priorities among its component elements.
Part V offers some thoughts about the contours of a full and defensible theory of the Rule of Law. The Part begins with some observations
concerning the purposes that such a theory should be crafted to serve. It
also outlines considerations bearing on the relative significance, in diverse contexts, of the values reflected in the various Rule-of-Law ideal
types.
A methodological caveat may be in order. My aim in this Article is to
examine the ideal of the Rule of Law through the lens of American constitutional law, but my focus on constitutional issues is meant to be illustrative, not exhaustive. Certainly a theory of the Rule of Law should address issues involving statutes, statutory construction, and the common
law. My claim is only that issues of constitutional theory illuminate many
of the challenges that a successful theory of the Rule of Law would need
to meet, not that a theory of the Rule of Law should be concerned with
such issues exclusively.
My preoccupation with distinctively American institutions, phenomena, and issues might give rise to a related objection. A theory built on
19971
RULE OFLAW
this foundation, it might be protested,' would not be a theory of the Rule
of Law, but at most a theory of the Rule of Law in the American legal
system. Although this objection may hold some truth, a general theory of
the Rule of Law, disconnected from any legal system in particular, would
necessarily be thin and abstract. The Rule of Law is a human ideal, and
theories of the Rule of Law are inevitably framed to serve political or
moral interests. For us, the ideal of the Rule of Law is perhaps most
meaningful as a standard deployed in contemporary, domestic, legal, and
political debates. If a theory that is fitted to our most pressing purposes is
best characterized as a theory of the Rule of Law in the American legal
system, so be it.
I. GRouNDs OF AGRMENT AND DISAGREEMENT
The Rule of Law is what some philosophers have called an "essentially contestable concept": it has evaluative as well as descriptive elements, and its correct application cannot be fixed simply by appeal to
ordinary usage. 2 2 In more concrete terms, the "true," "best," or "preferred" meaning of the Rule of Law depends on the resolution of contestable normative issues; disagreements are therefore to be expected. Nonetheless, there is enough common ground for it to be relatively clear how
particular disputes fit into broader patterns.
A. Purposes and Elements of the Rule of Law
Efforts to specify the meaning of the Rule of Law commonly appeal
to values and purposes that the Rule of Law is thought to serve. 23 Three
such purposes-against which competing definitions or conceptions can
be tested-appear central. First, the Rule of Law should protect against
anarchy and the Hobbesian war of all against all.24 Second, the Rule of
Law should allow people to plan their affairs with reasonable confidence
22. See Radin, supra note 7, at 791 ("[T]he Rule of Law... is deeply ambiguous, a
contestable concept."). The notion of essentially contestable concepts was introduced by
W.B. Gallie, Essentially Contested Concepts, 56 Proc. of the Aristotelian Soc'y 167, 169
(1956) (defining essentially contested concepts as those which "inevitably involve[] endless
disputes about their proper uses [which] are perfectly genuine: which, although not
resolvable by argument of any kind, are nevertheless sustained by perfectly respectable
arguments and evidence"). For a more recent exposition, see William E. Connolly, The
Terms of Political Discourse 10-44 (2d ed. 1983).
23. See, e.g., John Rawls, A Theory of'Justice 235-43 (1971) (accounting for precepts
ofjustice associated with the Rule of Law by tracing connections between the Rule of Law
and liberty); Raz, supra note 6, at 219-23 (examining reasons to value the Rule of Law).
24. See Rawls, supra note 23, at 240; Geoffrey de Q. Walker, The Rule of Law:
Foundation of Constitutional Democracy 2-3, 24, 28-29 (1988); Richard A. Epstein,
Beyond the Rule of Law: Civic Virtue and Constitutional Structure, 56 Geo. Wash. L. Rev.
149, 149 (1987); see also Boddie v. Connecticut, 401 U.S. 371, 374 (1971) ("[T]he rule of
law.., allows society to reap the benefits of rejecting what political theorists call the 'state
of nature.'"); MortonJ. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 Yale
LJ. 561, 566 (1977) (book review) (noting "the Hobbesian vision of the state and human
nature on which our present conceptions of the rule of law ultimately rest").
COLUMBIA LAW REVIEW
[Vol. 97:1
that they can know in advance the legal consequences of various actions.2 5 Third, the Rule of Law should guarantee against at least some
26
types of official arbitrariness.
Against the background of these purposes, leading modem accounts
generally emphasize five elements 27 that constitute the Rule of Law. 28 To
the extent that these elements exist, the Rule of Law is realized.
(1) The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their2 9affairs. People must be
able to understand the law and comply with it.
(2) The second element of the Rule of Law is efficacy. The law
should actually guide people, at least for the most part. In Joseph Raz's
phrase, "people should be ruled by the law and obey it."3O
(3) The third element is stability. The law should be reasonably
stable, 3 1 in order to facilitate planning and coordinated action over time.
(4) The fourth element of the Rule of Law is the supremacy of legal
authority. The law should rule officials, including judges, as well as ordi32
nary citizens.
25. See Hayek, supra note 13, at 54, 72-75; Rawls, supra note 23, at 235; Raz, supra
note 6, at 220; Walker, supra note 24, at 25-27.
26. See Dicey, supra note 2, at 193-94; Friedrich A. Hayek, The Political Ideal of the
Rule of Law 41 (1955); Raz, supra note 6, at 219-20; Stephen Macedo, The Rule of Law,
Justice, and the Politics of Moderation, in The Rule of Law: Nomos XXXVI, supra note 3,
at 148, 149; see also Papachristou v. City ofJacksonville, 405 U.S. 156, 171 (1972) ("[T]he
rule of law implies equality and justice in its application.").
27. My list of desiderata differs in detail from, but is in spirit consistent with, Lon
Fuller's account of eight criteria that must be satisfied for law to exist: generality, publicity,
prospectivity, clarity, noncontradictoriness, capability of being followed, stability, and
congruence between norms as stated and norms as applied. See Fuller, supra note 5, at
33-39. Several of the criteria in Fuller's longer list are fairly subsumed by the requirement
that law should be capable of being followed, see Radin, supra note 7, at 785, and Fuller's
requirement of "congruence" assumes the availability of courts, which I follow others in
identifying explicitly as an element of the Rule of Law. See infra note 33 and
accompanying text.
28. In contrast with this constitutive relationship, the relation of the elements to the
purposes of the Rule of Law is more nearly instrumental. Among the reasons to value the
elements of the Rule of Law is that they promote the purposes with which the Rule of Law
is historically associated.
29. See Hayek, supra note 13, at 72-75; Rawls, supra note 23, at 236-37; Raz, supra
note 6, at 214; Walker, supra note 24, at 25-27; Gregory C. Keating, Fidelity to Pre-existing
Law and the Legitimacy of Legal Decision, 69 Notre Dame L. Rev. 1, 11 (1993).
30. Raz, supra note 6, at 213; see also Walker, supra note 24, at 41-42 (arguing that
"unless the law can command obedience, there is no legal system").
31. See Raz, supra note 6, at 214; Walker, supra note 24, at 25-27.
32. See Raz, supra note 6, at 212; Walker, supra note 24, at 31-32; Radin, supra note
7, at 790-91; cf. Missouri v.Jenkins, 115 S. Ct. 2038, 2068 (1995) (Thomas,J, concurring)
(pointing to historic understanding that "[i]f their remedial discretion had not been
cabined .... equity courts would have undermined the rule of law and produced arbitrary
government").
1997]
RULE OF LAW
(5) The final element involves instrumentalities of impartial justice.
Courts should be available to enforce the law and should employ fair
procedures.3 3
B. Basesfor Disagreement
Generally acknowledged elements suffice to mark a single, shared
concept of the Rule of Law, but they also leave room for significant disagreement and misunderstanding. First, several of the elements-such
as the requirement that the law should be "reasonably stable"-are vague.
People obviously will disagree about how vague terms are best
understood.
Second, no agreed standard exists for measuring the relative significance of departures from the Rule of Law's different elements. Nor is
there agreement concerning which kinds of departures are the primary
objects of concern. The Rule of Law is an ideal that can be used to evaluate laws, judicial decisions, or legal systems. A legal system that on the
whole comports with the Rule of Law may nevertheless include regulations or decisions that do not.
Third, the extent to which a legal system approaches the Rule-of-Law
ideal is itself a matter of degree.- 4 Probably no legal system realizes any
of the desiderata perfectly. Moreover, the defining elements of the Rule
of Law can sometimes conflict.3 5 For example, a relatively vague legal
standard may be less capable of effectively guiding conduct than a clear
rule,3 6 but a judicial decision replacing a standard with a rule might de-
part from the element of stability. In addition, if a court were to substitute a clear rule for a legislatively adopted standard, the question would
33. See Hayek, supra note 26, at 45; Rawls, supra note 23, at 238-39; Raz, supra note
6, at 216-17; Walker, supra note 24, at 37-40; Gerald F. Gaus, Public Reason and the Rule
of Law, in The Rule of Law: Nomos XXXVI, supra note 3, at 328, 329. The necessary
judicial role need not, at least on all theories, encompass review of legislative acts for
consistency with a written constitution; the demand is only for the availability of courts to
apply ordinary law. See Dicey, supra note 2, at 183-93. In the American context, however,
the association of the Rule of Law with judicial review is very strong. See Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (asserting that the government would not be
one "of laws, and not of men," if it failed to provide ajudicial remedy for every violation of
a vested legal right); RobertJ. Pushaw, Jr.,Justiciability and Separation of Powers: A NeoFederalist Approach, 81 Cornell L. Rev. 393, 413-25 (1996).
34. See, e.g., Hayek, supra note 26, at 33; Raz, supra note 6, at 228; see also Fuller,
supra note 5, at 5-9 (distinguishing between moralities of duty and of aspiration and
emphasizing the relevance of the latter to law).
35. See Walker, supra note 24, at 42-44.
86. On the distinction between rules and standards, see Mark Kelman, A Guide to
Critical Legal Studies 15-63 (1987); Frederick Schauer, Playing by the Rules: A
Philosophical Examination of Rule-Based Decision-Making in Law and in Life 104 n.35
(1991); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke LJ. 557,
591-92 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89
Harv. L. Rev. 1685, 1687-1713 (1976); Kathleen M. Sullivan, The Supreme Court, 1991
Term-Foreword. The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 56-69
(1992).
COLUMBIA LAW REVIEW
[Vol. 97:1
arise whether the court, in promulgating the rule, was itself ruled by law
in the relevant sense.
Fourth, and most important, it seems impossible to specify the elements of the Rule of Law without reference to "the law." Among the
most crucial questions, however, is what this reference can, should, or
must mean, especially insofar as the Rule of Law implies that officials,
including judges, must be ruled by law.3 7 For example, does the ideal of
judges acting under the law require that their decisions be determined by
rule? Does it demand that they be bound by the original understanding
or the Framers' intent? Does it suffice if judges, though not strictly
bound by rule or the original understanding, are constrained by legal
conventions and requirements of reasoned justification? Does the ideal
of law necessarily import moral standards?
These, obviously, are among the leading questions ofjurisprudence,
and it may ultimately prove impossible to reach a deep understanding of
the Rule of Law without exploring their complexities. My aim, however,
is to abbreviate the inquiry. To come to these questions as part of an
inquiry into the Rule of Law alters their significance. If the Rule of Law is
an ideal, which can be approached more or less closely, then the concept
of "law" that the Rule of Law presupposes may admit of more and less
ideal approximations. In other words, "law" may be more or less law-like
(in the ideal sense of the term). This should be agreed in principle even
among those with strong disagreements about how, precisely, the ideal of
law presupposed by the Rule of Law ought to be conceived. For example,
even a positivist, who thought law conceptually distinct from morals,
might believe that the ideal of the Rule of Law could be more or less
closely realized, depending on the extent to which prevailing legal norms
were clear38 and complete and thus minimized reliance on judicial
discretion.
II. FoUR RuLE-oF-LAw IDEAl TYPES
This Part develops four ideal-typical conceptions of the Rule of Law:
a historicist, a formalist, a Legal Process, and a substantive ideal type.
Each of these ideal types reflects assumptions about what law must or
should be to fulfill the requirements of the Rule of Law that are familiar
in constitutional discourse. Moreover, each represents a plausible approach to the protection of values reasonably associated with the Rule of
Law. Although I do not wish to defend any of the ideal types as offering
an adequate theory of the Rule of Law, this Part does try to establish that
none is incoherent.
I should emphasize at the outset that the Rule-of-Law ideal types are
not intended to mirror the views of any particular person, but are more
37. Cf. Hayek, supra note 26, at 33 ("[W]e at once encounter all the problems raised
by the Rule of Law if we ask what precisely in this formula is meant by 'law.' ").
38. See Raz, supra note 6 (adopting this view).
1997]
RULE OFLAW
nearly ideal types in the Weberian sense-clarifying abstractions, introduced for heuristic purposes, that may be approached more or less
closely.3 9 When I associate particular individuals with one of the ideal
types, I do not mean to imply that those individuals' theories of the Rule
of Law are limited in the ways that the ideal types are limited-only that
the ideal types help to illuminate an important strain in their thinking.4 °
A. The HistoricistIdeal Type
Historicist conceptions associate the Rule of Law with rule by norms
laid down by legitimate lawmaking authorities prior to their application
to particular cases. 4 1 At least two concerns animate this approach. First,
historicist conceptions aim to explain howjudges (as well as ordinary citizens) can be ruled by law, rather than creating it in adjudication.4 The
second aspiration, which is equally important, is to respect an ideal of
legal legitimacy by associating the law's substantive content with past,
publicly accountable acts by decisionmakers who are recognized under
historically established norms as possessing legitimate lawmaking
power.43 Theories associated with the historicist ideal type typically
regard lawmaking as irreducibly political and rife with potential for arbitrariness and partisanship; many proponents appear to view lawmaking as
politically legitimate only when it satisfies relatively stringent norms of
democratic accountability.4
39. See supra note 21.
40. As presented in this Part, each ideal type can be shown to be one-sided or partial,
even though I believe that each can contribute important insights to a more general
theory. It may be that those whose arguments the ideal types are developed to illuminate
would agree in my ultimate assessment that the ideal types are incomplete; they may have
intended their arguments to express no more than an aspect, albeit one possessing
predominant importance under at least some circumstances, of the Rule-of-Law ideal.
41. See Raoul Berger, Federalism: The Founders' Design 19-20 (1987); Bork, supra
note 9, at 318; Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854
(1989).
42. See Berger, supra note 41, at 19-20; Bork, supra note 9, at 318; Antonin Scalia,
The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178-80 (1989).
43. Politically accountable legislatures have a prima facie claim to legitimate
lawmaking authority that courts do not. And the Constitution, which both empowers the
federal government and imposes limits on governmental power, purports to speak for "We
the People." For a provocative account of why that claim might remain credible today, and
thus privilege a Constitution initially ratified more than two hundred years ago over
legislation supported by current majorities, see I Bruce Ackerman, We The People:
Foundations 6-7 (1991). According to Ackerman, the people of the United States
constitute themselves as "We the People" only in times of the elevated political seriousness
that befits higher lawmaking. I take it to be implicit in his account that we today have
more reason to trust the conclusions reached by prior generations in political
deliberations characterized by this kind of engagement than to accept the judgments that
might emerge from the contemporary play of more ordinary politics.
44. The common law poses an obvious problem for the historicist ideal type. One
response views judges as possessing legitimate lawmaking authority within the common
law's proper domain. Cf. John Austin, The Province of Jurisprudence Determined 191
(1954) (asserting that law is a system of commands, some of which must be given by
COLUMBIA LAW REVIEW
[Vol. 97:1
The historicist ideal type of the Rule of Law is intended to model
some of the shared assumptions of-while avoiding commitments on the
issues that divide-approaches to constitutional and statutory interpretation that became prominent during the 1980s. 45 With respect to constitutional interpretation, "originalism" has emerged as the generic name for
theories maintaining that constitutional meaning should be fixed, as determinately as possible, either by the "original understanding" of the constitutional language or by the "intent" of the Framers and ratifiers. 46 Selfstyled originalists have tended to minimize the difference between "original understanding" and the Framers' "intent" as the focus of interpretation.47 For the most part, I shall use the term "originalism" to refer to
courts). Another contends that historically accepted norms might establish the legal
validity of the norms that constitute the common law. The latter approach would deny
that judges properly "make" law and uphold the traditional position that the law is
"found," not made. See 1 William Blackstone, Commentaries *69 (stating that thejudicial
function is not to "pronounce a new law, but to maintain and expound the old one").
Whatever the virtues or vices of the common law in other contexts, theorists
approaching the historicist ideal type contend that it is unacceptable for judges and
justices to develop constitutional law on a common law model, since judicial decisions that
purport to interpret the Constitution are not subject to legislative override. See, e.g., Bork,
supra note 9, at 6-7 (asserting that when courts depart from the original constitutional
understanding, they "assume a legislative power that is actually superior to that of any
legislature").
45. For examples of such approaches see Berger, supra note 41; Edwin Meese IlI,
Toward a Jurisprudence of Original Intent, 11 Harv. J.L. & Pub. Pol'y 5 (1988); Scalia,
supra note 41. According to Professor Kahn, historicist approaches to constitutional
interpretation first arose in the generation following the ratification of the original
Constitution, as judges and lawyers increasingly experienced a sense of political and
historical distance from the political judgments that the Constitution embodied. See Paul
W. Kahn, Legitimacy and History- Self-Government in American Constitutional Theory
32-64 (1992).
46. See, e.g., Earl M. Maltz, Rethinking Constitutional Law 15-36 (1994); Monaghan,
supra note 16, at 723 & n.2, 725-26.
47. See, e.g., Maltz, supra note 46, at 26 (suggesting that these intra-familial
differences are minor in comparison with those that divide originalist from other types of
constitutional theory); Monaghan, supra note 16, at 723 n.2 ("I use interchangeably the
terms original understanding, originalism, and original intent."); cf. Bork, supra note 9, at
144 ("Though I have written of the understanding of the ratifiers... that is actually a
shorthand formulation, because what the ratifiers understood themselves to be enacting
must be taken to be what the public of that time would have understood the words to
mean."). As critics have pointed out, there is an analytical distinction between approaches
based on the private intentions of those who ratified (and especially those who wrote) the
Constitution, on the one hand, and approaches focused on the original "public
understanding of the language when the Constitution was developed." Monaghan, supra
note 16, at 725; see also Paul Brest, The Misconceived Quest for the Original
Understanding, 60 B.U. L. Rev. 204, 214 (1980). Originalists have sometimes tried to
narrow the gap by arguing that sources such as the Records of the Constitutional
Convention, although most probative of the intentions of the Framers, also provide strong
evidence of how relevant language would have been understood by the ratifiers and the
public generally. See, e.g., Bork, supra note 9, at 144 (arguing that sources such as
Madison's private notes on the Convention "are merely evidence of what informed public
1997]
RULE OF LAW
both approaches, but will treat theories that would fix constitutional
48
meaning by reference to "original understanding" as more standard.
Critics of constitutional originalism, often steeped in "hermeneutic"
theory, 49 have argued that the originalist project would be difficult or
even impossible to effectuate. It is clear, for example, that neither the
intent of a group of lawmakers nor the original meaning of a legal text is
a simple historical fact awaiting discovery by diligent researchers. Intent
is a complex and multifaceted concept. And fixing the relevant intent of
a multi-member body, concerning specific issues that some members
never considered and as to which others may actually have diverged, is a
constructive enterprise from which an interpreter's assumptions, values,
and goals can never be excluded entirely.50 Identifying the original understanding of a legal text similarly depends on an ascription of pur-
pose;5 1 especially as historical circumstances change, the ascription of
purpose inevitably occurs in light of the assumptions, values, 52and goals of
an interpretive community, if not an individual interpreter.
Although critics have often viewed these arguments as devastating to
positions associated with the historicist ideal type, defenders have generally dismissed the attacks, 55 and not wholly without reason. If the Rule of
Law is an ideal, to show that it can never be realized completely by no
means establishes that the ideal should be abandoned. Sensible defenders of the methods associated with the historicist ideal type claim no more
54
than to approximate the Rule of Law as closely as possible.
As if in response to this modest account of originalism's aims, a related objection holds that its underlying ideal is not simply difficult to
men of the time thought the words of the Constitution meant"); see also Brest, supra, at
214-22 (noting the availability of this strategy).
48. By contrast, debates about appropriate methods of statutory interpretation have
emphasized the difference between a statute's public meaning, on the one hand, and the
meaning intended by Congress, on the other. For good, recent discussions of the debate's
history and stakes, see William N. Eskridge, Jr., Dynamic Statutory Interpretation 205-38
(1994); RichardJ. Pierce,Jr., The Supreme Court's New Hypertextualism: An Invitation to
Cacophony and Incoherence in the Administrative State, 95 Colum. L. Rev. 749, 766-76
(1995).
49. The canonical text is Hans-Georg Gadamer, Truth and Method (2d ed. 1988).
Accessible explorations of the implications of hermeneutic theory for legal, and especially
constitutional, interpretation include DalImayr, supra note 7; David C. Hoy, Interpreting
the Law: Hermeneutical and Poststructuralist Perspectives, 58 S. Cal. L Rev. 136 (1985);
Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence:
Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. Pa. L. Rev. 371
(1992).
50. See Dworkin, supra note 18, at 38-57; Brest, supra note 47, at 209-17.
51. See Monaghan, supra note 16, at 726 ("To know what the norm 'means,' one
must resort to inquiries about purpose and expected consequences.").
52. See id. at 726-27.
53. See, e.g., Bork, supra note 9, at 163; Scalia, supra note 41, at 856-57.
54. See Bork, supra note 9, at 163 (observing that "perfection" is unattainable and
that "the best we can do must be regarded as good enough-or we must abandon the
enterprise of law"); Scalia, supra note 41, at 856-61.
COLUMBIA LAW REVIEW
[Vol. 97:1
realize, but literally incoherent. On this view, conceptions of the Rule of
Law that appeal to historical meaning characteristically assume an untenable dichotomy between subject (the interpreter) and object (the original meaning to be recovered). 55 In fact, the argument maintains, both
subject and object are situated in and at least partly constituted by a particular, shared history and culture: neither can be conceived independently of the hermeneutic circle in which both are located, and the ideal
of recovering a "meaning" that is independent of the interpretive context, including the interests and values of the interpreter, is not just impossible, but senseless.56
The critics are correct that a historicist ideal type of the Rule of Law,
in order to be coherent, must be conceived as internal to a legal culture,
form of life, hermeneutic circle, or interpretive community; 57 meaning
cannot be conceived as independent of culture, context, or shared understandings. After the unavoidable relevance of these variables is acknowledged, however, it remains tenable to distinguish between hermeneutic
efforts to understand a text or legal norm and attempts to craft historically based rationalizations for results reached on other grounds. The
historicist ideal type needs to insist on no more. The hermeneutic ideal
is surely coherent; and, depending on the richness of historical understanding, it can be approached more or less closely. In short, "originalism," "original understandings," and the historicist ideal type can be conceived in ways that survive the principal insights of hermeneutic theory.
Following the principle of interpretive charity, I shall use these terms accordingly in the balance of this Article.
B. The FormalistIdeal Type
According to a formalist conception of the Rule of Law, the ideal if
not necessary form of "law" is that of a "rule," conceived as a clear prescription that exists prior to its application and that determines appropriate conduct or legal outcomes. 58 Underlying the formalist ideal type is a
55. See FrancisJ. Mootz III, Is the Rule of Law Possible in a Postmodern World?, 68
Wash. L. Rev. 249, 291 (1993).
56. Cf. Stanley Fish, Is There a Text in this Class? The Authority of Interpretive
Communities 1, 338 (1980) (denying "the assumption that the text and the reader can be
distinguished from one another" and asserting that "the fact of agreement, rather than
being a proof of the stability of objects, is a testimony to the power of an interpretive
community to constitute the objects upon which its members (also and simultaneously
constituted) can then agree").
57. There are important differences among these terms, with significant theoretical
implications, but none, I think, that threatens the central point I wish to make. See
generally Hoy, supra note 49 (exploring the implications of various hermeneutical and
post-structuralist interpretive concepts for legal interpretation).
58. See, e.g., Scalia, supra note 42, at 1178-80 (defining the Rule of Law to include
"authorized governance... through published formal rules"); Summers, supra note 6, at
129; see also Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1497 n.18 (1994) (quoting the
observation in Stephen R. Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev.
425, 471 (1982), that "[t]he rule of law... is a defeasible entitlement of persons to have
1997]
RULE OF LAW
picture of human beings as rational planners and maximizers, who reasonably demand to know in advance the legal consequences of alternative
courses of action. 59 On this view, rules provide maximally effective
guides to behavior and ensure that judges, as much as other officials, are
bound by law. 60 Because blurry lines of authority promote uncertainty,
formalism also6 idealizes a sharp division between the legislative and judicial functions. '
In contemporary debates, perhaps the most prominent formalist is
Justice Antonin Scalia, author of a celebrated article entitled "The Rule
of Law as a Law of Rules."6 2 Justice Scalia portrays rules as uniquely contheir behavior governed by rules publicly fixed in advance"). According to a recent,
sympathetic commentator, formalists believe that it is possible to look first at a set of facts,
and then at a rule, and to determine on linguistic grounds (without special or artificial
legal reasoning) whether the facts are "subsumed" by the rule. See Schauer, supra note 36,
at 84 n.13; see also Radin, supra note 7, at 793 ("Traditionally, legal 'formalism' is the
position that a unique answer in a particular case can be 'deduced' from a rule, or that
application of a rule to a particular is 'analytical.'").
Within contemporary constitutional discourse, the formalist position is associated with
a preference for "rules," which can be applied to particular cases to determine outcomes
with little or no moral or practical calculation by the decisionmaker (e.g., "no driving over
60 miles per hour"), over "standards," which invite or require resort by the decisionmaker
to underlying values and an assessment of their significance in particular contexts (e.g.,
"no driving at unreasonably fast speeds"). See, e.g., Kennedy, supra note 36, at 1687-88
(differentiating similarly rules from standards); Sullivan, supra note 36, at 58 (same).
When rules are conceptualized in this way, the distinction between rules and standards is
not always sharp; "ruleness" is a matter of degree. See id. at 58 & n.231.
This conception of rules as relatively determinate prescriptions that minimize the
necessity for moral or practical calculation in application, which I take to be central to
modem formalism, is not the only possible one. Cf. Scott Brewer, Exemplary ReasoningSemantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L.
Rev. 923, 972 (1996) (defining "'rule' in a more logically spare manner, as a prescriptive
proposition that has a logical structure the most abstract form of which is reflected in the
standard conditional proposition, either propositional ('if P then 1Z) or predicate ('for all
x, if x is an F then x is a G')").
59. See Landgraf 114 S.Ct. at 1497 ("In a free, dynamic society, creativity in both
commercial and artistic endeavors is fostered by a rule of law that gives people confidence
about the legal consequences of their transactions.").
60. See Frank H. Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349,
373-74 (1992); adin, supra note 7, at 796; see also Brewer, supra note 58, at 992-93
(asserting that "rule of law ideal norms... presuppose that legal commands-including
those embedded in legal analogies-are deductively applicable, and that vague norms-of
the sort with which one is left if legal commands are not deductively applicable-are
inconsistent with those basic values").
61. See Morrison v. Oison, 487 U.S. 654, 726-27 (1988) (Scalia, J., dissenting); cf.
Charles Fried, Order and Law: Arguing the Reagan Revolution-A Firsthand Account
151-54 (1991) (asserting that the Rule-of-Law ideal demands clear lines of political
accountability within the separation of powers).
62. See Scalia, supra note 42; see also Burnham v. Superior Court, 495 U.S. 604, 626
(1990) (Scalia, J., plurality opinion) (contrasting freestanding "reasonableness" inquiries
with the Rule-of-Law values served by treating presence as a per se legitimate basis for
personal jurisdiction); Morrison, 487 U.S. at 733 (Scalia, J., dissenting) ("A government of
laws means a government of rules.").
COLUMBIA LAW REVIEW
[Vol. 97:1
sonant with Rule-of-Law values and maintains that both statutes and constitutional directives, when properly read, typically yield clear, rule-like
meanings. 63 There are also formalist strands in the works of writers as
diverse as Dicey, 64 Hayek,65 and Rawls, 66 all of whom have lauded deter-
minate rules as necessary to protect particular substantive values, and
Fuller, who emphasized the necessary connection between legal form and
the efficacy of law in achieving any substantive end. 67
Despite distinguished support, the formalist ideal type has been
largely on the defensive since the assault mounted by Legal Realism. One
important strand of criticism, rule skepticism, 68 objects that legal rulesabstracted from human assumptions, conventions, aims, and biasesneither do nor could determine legal outcomes. No rule, it is said, can
determine its own extension. 69 As a result, the question whether a rule
applies to particular facts can always arise. To say that the question can
arise is not, of course, to say that it cannot be answered, or even that
there will not be broad agreement concerning the correct answer; frequently, perhaps typically, one will seem right or natural. But, the rule
skeptic insists, what makes one answer seem right or natural will be external to the rule, and it may be culturally contingent, politically biased, or
otherwise contestable.7 0
Cast in this form, rule skepticism does little damage to any sensibly
formulated version of Rule-of-Law formalism. Formalism requires only
that legal directives be generally and rationally comprehensible as mandating particular conduct or outcomes. As long as rules are experienced
as effective in guiding conduct-as long as those at whom rules are di63. See Scalia, supra note 42, at 1183. Professor Sullivan observes:
Justice Scalia's model for judicial rulemaking in constitutional law is not that of
the common law, but of the civil code. Here is the codifier at work: first, state the
general rule; second, rationalize the existing messy pattern of cases by
grandfathering in a few exceptions and doing the best you can to cabin their
reach; and third, anticipate future cases in which the rule might be thought
problematic and dispose of them in advance ....
Sullivan, supra note 36, at 87.
64. See Dicey, supra note 2; at 183-93.
65. See Hayek, supra note 26, at 32-45; Hayek, supra note 13, at 72-87.
66. See Rawls, supra note 23, at 235.
67. See Fuller, supra note 5, at 41-44.
68. For discussion of rule skepticism and its varieties, see Andrew Altman, Critical
Legal Studies: A Liberal Critique 152-55 (1990); Radin, supra note 7, at 797-801.
69. See, e.g., Mark V. Tushnet, Scalia and the Dormant Commerce Clause: A Foolish
Formalism?, 12 Cardozo L. Rev. 1717, 1737 (1991) (citing Ludwig Wittgenstein,
Philosophical Investigations § 85 (1953)); cf. Frederick Schauer, Rules and the RuleFollowing Argument, Can. J.L. &Jurisprudence, July 1990, at 187, 187-88 (arguing that
lawyers, and especially critical lawyers, have frequenty misappropriated Wittgenstein's
views). For a thoughtful assessment of the implications of Wittgenstein's rule-following
arguments for legal practice and the Rule of Law, see Radin, supra note 7, at 797-810.
70. See Singer, supra note 17, at 19-24; Tushnet, supra note 17, at 821-24.
1997]
RULE OF LAW
rected generally concur in their understandings-the central claims and
71
aspirations of formalism remain relatively intact.
A second ground of challenge depicts formalism as an unattainable
and, in any event, an unattractive ideal.7 2 This criticism begins with a
claim that vagueness and open texture are inherent in language. 73 Clear
rules are not always possible. In addition, uncertainty of aim is ineliminable in legislation. 74 Once uncertainty of aim is recognized, it may frequently be undesirable for the legislature to attempt to provide an advance, rule-like resolution of all legal questions that may arise, or for
courts to assume that the legislature would have intended to do so.75
This criticism is clearly a potent one, but it is at least partly blunted
by acknowledgement that the Rule of Law is an ideal that not only may be
approached more or less closely, but may also conflict in some cases with
other political ideals. To the extent that the legal system is not rule-like,
important values-reflected in the traditionally recognized elements of
the Rule of Law-are likely being sacrificed. Often those Rule-of-Law values may call for reform. Moreover, even when departures from Rule-ofLaw values may be justified to promote other, substantive political values,
it may be unwise and dishonest
to prefer a conception of the Rule of Law
76
that conceals the trade-off.
71. See Frederick Schauer, Formalism, 97 Yale LJ. 509, 544 (1988); cf. John Stick,
Can Nihilism Be Pragmatic?, 100 Harv. L. Rev. 332, 356 (1986) (asserting that, at least
since Holmes, "most of the legal tradition has acknowledged that legal 'reason' includes
legal culture, conventions, common sense, and politics, as well as formal logic").
72. See Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953, 978-96 (1995).
73. "Vagueness" and "open texture" are usefully distinguished for some purposes. "A
vague term is one about whose criteria of application, regarding a given object or set of
objects, at a specific time, a language user or group of language users has some doubt."
Brewer, supra note 58, at 993. By contrast, "[ain open-.txtured term.., has the possibility of
vagueness at some time, even if it is not vague on some particular occasion of use." Id.
74. See H.L.A Hart, The Concept of Law 125 (1961).
75. The classic source for the insight underlying this claim is Aristotle, Nichomachean
Ethics 1137b. For modem arguments that the Rule of Law can and should incorporate
this Aristotelian insight, see Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Aff.
83, 92-96 (1993); Solum, supra note 3, at 120-21.
76. See Raz, supra note 6, at 228. A similar response might be made to the somewhat
broader, more radical critique that modem legal systems-including that of the United
States in particular-depart so far from the formalist ideal type that the ideal type should
be rejected as an unrealistic sham. Cf. Roberto Mangabeira Unger, Law in Modem
Society: Toward a Criticism of Social Theory 181 (1976) (asserting that "the very
assumptions of the rule of law ideal appear to be falsified by the reality of life in liberal
society"). To the extent that the American legal system is not rule-like, it can, and arguably
should, be made more so. The criticism is sometimes urged that doctrinal rules are
regularly paired with counter-rules that prescribe the opposite result and thus leave the
judge with what is in effect a legally undetermined choice. See, e.g., Kennedy, supra note
36, at 1700 ("Agreements that gratuitously increase the obligations of one contractual
partner are unenforceable for want of consideration. But, such agreements may be
binding if the judge can find an implied recission of the old contract and the formation of
a new one incorporating the unilaterally onerous terms."); Singer, supra note 17, at 15
(stating that decisionmakers typically "decide among alternative legal rules [that] turn out
COLUMBIA LAW REVIEW
[Vol. 97:1
C. The Legal Process Ideal Type
Legal Process conceptions find the requisites of "law" necessary for
the Rule of Law to be satisfied by a mixture of (i) procedural fairness in
the development and application of legal norms, 7 7 (ii) an (assumed) internal connection between notions of law and reasonableness, 78 (iii) reasoned elaboration of the connection between recognized, pre-existing
sources of legal authority and the determination of rights and responsibilities in particular cases, 79 and (iv) judicial review as a guarantor of procedural fairness and rational deliberation by legislative, executive, and administrative decisionmakers.8 0 Defined in this way, Legal Process
to be contradictory. In other words, all of us accept certain arguments in some situations
and reject those same arguments in other situations."). To this complaint, the response is
equally plain: if rules are (or appear to be) paired with counter-rules, the respective
domains of the rules and counter-rules should be clarified, to make application more
uniform and predictable.
Pressing the radical critique a level deeper, Duncan Kennedy has claimed that,
because of a "fundamental contradiction" in the human self-understanding that underlies
liberal legal orders, a recurrent pairing of rules with counter-rules or exceptions is
practically ineliminable in generally liberal cultures and would subvert any effort to
develop and maintain a system of rules susceptible of relatively mechanical application.
See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205,
211-13 (1979). Although Kennedy is surely correct that familiar and even fundamental
human values sometimes conflict, it does not follow that rationally grounded choices
among them cannot be made, that rules reflecting such choices cannot escape relations of
formal "contradiction" with other rules, or that the application of legal rules and principles
cannot be relatively predictable and consistent. See Ronald Dworkin, Law's Empire
174-75 (1986).
77. See, e.g., Henry M. HartJr. & Albert M. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 4-5, 152-53, 157-58, 695 (William N. Eskridge, Jr. &
Philip P. Frickey eds., 1994); Todd D. Rakoff, The Shape of Law in the American
Administrative State, 11 Tel Aviv U. Stud. L. 9, 28 (1992) ("[1]n the American context, the
...rule of law should be understood to demand that all exercises of official power have a
legal structure, which can exist in any one of several forms."); see also Wisconsin v.
Constantineau, 400 U.S. 433, 436 (1971) (observing that "it is procedure that marks much
of the difference between rule by law and rule by fiat"); Joint Anti-Fascist Refugee Comm.
v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring) ("It is procedure that spells
much of the difference between rule by law and rule by whim or caprice.").
78. See Hart & Sacks, supra note 77, at 1378 (calling for statutory interpretation based
on the assumption that "the legislature was made up of reasonable persons pursuing
reasonable purposes reasonably").
79. See, e.g., Steven J. Burton, Judging in Good Faith 36-37 (1992); Hart & Sacks,
supra note 77, at 145-52; Frank L Michelman, Justification (andJustifiability) of Law in a
Contradictory World, in Nomos XXVIII: Justification 71, 72-73 (. Roland Pennock &
John W. Chapman eds., 1986); cf. California v. Ramos, 463 U.S. 992, 1029 (1983)
(Blackmun, J., dissenting) (arguing that the Court majority "does the rule of law
disservice" by "substituting an intellectual sleight of hand for legal analysis").
80. See, e.g., Louis L. Jaffe, Judicial Control of Administrative Action 320 (1965)
("The aailability of judicial review is the necessary condition, psychologically if not
logically, of a system of administrative power which purports to be legitimate, or legally
valid."); Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal
Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1372, 1401 (1953) (positing the
role of courts as guarantors of governmental lawfulness).
1997]
RULE OF LAW
conceptions deny that law necessarily consists solely of rules that pre-exist
the occasions of their application;8 ' in more practical terms, they dispute
that it necessarily violates the Rule of Law for administrative agencies to
treat adjudication as an occasion for policymaking, for courts to weigh
arguments of principle and policy rather than apply rules mechanically,
or for the Supreme Court to adapt constitutional doctrine to reflect historically evolving needs, expectations, and values. Instead, the Legal Process ideal type attempts to root law at least partly in a current, normative
consensus perceived as adequate to validate particular decisionmaking
processes and their outcomes as lawful.8 2 On the one hand, consensus
identifies the kinds of institutions appropriate to render particular kinds
of decisions; 83 on the other, consensus roughly frames the substantive
and procedural demands that such institutions must satisfy in order to
legitimate their judgments.8 4 Especially in their characterization of
courts and the judicial role, theories approaching the Legal Process ideal
type tend to conceive the subjects of legal justice as reasonable persons,
open to argument and persuasion, and deserving of reasoned explanations that the law should aspire to provide.8 5
Legal Process conceptions of the Rule of Law rose to prominence
beginning in the 1950s, in the wake of Legal Realism, largely in response
to perceived inadequacies of the historicist and especially the formalist
ideal types. 86 The impulse behind much of the work that this conception
aims to model is explicitly rationalizing: it seeks to explain how the
American legal system could satisfy at least the minimum requisites of the
Rule of Law despite conspicuous departures from the formalist
87
conception.
81. See, e.g., Michelman, supra note 79, at 82-83; Radin, supra note 7, at 783; David
A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 884-85
(1996) (advocating the legitimacy of "judge-made" constitutional law) ;J. Harvie Wilkinson
III, The Role of Reason in the Rule of Law, 56 U. Chi. L. Rev. 779, 792-801 (1989).
82. See, e.g., Harry H. Wellington, Interpreting the Constitution: The Supreme
Court and the Process of Adjudication 5-19, 81-82 (1990); Michelman, supra note 79, at
83; Gary Peller, Neutral Principles in the 1950s, 21 U. Mich. J.L. Reform 561, 586-91
(1988); Wilkinson, supra note 81, at 792-98; cf. William N. Eskridge, Jr. & Philip P. Frickey,
The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26,
76-81 (1994) (arguing that the Supreme Court best promotes Rule-of-Law values by
adopting a dynamic approach to interpretation aimed at maintaining or achieving a
politically acceptable and stable "equilibrium"). But cf. id. at 29, 42 (equating Rule-of-Law
values with "formalist" approaches "in which the Court neutrally or objectively applies
authoritative text or precedent to new issues").
83. See Hart & Sacks, supra note 77, at 3-6; Michelman, supra note 79, at 83.
84. See, e.g., Michelman, supra note 79, at 83; Strauss, supra note 81, at 925-34.
85. See, e.g., Hart & Sacks, supra note 77, at 3-6; Michelman, supra note 79, at 85.
86. See Bruce Ackerman, Reconstructing American Law 38-41 (1984); Peller, supra
note 82, at 566-86.
87. See, e.g., Horwitz, supra note 12, at 253-55; Edward A. Purcell, Jr., The Crisis of
Democratic Theory: Scientific Naturalism & the Problem of Value 78-79, 83-84 (1973).
Anyone could of course embrace the Legal Process ideal type without accepting all of the
Legal Realist critique. For example, it is not necessary to be a rule skeptic or otherwise
COLUMBIA LAW REVIEW
[Vol. 97:1
Noting the partlyjustificatory purposes for which Legal Process theories were developed, critics have offered forceful arguments that those
purposes are not realized in fact.8 8 One criticism emphasizes the Legal
Process ideal's relative flaccidity.8 9 Notoriously, reasonable people can
differ about the sufficiency of procedural safeguards and about the adequacy of particular attempts at reasoned elaboration to justify a result. 90
Consequently, the Legal Process ideal type may provide less sharp normative guidance than other ideal types, and it may invite uncertainty and
confusion about the Rule of Law. A related objection holds that there is
less consensus in society than those who developed the Legal Process conception typically supposed. 91 As a result, critics argue, current, normative
consensus cannot be relied on to bound the domain of properly legal
decisionmaking, and thus help to legitimate decisions reached within
that domain, in the way that the Legal Process conception assumes. 92
These are challenging arguments, but they prove less than is sometimes thought. Although revealing important weaknesses in some of the
justificatory enterprises in which the Legal Process ideal type has been
deployed, the criticisms that I have canvassed do not directly challenge
the coherence of the underlying Rule-of-Law ideal. It is entirely imaginable that forms of reasoned deliberation, structured by legal processes,
might occur within a normative consensus sufficient to bound the domain of the plausibly lawful and that the outcomes of such deliberative
processes might be experienced as inherently legitimate and deserving of
respect, even in the absence of clear rules specified in advance. 98 It is a
separate question, of course, to what extent the normative consensus contemplated by the Legal Process ideal type exists in fact; within the United
reject the coherence or workability of the formalist ideal type in order to believe that
other, less rigid models of adjudication are both desirable and consistent with the Rule of
Law.
Besides being compatible with Legal Realism's critique of formalism, the Legal
Process conception attempts to rationalize the departure from "originalist" principles
reflected in post-1937 constitutional law and to justify reliance on administrative agencies
that perform a mixture of executive, lawmaking, and adjudicative functions as consistent
with the Rule of Law. See generally Christopher F. Edley, Jr., Administrative Law:
RethinkingJudicial Control of Bureaucracy 4-7 (1990) (describing the emergence of the
Rule-of-Law approach to constraining administrative discretion); Jaffe, supra note 80
(assessing necessary and appropriate scope ofjudicial review of administrative action in a
regime that aspires to respect the Rule of Law); Rakoff, supra note 77, at 28-30 (discussing
the nebulous, though "substantial," legal framework within which agencies conform to the
Rule of Law).
88. See, e.g., Kelman, supra note 36, at 193-99; Feller, supra note 82, at 606-22.
89. See Tushnet, supra note 17, at 804-05, 824.
90. See id. at 805; cf. Fried, supra note 61, at 56-70 (developing a conception of the
Rule of Law with important similarities to the Legal Process ideal type, but arguing that,
beginning with the Warren Court, the "system ofjudging ... had run badly off the rails").
91. See William N. Eskridge, Jr. & Philip P. Frickey, An Historical and Critical
Introduction to the Legal Process, in Hart & Sacks, supra note 77, at li, cxviii-cxix.
92. See, e.g., id.; Feller, supra note 82, at 586-91.
93. See Michelman, supra note 4, at 1510-15.
1997]
RULE OF LAW
States today, there is deep disagreement concerning even central issues of
justice. Nevertheless, the legal system functions tolerably well. In particular, reasoned judicial decisionmaking within the conventions of legal argument continues to be widely, if not pervasively, accepted as inherently
lawful. It also may be significant that critics of the kind of "legalist justification" at the heart of the Legal Process ideal type "have not advocated
abolition of the courts or even of their power to set aside statutes as unconstitutional." 94 For now, however, there is no need to determine
whether practices within our existing legal culture satisfy the Rule-of-Law
desiderata thatjudges should be ruled by the law and that citizens should
be capable of knowing the law in advance and of being guided by it.95 It
is enough to recognize that the Legal Process ideal type models conceptions of the Rule of Law that deserve to be taken seriously. 96
D. The Substantive Ideal Type
A final, substantive ideal type insists that not merely any "rule," not
merely any "posit" of a lawgiver, and not merely any product of a reasoned deliberative process can satisfy the Rule of Law. According to this
conception, the Rule of Law implies the intelligibility of law as a morally
authoritative guide to human conduct. 97 In this view, the forms of lawwhich may encompass rules, conventions of legal reasoning, and
processes of legal deliberation-are unintelligible as legal forms in the
absence of rationally cognizable purposes that possess reasonable claims
to moral allegiance. 98
Although there are few consistent adherents of substantive conceptions of the Rule of Law, the substantive ideal type is at least approxi94. Michelman, supra note 79, at 83.
95. Compare Keating, supra note 29, at 2-3, 54-55 (generally offering an affirmative
answer) and Michelman, supra note 79, at 84-87 (same) with Berger, supra note 41, at
188-92 (giving a negative answer) and Tushnet, supra note 17, at 808-09 (same).
It is worth recalling that the Rule of Law, on all reasonable accounts, is an ideal that
may be more or less closely approximated. It may turn out to be a strength of the Legal
Process ideal type that it models one means-relatively independent of either clear rules
or determinate original understandings-by which the Rule of Law might be approached,
however imperfectly, in contemporary legal systems.
96. Among its virtues, the Legal Process ideal type does more than just furnish a
coherent account of how adjudication might reflect the Rule of Law rather than the rule of
men. As Frank Michelman has pointed out, such an account has the attractive feature of
explaining how lawmaking by constitutional ratifying conventions, legislatures, and
administrative agencies-as well as by courts-might be viewed as occurring "under law"
and thus as aspects of, rather than predicates for, the Rule of Law, and not of men. See
Frank I. Michelman, Always Under Law?, 12 Const. Commentary 227, 235-38 (1995);
Michelman, supra note 4, at 1500.
97. See ErnestJ. Weinrib, The Intelligibility of the Rule of Law, in The Rule of Law:
Ideal or Ideology, supra note 3, at 59, 61, 63.
98. See, e.g., Finnis, supra note 4, at 281-84; Weinrib, supra note 97, at 63-68; cf.
Smith v. United States, 423 U.S. 1303, 1307-08 (Douglas, Circuit Justice 1975) (asserting
that "[n]o regime under the rule of law could comport with constitutional standards that
drew [substantively arbitrary] distinctions").
COLUMBIA LAW REVIEW
[Vol. 97:1
mated by a good deal of contemporary scholarship positing an internal or
conceptual link between law (or some particular body of law) on the one
hand and substantive political theory on the other.99 Once this view is
adopted, it is impossible to achieve consistency with the Rule of Law unless the law that is enforced by officials satisfies a substantive test of moral
correctness or at least acceptability. To cite just a few examples, 100 a substantive conception of the Rule of Law makes appearances, at least, in the
writings of Ronald Dworkin, Richard Epstein, and Frank Michelman.
Dworkin's complexly layered theory equates the Rule of Law with the
consistent application of sound principles of political morality reflected
in authoritative legal materials. 1 1 Insofar as extant legal materials fail to
reflect a consistently ordered and rationally defensible set of principles, a
society will fall short of the ideal. At least some of the argumentation in
Epstein's book Takings also appears to presuppose a substantive conception of the Rule of Law. 10 2 The Takings Clause of the Constitution
forbids the taking of "private property" for "public use" without payment
of "justcompensation."'10 3 According to Epstein, courts can protect property in the consistent, principled fashion that the Rule of Law requires
only if they adhere to a particular, substantively defined conception of
the "property" that they must protect. 10 4 In other words, a particular,
substantive conception of property, which Epstein finds supported both
by Lockean natural rights theory and by utilitarianism, must be imputed
to the Constitution in order for determinations of legal rights to be dic99. In addition to the works discussed in text, see, e.g., David A.J. Richards, Toleration
and the Constitution 12, 57-58, 61-62 (1986) (arguing that constitutional terms should be
construed as reflecting contractarian political theory, as exemplified in the work ofJohn
Rawls); Barnett, supra note 4, at 620 (arguing for recognition and protection of
unenumerated constitutional rights based on the "refined conception of the rule of law
based on both rules and principles"); Michael S. Moore, A Natural Law Theory of
Interpretation, 58 S. Cal. L. Rev. 279, 372, 873-76 (1985) (arguing that, in order to
promote Rule-of-Law virtues, constitutional terms should be interpreted as reflecting a
"realist" theory of meaning incorporating natural law definitions of moral terms).
100. Lon Fuller apparently regarded his theory as reflecting a necessary, "internal
morality" of law, and thus as a substantive theory properly associated with the natural law
tradition. See Fuller, supra note 5, at 41-44, 96-106. Others have read Fuller as offering
an "instrumental" conception of the criteria that must be satisfied for rules to be successful
in promoting any end, whether moral or immoral. See, e.g., Radin, supra note 7, at
784-87.
101. See, e.g., Dworkin, supra note 76, at 93; Dworkin, supra note 18, at 11-12 ("The
rule of law... is the ideal of rule by an accurate public conception of individual rights....
[I]t requires ... that the rules in the rule book capture and enforce moral rights.").
102. See Richard A. Epstein, Takings: Private Property and the Power of Eminent
Domain (1985).
103. See U.S. Const. amend. V ("[N] or shall private property be taken for public use,
without just compensation.").
104. See Epstein, supra note 102, at 304-05 ("The eminent domain clause is designed
to limit the power of the legislature; it can achieve that end only if it accepts some natural
law account of property that is able to resist legislative nullification.").
19971
RULE OF LAW
tated by law, rather than rendered by courts on ad hoc and inconsistent
bases.
As a final example, Frank Michelman's "Law's Republic" appears to
treat a substantive conception of the Rule of Law as necessary to explain
the possibility of freedom under law.' 0 5 Americans, Michelman maintains, commonly view themselves as "free" insofar as (i) they are selfgoverning, and (ii) their government is one of "laws, and not of men."'10 6
But how can government under laws made by men be regarded as freedom, rather than a form of majority tyranny? The answer, according to
Michelman, must lie in the assumption that law worthy of the name is law
that everyone could imagine as being self-given; only on this hypothesis
could rule by law be equated with self-rule and thus with freedom. 10 7 For
Michelman, accordingly, the ideal of the Rule of Law is the ideal of rule
by precepts that satisfy a substantive standard: the substantive content of
legal rules and decisions must be such that they can command, or at least
be capable of commanding, universal assent. Michelman believes that
laws with some substantive content-those, for example, that deny equal
citizenship to minority groups or impinge on liberties basic to selfidentity-are not imaginably capable of satisfying the universal-assent
standard and thus are incompatible with the Rule of Law.' 0 8
Perhaps the principal objection to the substantive ideal type is that it
turns the Rule of Law into a partisan ideal; questions about the meaning,
existence, and requirements of the Rule of Law are joined, at least in
some cases, to substantive disagreements about what the law ought to
be. 10 9 But more than "the concept of law," which positivists and natural
law theorists have routinely tangled over, "the Rule of Law" is explicitly an
ideal. This being so, it seems inevitable that any plausible conception of
the Rule of Law will include at least minimal moral elements-for example, standards defining kinds of official arbitrariness that would be incompatible with the Rule of Law even if authorized in terms satisfying
positivist standards of legal validity." 0 Once the foot is in the door, it
105. See Michelman, supra note 4.
106. Id. at 1500.
107. See id. at 1501-03.
108. Although Michelman stresses that the requisite sense of self-givenness may
emerge from participation in or respect for a properly open, rational, and respectful
deliberative process, see id. at 1524-32, he does not appear to deny that the line between
process and substance is obliterated in the cases with which he is most centrally concerned.
In his view, a process that fails to recognize central (substantive) claims of human dignity
and equality should be pronounced ipsofacto (procedurally) unfair, because those whose
claims are denied could not regard a law denying them as self-given. See id. at 1532-87.
109. See Raz, supra note 6, at 211, 226-28; Summers, supra note 6, at 136.
110. Such standards might be failed, for example, by a legal system in which a wellknown rule, established historically by recognized legal authority, clearly provided that
otherwise applicable prohibitions against murder and torture were not binding on the
military, nd in which the military ruthlessly exploited its prerogatives. Regardless of
whether it would be accurate to say that such a society had "law" or a "legal system,"
compare H.LA. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev.
COLUMBIA LAW REVIEW
[Vol. 97:1
also seems inevitable that there will be debates about how extensively the
ideal of the Rule of Law is suffused with moral premises and, in particular, how those premises should be conceived.
In any event, substantive conceptions of the Rule of Law are clearly
not precluded by any publicly agreed meaning of the term. The argument to exclude substantive content from the ideal of the Rule of Law
must itself rely on substantive claims of political morality, which adherents of the substantive ideal type can reasonably reject.
III. RuLE-oF-LAw IDEAL TYPES iN CONSTrrUTIONAL DEBATES
Contemporary disagreements about the Rule of Law frequently are
reflected in substantive debates involving constitutional interpretationmost often among commentators, sometimes among judges and Justices.
A recent, prominent example of express judicial disputation about the
Rule of Law is PlannedParenthoodv. Casey."' In that case, a bare five-tofour Supreme Court majority surprised many observers by purporting to
uphold the central abortion right first recognized in Roe v. Wade,1 12 even
though reducing the scope of that right by permitting "incidental" restrictions on abortions that do not amount to "undue burdens." 1 3 A plurality
of the Justices, including two who previously had taken positions sharply
critical of Roe," 4 relied explicitly on the Rule of Law to justify their decision. 1" 5 In an opinion that resonated in part with the Legal Process ideal
type, the plurality reasoned that regardless of Roe's correctness as an
593, 602-06 (1958) (asserting the affirmative), with Lon L. Fuller, Positivism and Fidelity
to Law-A Reply to Professor Hart, 71 Harv. L. Rev. 630, 638-43 (1958) (challenging
Hart's position), it could still be maintained, in my view accurately, that the regime fell
short of the ideal of the Rule of Law.
111. 505 U.S. 833 (1992). For other examples, see supra note 20.
112. 410 U.S. 113 (1973).
113. See Casey, 505 U.S. at 874-76.
114. Justice O'Connor had attacked Roe and particularly its trimester framework from
as early as City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 458
(1983) (O'Connor, J., dissenting) (characterizing Roe's trimester framework as "on a
collision course with itself"), and Justice Kennedy had joined Chief Justice Rehnquist's
plurality opinion in Webster v. Reproductive Health Servs., 492 U.S. 490, 518 (1989)
(asserting that "[t]he key elements of the Roe framework-trimesters and viability-are
not found in the text of the Constitution or in any place else one would expect to find a
constitutional principle").
115. See Casey, 505 U.S. at 854 ("[T]he very concept of the rule of law underlying our
own Constitution requires... continuity over time."); id. at 865 (arguing that overruling
Roe's core holding would "seriously weaken the Court's capacity.., to function as the
Supreme Court of a Nation dedicated to the rule of law"); see also id. at 868 (arguing that
the Court must adhere to precedent to maintain solidarity with people who "struggle to
accept" a decision with which they disagree out of "respect" for "the rule of law").
1997]
RULE OFLAW
117
original matter, 116 the Rule of Law demanded respect for precedent,
and it especially required that constitutional law, as a product ofjudicial
reason, not be perceived as compromised in response to political pressure of the kind that Roe had engendered. 11
The dissenting Justices, however, were no less vehement that the
Rule of Law required Roe's reversal. Echoing the historicist ideal type,
Justice Scalia's dissenting opinion maintained that Roe lacked any
grounding in constitutional text or tradition 1 9 and therefore represented a judicial usurpation of lawmaking power incompatible with the
Rule of Law.120 Another theme in Justice Scalia's opinion appealed to
the formalist ideal type. He pointed out that the plurality substantially
reshaped Roe, even while purporting to reaffirm its core, 12 1 and mocked
the plurality's "undue burden" standard as too uncertain to be applied
the dissenting
consistently with the Rule of Law. 122 The Rule of Law,
123
Justices implied, requires decision according to rules.
As mentioned above, the Rule-of-Law ideal types introduced in Part
II are intended only as heuristically useful abstractions and not as fully
116. See Casey, 505 U.S. at 871 (opinion of O'Connor, Kennedy, and SouteriJ.) ("We
do not need to say whether each of us . . .would have concluded[ ] as the Roe Court
did[ ]. . . ).
117. For other suggestions that the Rule of Law requires adherence to stare decisis,
see Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991) ("'The doctrine
of stare decisis is of fundamental importance to the rule of law.'") (quoting Patterson v.
McLean Credit Union, 491 U.S. 164, 172 (1989) (same)); Welch v. Texas Dep't of
Highways & Pub. Transp., 483 U.S. 468, 478-79, 494 & n.27 (1987) ("[TIhe rule of law
depends in large part on adherence to the doctrine of stare decisis."); Thornburgh v.
American College of Obstetricians & Gynecologists, 476 U.S. 747, 786-87 (1986) (White,
J., dissenting) ("The rule of stare dedsis is essential if case-by-case judicial decisionmaking is
to be reconciled with the principle of the rule of law."); City of Akron, 462 U.S. at 419-20
("[S]tare desis... is a doctrine that demands respect in a society governed by the rule of
law."); Roscoe Pound, What of Stare Decisis?, 10 Fordham L Rev. 1, 5 (1941) ("Rightly
understood, stare deciss is a feature of the common-law technique of decision .... making
for stability by requiring adherence to decisions of the same question in the past.... ."); cf.
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2116 (1995) (asserting that by
'refusing to follow" a case that "itself departedfrom.., prior cases," the Court does "not
depart from the fabric of the law; we restore it").
118. See Casey, 505 U.S. at 874-76 (opinion of O'Connor, Kennedy, and SouterJJ.);
cf. Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970) (citing among the reasons for
adherence to precedent "the necessity of maintaining public faith in the judiciary as a
source of impersonal and reasoned judgments").
119. See Casey, 505 U.S. at 980 (Scalia, J., joined by Rehnquist, C.J., and White and
Thomas, i.,concurring in the judgment in part and dissenting in part). Chief Justice
Rehnquist also filed a separate dissenting opinion, in which Justices White, Scalia, and
Thomas also joined. See id. at 944.
120. See id. at 987.
121. See id. at 993-94.
122. See id. at 987-92.
123. See id. at 988-99; see also Scalia, supra note 42, at 1183 ("It is rare... that even
the most vague and general text cannot be given some precise, principled content-and
that is indeed the essence of the judicial craft[:] ...[to] elaborate general rules from a
statutory or constitutional command.").
COLUMBIA LAW REVIEW
[Vol. 97:1
accurate descriptions of anyone's thought, including that of the Justices
in Casey. Nonetheless, the ideal types help sufficiently to clarify the assumptions of actual constitutional arguments to merit further examination and testing. One purpose of this Part is to explore the implications
of the various Rule-of-Law ideal types for constitutional law. An even
more important aim, however, is to show the limitations of the ideal types
themselves. When the ideal types are tested against substantive and methodological issues familiarly arising in constitutional law, it becomes clear
that none provides an adequate, free-standing interpretation of the Rule
of Law. Although the ideal types help to elucidate the presuppositions of
particular Rule-of-Law claims, an adequate theory of the Rule of Law
must include multiple, complexly interwoven strands.
A. The HistoricistIdeal Type
At first blush, historicist conceptions of the Rule of Law would appear to furnish a straightforward prescription for constitutional interpretation: constitutional interpretation should follow originalist principles.
Difficulties break out, however, if there is less than total congruence between the historicist ideal of the Rule of Law and the constitutional law of
the United States. Lack of congruence has implications, not only for constitutional theory, but also for the requirements of a plausible conception
of the Rule of Law.
A theoretical problem for the historicist ideal type, developed in the
extensive literature on originalism, involves a distinction between the substantive and "interpretive" understandings of the Constitution's Framers
and ratifiers. 124 It is possible that the Framers and ratifiers shared substantive understandings of the Constitution's meaning, but did not contemplate that subsequent interpreters would be bound by their substantive understandings.' 25 If so, the "interpretive" understandings of the
Framers and ratifiers would, paradoxically, deny judges and Justices the
historically established substantive rules of decision that the historicist
ideal type portrays as necessary to the Rule of Law.' 26 If this turned out
124. See, e.g., Dworkin, supra note 18, at 51-55; Brest, supra note 47, at 214-17; H.
Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885,
885-86 (1985).
125. See, e.g., Brest, supra note 47, at 215; Powell, supra note 124, at 903-04; see also
Ronald Dworkin, Taking Rights Seriously 134-36 (1977) (arguing that the Constitution
adopts general concepts, not specific "conceptions" of those concepts, and that
interpretation requires identifying the conception that best realizes the concept, rather
than the conception held by the Framers and ratifiers); John Hart Ely, Democracy and
Distrust: A Theory ofJudicial Review 22-30 (1980) (arguing that the open-ended language
of certain constitutional provisions invites this conclusion).
126. A comparable problem might arise in cases in which the historically intended
meaning was for some reason undiscoverable-a problem that Robert Bork regards as
presented by the Privileges or Immunities Clause of the Fourteenth Amendment:
The judge who cannot make out the meaning of a provision is in exactly the same
circumstance as ajudge who has no Constitution to work with.... So it has been
1997]
RULE OF LAW
to be the case, adherents of originalist theories might supplement their
theories of the Rule of Law to specify the approach that was second-best
under these peculiar circumstances. But the supplementation, if it occurred within a theory of the Rule of Law, would implicitly recognize that
the Rule of Law is a more27complex ideal than the unamended historicist
ideal type acknowledges.'
A more demonstrable lack of congruence emerges from the acknowledgment-as readily made by originalists as by their opponentsthat the constitutional law of the United States has departed far from
originalist principles. 128 Confronted with this situation, a proponent of
the historicist ideal type might take the position that decisions incompatible with the original understanding are not "real" law in some sense,
or-as the dissenting Justices appear to have suggested in Casey-lack
authority to bind the Supreme Court.' 29 But the view that non-originalist
decisions neither are nor could be law seems both clearly mistaken and
incompatible with views that most self-described originalists in fact hold.
Law owes its roots largely, even if not exclusively, to convention and social
fact.' 3 0 The Constitution, for example, is law not because the Framers
and ratifiers said so, but because we today accept it as such.131 And the
same sort of acceptance that validates the Constitution as law is equally
capable of validating, and indeed has validated, non-originalist decisions
as law and non-originalist principles of interpretation as lawful within our
constitutional culture. 132 Many originalists implicitly concede as much
when they accept at least some non-originalist principles and decisions as
binding law.' 33
with the clause of the fourteenth amendment prohibiting any state from denying
citizens the privileges and immunities [sic] of citizens of the United States. That
clause has been a mystery since its adoption and in consequence has, quite
properly, remained a dead letter.
Bork, supra note 9, at 166.
127. See J.M. Balkin, Constitutional Interpretation and the Problem of History, 63
N.Y.U. L. Rev. 911, 926-42 (1988) (arguing that the Rule of Law requires adherence to
precedent and that originalist claims to the contrary are mistaken).
128. See, e.g., Bork, supra note 9, at 19-128; Monaghan, supra note 16, at 727-39.
129. See Planned Parenthood v. Casey, 505 U.S. 833, 998-99 (1992) (Scalia, J.,
concurring in the judgment in part and dissenting in part).
130. See generally Hart, supra note 74 (so arguing).
131. See Frederick Schauer, Amending the Presuppositions of a Constitution, in
Responding to Imperfection: The Theory and Practice of Constitutional Amendment 145,
152-53 (Sanford Levinson ed., 1995).
132. See Richard H. Fallon, Jr., The Political Function of Originalist Ambiguity, 19
Harv. J.L. & Pub. Pol'y 487, 490 (1996).
133. See, e.g., Bork, supra note 9, at 155-59; Monaghan, supra note 16, at 748-55;
Scalia, supra note 41, at 861; cf. United States v. Lopez, 115 S. Ct. 1624, 1650 n.8 (1995)
(Thomas, J., concurring) ("Although I might be willing to return to the original
understanding, I recognize that many believe that it is too late in the day to undertake a
fundamental reexamination of the past 60 years. Consideration of stare decisis... may
convince us that we cannot wipe the slate clean.").
COLUMBIA LAW REVIEW
[Vol. 97:1
An alternative originalist response to entrenched non-originalist doctrine would be to emphasize that the Rule of Law is an ideal that may be
approximated more or less perfectly. Within this framework, nonoriginalist precedent would be less than an ideal form of law, and a legal
system laden with non-originalist precedent would have departed troublingly far from the Rule-of-Law ideal. But precedent is law nonetheless,'3 4 and acceptance of its authority-from the perspective of the Rule
of Law-may be the lesser of two evils.
This argument is surely plausible, but its validity again depends on a
broader theory of the Rule of Law than that reflected in the historicist
ideal type. The argument that judicial precedent departing from the
Framers' intent or original understanding is law, even if second-best or
deficient law, requires a theory that comprehends a broader range of
Rule-of-Law considerations.' 8 5 And within such a theory, there may well
be room, at least in cases of practical exigency, for departure from the
original understanding even beyond the scope of stare decisis. Perhaps
an intimation of this kind explains why justice Scalia has classified himself
more than amply
as a "faint-hearted" originalistl'- 6-a characterization
57
supported by his performance on the bench.'
B. The FormalistIdeal Type
The formalist ideal type associates the Rule of Law with form, not
substance, and implies that constitutional decisionmaking should, to the
extent possible, be cast in the form of rules.' 3 8 This prescription is certainly intelligible, but it proves more difficult to integrate into the culture
of constitutional argument than might be anticipated. The first, obvious
difficulty is that the formalist ideal type by itself gives no indication what
the substantive content of constitutional rules ought to be. Justice Scalia,
perhaps the leading contemporary champion of rules over more loosely
defined standards and especially over multi-factor balancing tests, appears to assume that originalist methods will furnish the governing
rule.'3 9 But there is no assurance, of course, that the original understanding will always prove rule-like.
When his preference for rules conflicts or threatens to conflict with
his originalist commitments, Justice Scalia on at least several occasions
134. See, e.g., Monaghan, supra note 16, at 748-55; Scalia, supra note 41, at 861.
135. See Balkin, supra note 127, at 926-42.
136. Scalia, supra note 41, at 864.
137. For further discussion of this point, see infra text accompanying notes 225-231.
An alternative interpretation, of course, would be that the Rule of Law is only one
value among others, which sometimes ought to give way to pressing substantive concerns.
See Raz, supra note 6, at 228-29 (emphasizing that the Rule of Law may sometimes
compete with, and should not always prevail over, other values).
138. See Scalia, supra note 42, at 1183.
139. See, e.g., Scalia, supra note 41, at 862-63.
1997]
RULE OF LAW
appears to have opted, perhaps reflexively, for rules. 14 ° In Employment
Division v. Smith, for example, the Justice brusquely dismissed textually
based arguments that, under the Constitution's Free Exercise Clause, a
state must exempt religiously mandated conduct from general criminal
141
prohibitions unless it has a powerful justification for refusing to do so.
The constitutional language, he concluded, could be read as requiring
religious exemptions, but it did not compel such an interpretation. 42
What is striking is that, self-professed originalist though he is, Justice
Scalia "did not pause to consider whether the historical context surrounding the adoption of the Free Exercise Clause might have a bearing
on" which of the "permissible readings of the text" ought to be
adopted, 148 despite at least some evidence suggesting that the original
understanding would have demanded religiously based exemptions.' 4 4 I
do not mean to judge the historical question-merely to point out that
Justice Scalia never so much as noted it. Regardless of how the historical
evidence should have been evaluated, Justice Scalia's total inattention to
history, coupled with his tendentious treatment of precedents that appeared on their face to establish rights to religious exemptions in the
absence of a compelling government interest in denying them,"4 seems
explainable only by his belief that case-by-case balancing is incompatible
with the ideal of the Rule of Law as a law of rules: "To make an individual's obligation to obey [a generally applicable criminal law] contingent
upon the law's coincidence with his religious beliefs, except where the
State's interest is 'compelling,'" would "permit[ ] him, by virtue of his
beliefs, 'to become a law unto himself."' 14
When the best or most appropriate rule cannot be extracted directly
from the original understanding, candidates must be assessed at least
partly on some other ground. The question then arises whether the basis
for choice is external to the ideal of the Rule of Law. That the choice of
140. See, e.g., Michael W. McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. Chi. L. Rev. 1109, 1114-19, 1145-53 (1990) (criticizingJustice Scalia's use
of constitutional text and history in Employment Division v. Smith, 494 U.S. 872 (1990));
EricJ. Segall, Justice Scalia, Critical Legal Studies, and the Rule of Law, 62 Geo. Wash. L.
Rev. 991, 1019 (1994) (asserting that Justice Scalia values rules over adherence to
originalism); Sullivan, supra note 36, at 82 (discussing Justice Scalia's ruling in R.A.V. v.
City of St. Paul, 505 U.S. 377 (1992), that cross-burning is a form of speech within the
protective ambit of the First Amendment).
141. 494 U.S. 872 (1990).
142. See id. at 878.
148. McConnell, supra note 140, at 1116-17.
144. See id. at 1116-19.
145. See Smith, 494 U.S. at 881-84; cf. McConnell, supra note 140, at 1120
(characterizing the Court's "use of precedent" as "troubling, bordering on the shocking");
Note, The Supreme Court, 1989 Term-Leading Cases, 104 Harv. L. Rev. 129, 204-05
(1990) (asserting that Smith "distort[s] prior rulings" and that its conclusion that
precedent supports the test applied is "clearly false").
146. Smith, 494 U.S. at 885 (quoting Reynolds v. United States, 98 U.S. 145, 167
(1879)).
COLUMBIA LAW REVIEW
[Vol. 97:1
rule would be wholly unconstrained seems implausible. More likely, conventions of legal reasoning and the requirement of reason-giving-as
modeled by the Legal Process ideal type-would come into play, 147 or a
substantive conception of the Rule of Law would furnish principles of
preference. Justice Scalia has sometimes suggested that respect for tradition is an ideal internal to the Rule of Law and, as such, may constrain
the judicial elaboration of principles that are consistent with the constitutional text.148
In any case, adherence to formalism as a complete and free-standing
theory of the Rule of Law in constitutional cases seems manifestly unreasonable, if not wholly impossible. It is hard to imagine anyone insisting
that rules, regardless of either their origin or their content, are both necessary and sufficient for the Rule of Law. An account of which rules
should be applied by courts, and why, is plainly needed. Furthermore,
although formalism is often viewed as a complement to historicism, the
ideal types can clearly collide (as they may have in the Smith case). Anyone who identifies the Rule of Law with both historicism and formalism
needs a more complex theory explaining the relationship between the
two.
C. The Legal Process Ideal Type
Theories approaching the Legal Process ideal type characteristically
offer claims about what will suffice for the Rule of Law. In particular,
Legal Process accounts maintain that a reasoned connection between recognized legal norms and sources of authority and the outcome in particular cases often will satisfy the requirements of the Rule of Law, even if the
result is not determined by a clear rule or an original historical under147. Cf. Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism,
and the Rule of Law, 45 Vand. L. Rev. 533, 547-49 (1992) (claiming that formalist theories
cannot escape the need for judicial reliance on "practical reason" in debatable cases).
148. Dissenting in Rutan v. Republican Party,Justice Scalia wrote:
[WIhen a practice not expressly prohibited by the text of the Bill of Rights [such
as party-based patronage in hiring for government employment] bears the
endorsement of a long tradition ... we have no proper basis for striking it down.
Such a venerable and accepted tradition is not to be laid on the examining table
and scrutinized for its conformity to some abstract principle of First Amendment
adjudication devised by this Court. To the contrary, such traditions are
themselves the stuff out of which the Court's principles are to be formed.
497 U.S. 62, 95-96 (1990) (ScaiaJ., dissenting) (footnote omitted); see also Michael H. v.
Gerald D., 491 U.S. 110, 121-24, 127-28 n.6 (1989) (Scalia, J., writing for the plurality)
(arguing that the Due Process Clause, in its substantive component, can properly be read
only to protect interests "traditionally protected by our society," and defending this
position on the ground that "a rule of law that binds neither by text nor by any particular,
identifiable tradition is no rule of law at all"). See generally David A. Strauss, Tradition,
Precedent, andJustice Scalia, 12 Cardozo L Rev. 1699 (1991) (critically analyzingJustice
Scalia's applied constitutional theory).
1997]
RULE OF LAW
standing.' 49 In contemporary constitutional law, the influence of the
Legal Process ideal type is enormous, if not pervasive. In addition to
cases such as Casey, in which Legal Process arguments are expressly linked
to claims about the Rule of Law, 1'5 countless arguments and opinions
presuppose Legal Process premises, even if they do not pause to defend
their presuppositions. In many constitutional cases, for example, the language and history of the Constitution stand in the deep background, with
the central argumentation focused on how judicial precedents ought to
be interpreted within the conventions of constitutional discourse.' 5 ' Furthermore, many of the most admired opinions in the constitutional canon proceed by imputing-by a methodology only loosely disciplined by
attention to originally understood meaning-reasonable, morally attractive purposes to constitutional language or the Framers, or to an identified constitutional tradition, and then pursuing a method of reasoned
elaboration to draw out the implications for the case at hand. An especially well-known example is Justice Brandeis's concurring opinion in
Whitney v. California.15 2 In Whitney, Justice Brandeis for the first time accepted the force of precedent and conventional legal understandings to
establish the proposition, which he previously had resisted, that "the due
process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure" and thus made First
Amendment principles enforceable against the states.153 Having done so,
54
he described the Framers' aims and attitudes in broad, edifying terms,'
and drew from their imputed purposes a conclusion that, so far as I know,
no serious student has ever thought established by previously articulated
55
judicial rule or the original understanding of constitutional language:'
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be
[And] even imminent
applied is more speech, not enforced silence ....
danger cannot justify resort 15to6 prohibition . . . unless the evil apprehended is relatively serious."
Although the Legal Process ideal type accepts a large role for judicial
reason in deriving conclusions that are not determined either by history
149. See, e.g., Hart & Sacks, supra note 77, at 143-53; cf. Strauss, supra note 81, at 935
(arguing that the common-law approach "forthrightly accepts, without apology, that we
depart from past understandings, and that we are often creative in interpreting the text" of
the Constitution).
150. See supra notes 111-123 and accompanying text.
151. See, e.g., Brest, supra note 47, at 234; Charles Fried, Constitutional Doctrine, 107
Harv. L. Rev. 1140, 1152-54 (1994); Monaghan, supra note 16, at 770-72; Strauss, supra
note 81, at 883-84.
152. 274 U.S. 357 (1927). For insightful commentary, see Vincent Blasi, The First
Amendment and the Ideal of Civic Courage, 29 Win. &Mary L. Rev. 653, 667-72, 695-97
(1988).
153. Whitney, 274 U.S. at 373 (Brandeis, J., concurring).
154. See id. at 375-77.
155. Justice Brandeis acknowledged as much. See id. at 374.
156. Id. at 377.
COLUMBIA LAW REVIEW
[Vol. 97:1
or by rule, it does not suggest-significantly-that legal norms can be
made by judges (however reasonably) out of whole cloth. On the contrary, it assumes the relevance of texts promulgated by historically recognized sources of legitimate legal authority, and frequently those texts' historic purposes or original understandings, as among the relevant starting
points for constitutional interpretation. 15 7 Insofar as it does so, the Legal
Process ideal type tends to be at least partly parasitic on historicist
theories.
It might, of course, be suggested that the Legal Process ideal type
implicitly incorporates a partly historicist theory of the proper starting
points for legal interpretation.15 8 Described in this way, the Legal Process ideal type would more closely approach a complete theory of the
Rule of Law. But its pretensions to completeness would remain
unfulfilled.
Without significant modification, the Legal Process ideal type cannot
explain a variety of circumstances in which seemingly settled understandings do not require such Legal Process hallmarks as reasoned elaboration
of the grounds for decision as necessary to the Rule of Law. 15 9 Juries
simply pronounce their verdicts. The Supreme Court similarly acts without explanation-notwithstanding the occasional dissent-when it either
grants or denies certiorari. Prosecutors and other officials generally need
not explain their discretionary decisions about whether to initiate enforcement actions. It is true that articulately reasoned decisionmaking is
frequently treated as essential to the proper functioning of appellate
courts rendering decisions on the merits and to administrative agencies
propounding rules and adjudicating violations. But this treatment may
suggest only that the requirements of the Rule of Law can vary with
context.
Against this backdrop, the Legal Process ideal type is best understood, not as modeling a full theory of the Rule of Law, but as offering an
account of one way in which the Rule of Law's demand that both citizens
and officials should be ruled by law can sometimes be met-by a reasoned connection, forged by publicly accessible norms, between formally
promulgated materials and an authoritative decision.
D. The Substantive Ideal Type
Decisions and processes of reasoning that clearly exemplify the substantive Rule-of-Law ideal type are relatively rare in constitutional law, but
by no means nonexistent. In the recent case of Romer v. Evans, for exam157. See, e.g., Hart & Sacks, supra note 77, at 148-53; Strauss, supra note 81, at
880-81; Wilkinson, supra note 81, at 796.
158. For an example of a Legal Process theory that does so explicitly, see Strauss,
supra note 81, at 899-900.
159. For an illuminating discussion of the costs and benefits of reason-giving and
consideration of some of the contexts in which reason-giving is not required, see Frederick
Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 634, 686-37, 651-54, 657-59 (1995).
1997]
RULE OF LAW
ple, the Supreme Court-in invalidating a state constitutional provision
that forbade the enactment of legislation protecting homosexuals against
discrimination-explicitly interpreted the Equal Protection Clause as embodying a conception of equality that it also associated with the Rule of
Law.' 60 "Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection," the Court said, "is the principle that government and each of its parts remain open on impartial terms
to all who seek its assistance." 161 A similar form of reasoning may also
have been involved in Lucas v. South Carolina Coastal Council,162 though
the appeal to the Rule of Law in that case was implicit only. Despite evidence that the Takings Clause was not intended to reach regulations of
land use, 163 Lucas holds that when a regulation deprives land of all economic value, the Constitution mandates compensation. In his opinion
for the Court, Justice Scalia presents this conclusion as necessary to protect a "historical compact recorded in the Takings Clause that has become part of our constitutional culture."'6 Notwithstanding Justice
Scalia's reference to a "historical compact"-a compact that he does not
purport to root in the Takings Clause's original understanding16 5-his
real concern is rather clearly substantive. 16 6 The Court's transparent aim
is to establish a doctrinal test that is minimally adequate to realize what it
takes to be the most intelligible purpose reasonably ascribed to the Takings Clause: to prevent the total or near total destruction of property
values, to serve public ends, without payment of just compensation.
As these examples might suggest, theories and arguments modeled
by the substantive Rule-of-Law ideal type seldom claim that principles of
substantive justice supply the full content of the "law" that is presupposed
by the Rule of Law. Instead, they characteristically make more limited
claims-for example, that particular legal concepts, such as "equality" or
"property," must take their meaning from substantive political morality,167 or that substantive political morality supplies controlling principles
of legal interpretation in otherwise doubtful cases.' 6 8 There is much that
might be said about particular theories and arguments of this kind, but
one observation may suffice for present purposes. Many such theories
160. 116 S. Ct. 1620 (1996).
161. Id. at 1628.
162. 505 U.S. 1003 (1992).
163. See William Michael Treanor, The Original Understanding of the Takings
Clause and the Political Process, 95 Colum. L. Rev. 782, 782-83 (1995).
164. Lucas, 505 U.S. at 1028.
165. See infra note 231.
166. Justice Scalia's methodology in Lucas triggered Justice Blackmun's tart and
telling comment that "I cannot imagine where the Court finds its 'historical compact,' if
not in history." Lucas, 505 U.S. at 1061 n.26 (Blackmun, J., dissenting).
167. See, e.g., Dworkin, supra note 125, at 223-39 (equality); Epstein, supra note 102,
at 20-24 (property).
168. See Dworkin, supra note 125, at 81-130; supra notes 101-104 and accompanying
text.
COLUMBIA LAW REWVEW
[Vol. 97:1
and arguments at least implicitly treat the Rule of Law as a concept of
several, interconnected strands, only one of which is reflected in the
purely substantive ideal type. Other strands may reflect elements of the
historicist, formalist, or Legal Process ideal types that are invoked to account for the legal status of concepts to be infused with moral content, or
to identify the materials requiring legal interpretation, or to specify the
16 9
conventions or procedures of proper legal reasoning.
Reflection on the work of authors that I mentioned in developing
the substantive ideal type confirms this understanding. Ronald Dworkin
believes that the Rule of Law requires consistent judicial enforcement of
a defensible theory of political morality, 170 but he also accepts that the
starting point for legal reasoning must lie in traditional sources of positive law,171 the status of which a more purely substantive theory cannot
account for. Ajudge, he argues, must decide cases according to the legal
theory that depicts a community's law in the morally best light, 72 but
"must not decide a hard case by appealing to any principle that is ...
incompatible with the rule book of hisjurisdiction." 73 Although Richard
Epstein argues that the Takings Clause must be assigned a particular, substantive meaning in order to be administered consistently with the Rule
of Law,'7 he appears to regard this as a special case. In an article entifled "Beyond the Rule of Law: Civic Virtue and Constitutional Structure,"
he contends specifically that the Rule of Law is defined by formal requirements and that the substantive content of laws must be judged by the
standards of substantive political theory, not by requirements of the Rule
5
of Law.1
Frank Michelman's "Law's Republic" might appear to identify the
Rule of Law more pervasively with rule in accordance with particular substantive values.' 7 6 The Rule of Law, he argues in this article (in at least
partial contrast, I think, with positions he has taken in other wrtings' 7 7 ),
is rule by laws that each person could imagine willing for herself; only on
this assumption can the Rule of Law differ from the rule of men, and can
we be "free" insofar as we are ruled by law.' 7 8 Given this premise,
Michelman terms it a form of misguided "authoritarianism" to think that
169. Cf. Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Mich. L.
Rev. 621, 629 (1987) (observing that "a normative account of how law is determined does
not entirely escape dependence on convention").
170. See supra note 101 and accompanying text.
171. See Dworkin, supra note 76, at 90-94.
172. See id. at 52-58, 255-56.
178. Dworkin, supra note 18, at 17.
174. See supra note 104 and accompanying text.
175. See Epstein, supra note 24, at 151-54.
176. See Michelman, supra note 4.
177. For example, in "Justification (and Justifiability) of Law in a Contradictory
World," Michelman, on my reading, adopts a niuch more nearly Legal Process view that
characterizes judicial "justification" as compatible with ongoing and possibly irresolvable
disagreement. See Michelman, supra note 79, at 72.
178. See Michelman, supra note 4, at 1500-08.
1997]
RULE OF LAW
provisions of positive law should always prevail in cases of conflict with
the ideal of law as a self-given command. 179 Even this claim, however,
must be seen in context. The conception of the Rule of Law reflected in
"Law's Republic" relies heavily on the ideas and processes reflected in the
Legal Process ideal type. In asserting his theory's distinctively "republican" character, Michelman emphasizes the capacity of fair and trusted
deliberative process to achieve what he calls a 'Jurisgenerative" effect' 8 0an experience of law as reflective of accepted norms and thus as compatible with freedom. Michelman also postulates that republican legal deliberation must begin with a stock of shared norms, 181 which he thinks likely
to exist largely because the Constitution-by literally helping to "constitute" the political community-might shape the normative understandings by which the community, freed from any authoritarian impulse,
would wish to govern itself.18 2 Finally, to postulate that the Rule of Law
requires "jurisgenesis" is not necessarily to conclude that courts should
decide every case on the basis of the substantive ideal type. Indeed, I
read "Law's Republic" to affirm that courts should deny the authority of
traditionally recognized sources of positive law only when restrictions on
83
individual rights amount to denials of equal, republican citizenship.'
In other cases, the substantive Rule-of-Law ideal deserves the respect of
the legislature, but does not necessarily imply a judicial mandate.' 8 4 At
least part of the reason, it would seem, is that there is more to the Rule of
Law-including respect for positive law and the fair allocation of political
power-than substantively just definitions of individual liberty.' 8 5 In any
179. See id. at 1515-24.
180. See id. at 1501-02. Michelman adapts this term from Robert M. Cover, The
Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4-19
(1983), to refer to deliberative processes whose outcomes are law that could be viewed as
self-willed by those who wish both to live under the law and to be free. See Michelman,
supra note 4, at 1502.
181. See Michelman, supra note 4, at 1504-05.
182. See id. at 1513-15, 1526-32.
183. In Law's Republic, Michelman argues that the Georgia antisodomy ordinance at
issue in Bowers v. Hardwick, 478 U.S. 186 (1986)-the case that he uses to test his
"republican" theory-violates this requirement. See Michelman, supra note 4, at 1535-36
(endorsing an argument that "attacks the Georgia law for denying or impairing citizenship
by exposing to the hazards of criminal prosecution the intimate associations through
which personal moral understandings and identities are formed and sustained").
184. Professor Michelman may have advanced a more sweeping conception of the
judicial role under republican political theory in Frank I. Michelman, The Supreme
Court, 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 74 (1986)
(arguing that "the courts, and especially the Supreme Court... [should] take on as one of
their ascribed functions the modeling of active republican self-government that citizens
find practically beyond their reach").
185. Cf. Michelman, supra note 4, at 1537:
The difficulty remains of explaining how it can be right to address ... a nondemonstrative argument about the impermanent meaning of the people's law to
any body other than the People .... [A] judicial constitutional convention is not
equivalent-indeed, is contrary-to actual democracy. That difficulty, too, must
COLUMBIA LAW REVIEW
[Vol. 97:1
event, when the notion of "jurisgenerative" legal process is conjoined
with the norm-shaping function of positive law, and especially when considerations of institutional role are introduced, it becomes clear that the
substantive ideal type, by itself, cannot provide a full explication of the
conception of the Rule of Law reflected in "Law's Republic."
E. Summary: The Breakdown or Fusion of the Ideal Types
When the four Rule-of-Law ideal types are tested by application to
issues regularly arising in constitutional law, none can provide a full analysis of the Rule of Law. Each accounts for some element central to widely
held assumptions, but an element is not the whole. Nor is it possible
simply to say that the Rule of Law incorporates all of the ideal types.
Although I have emphasized the ideal types' incompleteness, it bears emphasis that they were introduced to elucidate disagreement. That disagreement cannot be blinked away. If the various ideal types all reflect
claims that ought in principle to be acknowledged, how those claims relate to each other needs to be explained.
IV. MAKING (SOME)SENSE OF THE STRANDS
Although I have emphasized conflict among four Rule-of-Law ideal
types, an emerging if recessive theme in my analysis has signalled the possibility that the ideal types might also, in some sense, complement each
other. 186
A. Complementarity and Conflict
The four ideal types prioritize Rule-of-Law values differently. Nevertheless, the values underlying all of the ideal types are plausible and attractive, and neither values nor priorities conflict in every case.
(i) The historicistideal type tries to subject judges to law and to promote the political legitimacy of both law and adjudication by identifying
law with the historically understood meaning of past political decisions.
It is, of course, much contested whether originalist modes of interpretation are necessary or appropriate to avoid judicial arbitrariness and to
foster political legitimacy; I shall have more to say about this issue in Part
V. For now, I would insist on three points. First, the historicist ideal
type's goals of avoiding judicial arbitrariness and of achieving democratic
legitimacy are plausibly associated with the Rule of Law. Second, the aim
of democratic acceptability and accountability is at least partly distinct
yield (if at all) to a pragmatic consideration: Actual democracy is not all there is
to political freedom, and Hardwick is before us, appealing to law's republic.
186. For a partly parallel account of the rivalry and complementarity of rule- and nonrule-based conceptions of law under the Rule of Law, see generally Sunstein, supra note
72.
1997]
RULE OFLAW
from the purposes that the other ideal types most directly promote.' 8 7
Third, in at least some cases, originalist interpretation is a highly plausible if not a necessary means of promoting democratic legitimacy. The
paradigm case may be one in which an overwhelming majority has recently expressed a clear judgment, in either a statute or a constitutional
amendment, about the appropriate resolution of some controverted
issue.
(ii) Prominently supporting the formalist ideal type is the notion that
the law should be clear and knowable in advance of its application, to
permit people to plan their actions in light of prospective legal consequences.' 8 8 Virtually no one disputes either the validity of this purpose
(though there may be disagreement about its relative importance in comparison with other aims) or the proposition that clear rules will often
(even if not always) be the best means for promoting it.s
9
(iii) The Legal Process ideal type aims to provide a plausibly attainable
ideal for modem legal systems that include pervasive administrative bureaucracies and rely heavily on courts to adapt legal norms to rapidly
changing conditions. But another purpose may be less controversial.
The Legal Process ideal type is distinctive in its aim to show respect for
citizens, and especially their capacity for reason and reasonableness, by
explicitly associating reasoned deliberation and articulate reason-giving
with the Rule of Law.
(iv) Bare on the surface, the substantive ideal type distinctively attempts to align the Rule of Law with norms of substantive justice. Among
its attractions, this ambition is closely related to the traditional Rule-ofLaw desideratum that people should actually be ruled by law. The substantive ideal type holds out the prospect of moral reasons for obedience
even for those who believe that there is no general, content-independent
reason to obey the law.' 90
In light of the distinctive purposes of the various Rule-of-Law ideal
types, I would now suggest that the Rule of Law, in its most idealized
form, should be conceived as conjoining elements emphasized by
187. Although democratically accountable lawmaking is not strictly necessary for the
Rule of Law, it is reasonable to anticipate that the elements of the Rule of Law, and
particularly the requirements that people should be ruled by law and accept the supremacy
of legal authority, see supra text accompanying notes 80 & 32, are likely to be most fully
realized when applicable rules and principles enjoy the support of democratic majorities
or have been adopted through democratic processes. Cf. Michelman, supra note 4, at
1502 (sketching an ideal of "jurisgenerative" legal processes that inspire acceptance of
substantive outcomes as morally legitimate and deserving of obedience).
188. See supra notes 58-61 and accompanying text.
189. Thus even Professor Dworkin, in defending a conception of the Rule of Law
framed as a specific alternative to a formalist or what he calls a "rule-book conception,"
allows that "[any political community is better, all things equal, if its courts take no action
other than is specified in rules published in advance." Dworkin, supra note 76, at 1.
190. See, e.g., Robert Paul Wolff, In Defense of Anarchism 12-19 (1970); M.B.E.
Smith, Is There a Prima Facie Obligation to Obey the Law?, 82 Yale LJ. 950, 954-60
(1978).
COLUMBIA LAW REVLEW
[Vol. 97:1
each. 19 1 Perfectly realized, the Rule of Law would be rule (i) in accordance with the originally intended and understood meaning of the directives of legitimate, democratically-accountable lawmaking authorities, (ii)
cast in the form of intelligible rules binding on citizens, governmental
officials, and judges alike, (iii) as identified and elucidated in an interpretive process guided by publicly accessible norms and characterized by
reason-giving, and (iv) consistent with legitimate public purposes and
sound, shared principles of political morality. When law, in the positivist
sense, fails to satisfy any of these elements, the Rule of Law is less than
completely realized, but still may (or may not) be more nearly approximated than it is scorned or abandoned.
Recognition that the Rule of Law may be realized more or less perfectly suggests another sense in which the ideal types, though competitive
with each other, may not be wholly inconsistent. Because the Rule-of-Law
ideal never can be completely attained, we must make judgments, not
only about what would be best, but about what should count as "good
enough" for some practical purposes. Although the ideal types differ in
their accounts of the criteria that the "law" crucial to the Rule of Law
would ideally satisfy, for at least some theories, satisfaction of the criteria
associated with one or another of the ideal types might sometimes suffice.
For example, the ideal might be judicial decisionmaking under clear
rules, but where certain conditions were satisfied, decisions meeting the
requirements of the Legal Process ideal type might be deemed adequate.
If this situation obtained, the relationship among the ideal types would
more accurately be described as one of competition than as one of mutual exclusivity or contradiction.
I do not, of course, wish to suggest that all extant theories or conceptions of the Rule of Law actually subsume all of the ideal types in a relation of relative harmony. Some obviously do not. There is a conflict of
views that needs to be explained; some disagreements reflect a clash of
views that the ideal types, in relatively uncompromised form, help to
model. In short, I mean only to claim that a partial reconciliation is possible, not that any particular conception of the Rule of Law has successfully achieved such a reconciliation.
B. Rule-of-Law Rhetoric in ConstitutionalDiscourse
If my account of the status of the ideal types is roughly correct, it is
possible to make at least some sense of particular arguments that appeal
191. I believe that this conclusion is broadly consistent with the approach of Fuller,
supra note 5. Indeed, Fuller's aspiration to develop a theory linking seemingly disparate
elements helps to explain why some have viewed his work as substantive and natural-lawlike, see, e.g., H.L. Hart, Book Review, 78 Harv. L. Rev. 1281 (1965), whereas others have
viewed it as offering a formal, content-neutral analysis of the necessary conditions for rules
to be effective in guiding human conduct See, e.g., Radin, supra note 7, at 783-87.
1997]
RULE OF LAW
without elaboration to the Rule "of Law. 192 Critical arguments
paradigmatically point to some identifiable element of the Rule-of-Law
ideal (as modeled by one of the ideal types) and claim that failure to
satisfy it renders a practice or decision incompatible with the Rule of
Law. 193 Positive arguments, by contrast, typically assume the centrality or
priority of the elements modeled by one of the ideal types and claim that
those desiderata are sufficiently satisfied so that194at least tolerable consistency with the Rule of Law has been achieved.
192. See, e.g., Romer v. Evans, 116 S. Ct. 1620, 1628 (1996) (holding without further
elaboration that "[c]entral to... the idea of the rule of law... is the principle that
government and each of its parts remain open on impartial terms to all who seek its
assistance"); Planned Parenthood v. Casey, 505 U.S. 833, 854, 864-69 (1992) (asserting,
without explanation, that Rule of Law must be considered when a court contemplates
overruling precedent); Batson v. Kentucky, 476 U.S. 79, 99 (1986) ("[P]ublic respect for
...the rule of law will be strengthened if we ensure that no citizen is disqualified from jury
service because of his race."); Robinson v. Diamond Hous. Corp., 463 F.2d 853, 871 (D.C.
Cir. 1972) (asserting that Rule of Law requires preventing self-interested litigants from
disrupting legislative schemes that serve public interest); Bork, supra note 9, at 318, 349
(arguing that Rule of Law mandates deference to moral judgment of legislators or
Framers).
193. See, e.g., Seminole Tribe v. Florida, 116 S.Ct. 1114, 1162 n.32 (1996) (SouterJ.,
dissenting) (suggesting that too impregnable a doctrine of state sovereign immunity would
be incompatible with the Rule of Law); TXO Prod. Corp. v. Alliance Resources Corp., 509
U.S. 443, 475 (1993) (O'Connor, J., dissenting) (arguing for constitutional limits on
punitive damage awards and observing that considerations that may sometimes influence
jury verdicts, "such as caprice, passion, bias, and prejudice are antithetical to the rule of
law"); Michigan v. Harvey, 494 U.S. 344, 369 (1990) (Stevens,J., dissenting) ("An argument
that a rule of law may be ignored, avoided, or manipulated simply because it is
'prophylactic' is nothing more than an argument against the rule of law itself."); Morrison
v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J., dissenting) (objecting that the majority's
separation-of-powers analysis was "ungoverned by rule, and hence ungoverned by law");
Nixon v. Fitzgerald, 457 U.S. 731, 767 n.2 (1982) (White, J., dissenting) (arguing that
according the President absolute immunity from suits for civil damages based on official
acts marks "the abandonment of the rule of law"); Bork, supra note 9, at 318, 349
(politicized and activist courts threaten to delegitimize the rule of law).
194. See, e.g., Missouri v.Jenkins, 115 S.Ct. 2038, 2068 (1995) (establishing limits on
the capacity of federal district courts to enter remedies for school segregation and pointing
to historic understanding that "[i]f their remedial discretion had not been cabined,....
equity courts would have undermined the rule of law and produced arbitrary
government"); Casey, 505 U.S. at 864-69 (explaining that Rule of Law requires courts to
decide cases by neutral principles unaffected by social or political pressures); James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 537 (1991) (mandating retroactive
enforcement of a prior decision, partly because "selective prospectivity... breaches the
principle that litigants in similar situations should be treated the same, a fundamental
component of... the rule of law"); Regents of the Univ. of California v. Bakke, 438 U.S.
265, 319 n.53 (1978) (defending limits on race-based admissions preferences as necessary
to maintain fair, individualized decision procedures, on the ground that "an underlying
assumption of the rule of law is the worthiness of a system ofjustice based on fairness to
the individual"); Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971) (holding that the
Constitution requires observance of regular procedures before the imposition of a legal
disability and noting that "it is procedure that marks much of the difference between rule
by law and rule by fiat"); Robinson v. Diamond Hous. Corp., 463 F.2d 853, 871 (D.C. Cir.
1972) (broadening protection of tenants under District of Columbia housing laws on
COLUMBIA LAW REVIEW
[Vol. 97:1
As my discussion of the potential complementarity of the Rule-ofLaw ideal types has already suggested, there is no necessary inconsistency
between making or accepting arguments that resonate with one ideal
type in some contexts and making or accepting arguments that resonate
with other ideal types in other contexts. Within any tenable theory of the
Rule of Law, more than one ideal type should have a role.
It should be equally clear, however, that there is no guarantee that
arguments resonating with more than one ideal type will in fact reflect a
consistent, underlying theory of how the multiple Rule-of-Law considerations relate to each other. Nor, for the most part, is it reasonably possible
to discern whether a general, internally consistent conception of the Rule
of Law underlies the claims offered even by relatively prominent participants in legal and political debates. Justice Scalia, for example, has probably written more than any other Justice about the Rule of Law, and it
would be easy to charge him with inconsistency. 195 He has, for example,
seemed to endorse the historicist conception in his embrace of originalism; 196 the formalist conception in his argument that the Rule of Law is
the law of rules; 19 7 the Legal Process conception in his support for the
view that courts should accept any reasonable and procedurally regular
interpretation of a vague statute by an administrative agency; 19s and, arguably, the substantive conception in cases in which he has relied on expressly normative arguments to reach conclusions about the impermissibility of affirmative action and the reach of the Takings Clause that
appear inconsistent with the original understanding. 199 On the surface,
the positions appear inconsistent, and indeed they may be. Yet, as I have
suggested, it is also possible thatJustice Scalia's conception of the Rule of
Law comprises a complex web of sometimes competing principles, the
respective weights of which vary with changing context. Based on the
available evidence, it is impossible to say.
account of applicable statute, legislatively-declared social policy, "and in the final analysis,
by respect for ...
the rule of law").
195. For examples of such charges in the literature, see, e.g., Sullivan, supra note 36,
at 81 (observing that "Justice Scalia's attachment to interpretive rules involving text and
original meaning... apparently does not span all clauses of the Constitution"); Arthur
Stock, Note,Justice Scalia's Use of Sources in Statutory and Constitutional Interpretation:
How Congress Always Loses, 1990 Duke LJ. 160, 175-80 (noting Scalia's inconsistent use
of secondary sources when engaged in constitutional, as opposed to statutory, analysis).
196. See Scalia, supra note 41, at 856-61.
197. See Scalia, supra note 42, at 1178.
198. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law,
1989 Duke LJ. 511, 517-21.
199. With respect to affirmative action, see Adarand Constructors, Inc. v. Pena, 115 S.
Ct. 2097, 2118-19 (1995) (Scalia, J., concurring in part and concurring in the judgment);
City of Richmond v.J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia,J., concurring in the
judgment); with respect to the Takings Clause, see Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1028 n.15 (1992). For discussion of the relation ofJustice Scalia's
views to the original understanding, see infra notes 225-231 and accompanying text.
1997]
RULE OF LAW
Just as it is impossible to impute a theory of the Rule of Law to Justice
Scalia, so it typically will be with others.200 The effort to ascribe a theory
will most often be underdetermined by the evidence, and frequently the
underdetermination will be plain. The result, which is regrettable, is that
appeals to the Rule of Law in public, political, and legal discourse characteristically pronounce conclusions, but reveal little of the standard of
judgment that the conclusions purport to reflect. The comparative utility
of the concept of the Rule of Law, as either an affirmative ideal or a
critical standard, suffers accordingly. Recognized or not, confusion
abounds.
C. The Vitality of the Rule-of-Law Ideal
In light of the confusion surrounding Rule-of-Law rhetoric, a critic
20 1
might well conclude that the Rule of Law is an ideal bereft of meaning.
Viewed through skeptical lenses, the Rule of Law might appear, at best, to
be no more than an honorific title for an amalgam of the values, and the
preferred means for promoting those values, reflected in the competing
Rule-of-Law ideal types. At worst, the Rule of Law might be seen as an
analytic jumble that can foster nothing but confusion until its diverse and
competing values are disaggregated. In short, it might appear that the
Rule of Law, upon analysis, is easily reducible into component parts, all
reasonably independent of each other, and that there is no larger whole
worth retaining.
There are at least two grounds for resisting this challenge's implicit
prescription for abandonment of Rule-of-Law discourse. First, the values
associated with the Rule of Law are very important ones, which frequently
deserve the support of emotively powerful rhetoric. Appeals to the Rule
of Law continue to pack a rhetorical punch. 20 2 Perhaps participants in
public debates, mindful of the complexity of the Rule-of-Law ideal, ought
to show some diffidence in tossing off claims and accusations based on an
unelaborated (and possibly non-existent) conception of the Rule of Law.
But Rule-of-Law values often merit strong defense. As suggested already,
appeals to the Rule of Law generally serve well enough to call attention to
particular virtues or defects of judicial decisions, governmental structures, or executive or legislative actions, even if they203fail to identify the
full, complex content of the standard of assessment.
200. For example, there are themes in the writings of Frank Michelman that resonate
with both the Legal Process and the substantive ideal types. See supra note 177 and
accompanying text. I have drawn on his work in developing both ideal types.
201. Cf. Shklar, supra note 3, at 1 (asserting that "contemporary theories [of the Rule
of Law] fail because they have lost a sense of what the political objectives of the ideal of the
Rule of Law originally were and have come up with no plausible restatement").
202. Cf. Michelman, supra note 4, at 1499-1503 (explaining the centrality of the Rule
of Law in widely shared understandings of American constitutionalism).
203. See supra notes 192-194 and accompanying text
COLUMBIA LAW REViEW
[Vol. 97:1
Second, the ideal of the Rule of Law is not in fact reducible without
loss to the sum of its parts. On the contrary, the contemporary attraction
of the ideal lies in its potential to link and order diverse values and means
for their promotion, as reflected in the competing ideal types, into a relationship of mutual complementarity. A legal system-and the institutions, practices, and decisions that it comprises-must pursue many
goals, and would ideally reflect many values. To do so in the best way, a
legal system requires intermediate ideals of prioritization and order that
are more local than that of overall 'justice. '20 4 The Rule of Law, I would
submit, is most plausibly viewed as an architectonic ideal that not only
incorporates but orders its component values and elements.
If I am right, the challenge is not to bury the ideal of the Rule of
Law, and not to praise it either. Instead, the challenge is to develop a
theory of the Rule of Law that furnishes a reasonably complete, transparent, architectonic ideal, in light of which particular Rule-of-Law judgments could be made and assessed.
V. TowARD AN INTEGRATED THEORY OF THE Rur- OF LAW
To this point, I have offered arguments-based on widely shared
patterns of linguistic usage, claims about practical workability, and common sense-about the necessary structure of any plausible conception or
theory of the Rule of Law. In particular, I have argued that any plausible
theory must include multiple strands, several of which I have identified,
and must explain how those diverse and sometimes competitive strands
relate to each other. In this Part, I take a more contestable turn. Instead
of making general claims about the necessary structure of any plausible
conception of the Rule of Law-claims that could be accepted by defenders of quite different theories-this Part offers some preliminary
thoughts about how the best or most defensible theory of the Rule of Law
might be constructed.
A. The Method of Argument
In the face of linguistic indeterminacy and normative disagreement,
the best starting point for the development of a theory of the Rule of Law
lies in the conventionally recognized elements of the Rule of Law, vague
though they are, that were introduced in Part 1.205 Arguments about how
to give these elements more specific content, and in particular about how
to understand the nature of the "law" that the Rule of Law ideal presupposes or can be satisfied with, inevitably will be largely normative, but
they should be anchored by at least two reference points. First, theories
of the Rule of Law should be measured against the historic purposes of
the Rule of Law as sketched in Part I: to protect against anarchy and
204. Cf. Rawls, supra note 23, at 235-43 (sketching a theory of the Rule of Law within
a broader theory of social justice).
205. See supra notes 29-33 and accompanying text.
19971
RULE OF LAW
establish a scheme of public order, to allow people to plan their affairs
and to protect against
with advance knowledge of the legal consequences,
20 6
arbitrariness.
official
of
types
at least some
Second, although the Rule of Law is an ideal, not a mirror of existing
practices, there should be a presumptive preference for theories that represent the Rule of Law as a plausible aim for modem legal systems. I do
not mean wholly to foreclose the possibility that the Rule of Law should
be pronounced unapproachable under modem conditions. Analysis
might lead ineluctably to this conclusion. Nonetheless, the Rule of Law is
a historic ideal, which must be understood through historic attempts to
realize it. This consideration justifies a preference for a theory that portrays the Rule of Law as a realistic, even if not an easily or perfectly attainable, ideal.
B. Purposes
Although I have repeatedly characterized the Rule of Law as an ideal
that can never be realized perfectly, the point of most invocations of the
Rule of Law is not in fact to describe an ideal. One characteristic purpose
is to condemn particular decisions, practices, rules, or legal systems as
unacceptably distant from the ideal. Another is to defend or justify particular decisions, practices, rules, or legal systems as sufficiently close to
be admirable, or at least acceptable.
To be of maximum practical value, a theory of the Rule of Law
should be crafted to serve these purposes. It should expressly address
issues of the necessity and sufficiency of the realization (which can only
be a matter of degree) of such Rule-of-Law desiderata as capacity to provide advance knowledge of legal rights and obligations, efficacy in guiding conduct, stability, and subordination of officials (including judges) to
the authority of law.2 0 7 No simple formula will suffice. Practices that sat-
isfy Rule-of-Law values in some circumstances may fail to do so in others.
attend to the diverse contexts
A theory of the Rule of Law must therefore
208
in which Rule-of-Law questions arise.
C. Priorityof Values Modeled by the FourIdeal Types
A full theory of the Rule of Law should incorporate most of the values underlying the four ideal types. To the extent that the ideal types
reflect conflicting values or approaches, a sound theory needs to assign
relative priorities, assess the significance of greater and lesser departures
206. See supra notes 23-26 and accompanying text.
207. See supra notes 29-33 and accompanying text (listing traditionally recognized
elements of the Rule of Law). Although the formulation here differs in detail, the essential
requirements are merely expressed differently.
208. See Sunstein, supra note 72, at 1006-23.
COLUMBIA LAW REVIEW
[Vol. 97:1
from relevant9desiderata, and identify the pertinence of various contex20
tual factors.
In assessing the potential contributions of the four ideal types to an
overarching theory, I follow the same sequence as in previous parts: the
historicist ideal type is considered first, followed respectively by the formalist, Legal Process, and substantive ideal types. This order of consideration may have substantive implications. What is drawn from the ideal
types that are considered first (the historicist and formalist ideal types),
especially after their limitations and the resulting needs for qualification
have been noted, may tend to shape the main outlines of my sketch for a
Rule-of-Law theory. With those outlines established, the Legal Process
ideal type plays largely a complementary or supplementary role. The substantive ideal then advances additional standards that "law"-once identified as such by the other ideal types-must meet in order to satisfy the
requirements of the Rule of Law. Although this ordering is obviously
contestable, it tracks most traditional understandings, which have
equated the Rule of Law with rules of relatively determinate meaning,
2 10
fixed in advance of their application by authoritative decisionmakers.
My assumption is that a theory of the Rule of Law must be rooted in
ordinary, pre-theoretical understandings, even as it aspires ultimately to
clarify, to qualify, and sometimes to reform.
1. The Historicist Ideal Type. - As suggested above, the historicist
ideal type reflects two closely related judgments: law should be established in advance of its application, so that it can rule both citizens and
courts, and adherence to original understandings as the meaning of law
211
will promote democratic accountability and thus legal legitimacy.
These considerations deserve to be treated as controlling in at least some
contexts; as I have noted already, the case of a recent constitutional
amendment with a clear, central purpose may be paradigmatic. Moreover, if this paradigm is treated as exemplary, it is possible to go further:
presumptively, the Rule-of-Law ideal calls for decision in accordance with
original understandings. Even so, the presumption should be understood realistically, and it should not be too strong.
First, the legal search for original understanding is appropriately influenced by a sense of the purpose of the enterprise-to achieve practically workable and morally tolerable resolutions of contemporary legal
209. Cf. id. (emphasizing the centrality of context in determining the extent to which
the Rule of Law requires rule-ness, but suggesting that the relevant contextual factors
could not be encapsulated in a general theory).
210. See supra notes 27-33 and accompanying text.
211. Although it is not always appreciated by constitutional originalists, this argument
depends for its validity on the success of afurther argument that constitutional judgments
made in the historically remote past should be regarded as having current, normative force
as a matter of plausibly democratic theory. For a sketch of the best such argument of
which I am aware, see supra note 43.
1997]
RULE OF LAW
issues.21 2 To this end, judges properly observe canons of construction
designed to promote the law's consistency and coherence; 2 13 they prefer
interpretations that render statutes consistent with constitutional values;2 14 and, when ascribing meaning to vague or open-textured language,
they seek formulations that serve such Rule-of-Law values as providing
effective guidance to those who wish to follow the law.2 1 5 Judging is not a
mechanical enterprise. Especially across the gulfs of time, change, and
unforeseeability, the application of a text (and especially an old text) to
judgcurrent issues inevitably requires the exercise of hermeneutic
216
nonetheless.
judgment
but
choice,
unconstrained
ment-not
Second, especially as the temporal gap between law-making and lawapplication widens, the normative consensus that once endorsed the originally understood meaning of a constitutional provision may weaken or
even dissipate completely, and the factual or normative predicates may be
altered. In such cases, stringent enforcement of dated, historical understandings may do more to frustrate than promote democratic legitimacy.2 1 7 Originalists of course object that, even when the original understanding of old enactments would no longer enjoy majority support, any
change of controlling legal norms should be made by democratically accountable decisionmakers, not by courts.2 1 8 But the responsibility for
maintaining a coherent and comprehensive body of law reflective of
widely shared values outstrips the competence of any imaginable modem
legislature, and constitutional amendment is sufficiently cumbersome to
212. Cf. Michael W. McConnell, On Reading the Constitution, 73 Comell L. Rev. 359,
360-61 (1988) ("Knowing why we read the Constitution helps us to decide how to read the
Constitution. Form follows function. We are reading it to determine what consistent,
coherent rules of law our forefathers laid down for the governance of those elected to rule
over us."); Scalia, supra note 41, at 864 (noting that "the inevitable tendency ofjudges to
think that the law is what they would like it to be" will "cause most errors in judicial
historiography to be made in the direction of projecting ... current, modem values" on
historical sources and terming this a "happy fault").
213. See, e.g., Cass R. Sunstein, After the Rights Revolution: Reconceiving the
Regulatory State 160-226 (1990); William N. Eskridge, Jr., Public Values in Statutory
Interpretation, 137 U. Pa. L. Rev. 1007, 1017-61 (1989); William N. Eskridge, Jr. & Philip
P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking,
45 Vand. L Rev. 593, 595-629 (1992).
214. See Sunstein, supra note 213, at 164-65; Eskridge & Frickey, supra note 213, at
598 ("A good many of the substantive canons of statutory construction are directly inspired
by the Constitution.").
215. See Scalia, supra note 42, at 1179.
216. See Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1173 (1993);
Lawrence Lessig, Understanding Changed Reading- Fidelity and Theory, 47 Stan. L. Rev.
395, 396 (1995).
217. See, e.g., Strauss, supra note 81, at 919-23, 928-32; Sunstein, supra note 72, at
1008-12.
218. See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the
Fourteenth Amendment 283-99 (1977); Scalia, supra note 41, at 862.
COLUMBIA LAW REVIEW
[Vol. 97:1
require at least some play in the joints. 2 19 In addition, much of the
Constitution expresses moral aspirations, the reach and implications of
which may evolve with changes in social, technological, and economic
context.
Occurring within the forms and conventions of the legal process, the
adaptation of legal norms is often quite consistent with the traditionally
recognized elements of the Rule of Law. For example, legal evolution is
often quite predictable; reasonably informed observers remain able to
adapt their behavior in light of likely judicial decisions. 22 0 In addition,
conventions of legal reasoning are sufficiently structured so that judicial
decisionmakers are at least bounded and guided by law, even if their decisions are not uniquely determined. 2 2 1 Staunch originalists sometimes
protest that the relevant conventions are too loose and claim that the
Rule of Law is impossible without strict adherence to originalist principles. 222 But at least two phenomena belie the latter claim.
The first is precedent that is incompatible with originalist principles.
Virtually no one denies that our legal system abounds with non-originalist
precedent. Nor is there much dispute that non-originalist precedent,
once ensconced, gives rise to Rule-of-Law interests of its own. 2 23 For nonoriginalist precedent to generate Rule-of-Law interests, it must count as
224
law in at least some minimal sense under the Rule of Law.
219. It is too often overlooked that non-originalist interpretation is by no means
always counter-majoritarian. See, e.g., Bruce Ackerman, Liberating Abstraction, 59 U. Chi.
L. Rev. 317, 317-21 (1992); Richard A. Posner, Bork and Beethoven, 42 Stan. L. Rev. 1365,
1369-70 (1990) ("The question posed by an originalist versus an activist or a pragmatic
judiciary is not one of democracy or no democracy."). In fact, in light of changed
circumstances and often under pressure of practical imperatives, the Supreme Court has
upheld both congressional and executive powers that appear to go beyond the original
understanding. See Ackerman, supra, at 321-28; Monaghan, supra note 16, at 727-39.
220. See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and
Constitutional Remedies, 104 Harv. L Rev. 1731, 1758-64 (1991).
221. See, e.g., Richard H. Fallon, Jr., A Constructivist Coherence Theory of
Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1202-04 (1987); Strauss, supra note
81, at 925-35. Further, once a Supreme Court decision is in place, lower courts may be
bound by its authority quite as determinately as by the originally intended meaning of a
constitutional provision. See generally Evan H. Caminker, Why Must Inferior Courts Obey
Superior Court Precedents?, 46 Stan. L. Rev. 817 (1994) (discussing lower courts'
obligations to follow Supreme Court precedent).
222. See, e.g., Berger, supra note 218, at 363-96; Bork, supra note 9, at 251-65.
223. See, e.g., Bork, supra note 9, at 155-59; Balkin, supra note 127, at 930-42;
Monaghan, supra note 16, at 740; cf. United States v. Lopez, 115 S. Ct. 1624, 1650 n.8
(Thomas, J., concurring) ("Although I might be willing to return to the original
understanding, I recognize that many believe that it is too late in the day to undertake a
fundamental reexamination of the past 60 years. Consideration of stare deds... may
convince us that we cannot wipe the slate clean.").
224. There is currently a substantial debate in constitutional law and theory about the
nature of precedent, its authority in constitutional interpretation, and its relation under
the Rule of Law to original understandings and the set of assumptions reflected in the
historicist ideal type. See, e.g., Larry Alexander, Constrained by Precedent, 63 S. Cal. L.
Rev. 1 (1989); Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L &
1997]
RULE OFLAW
The second phenomenon involves the apparent unwillingness of
some of those most prominently associated with the historicist ideal type
to follow its dictates on a consistent basis. 22 5 For example, Justice
Antonin Scalia professes a commitment to originalism, 2 26 and Justice
Clarence Thomas often pursues an originalist methodology,2 27 but both
also have reached results that are neither consonant with historically understood meanings nor dictated by precedents directly on point.228 For
example, Justices Scalia and Thomas have held that federally mandated
affirmative action is subject to strict judicial scrutiny,2 29 even though this
holding appears impossible to reconcile with the original understanding
of any constitutional provision restricting the powers of the federal government. 23 0 Justice Scalia has similarly propounded an interpretation of
Pub. Pol'y 23 (1994); Monaghan, supra note 16; Frederick Schauer, Precedent, 39 Stan. L.
Rev. 571 (1987). Nearly all of the central issues could be reformulated as involving when,
in light of the immanent ideals of law or the broadly conceived purposes of particular
bodies of law, the presumption in favor of rule by a relatively narrow conception of original
understandings can be overcome.
225. See, e.g., Posner, supra note 219, at 1373-78 (cataloguing Robert Bork's
departures from originalist theory); Segall, supra note 140, at 1019 (arguing that Justice
Scalia sometimes subordinates originalist principles to his desire for clear rules).
226. See Scalia, supra note 41, at 862-64.
227. See, e.g., United States v. Lopez, 115 S. Ct. 1624, 1642-51 (1995) (Thomas, J.,
concurring); United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875-1914
(1995) (Thomas, J, dissenting).
228. Both Justices appear to accept at least some non-originalist precedent. For
example, Justice Scalia has explained that he will accept some aspects of "dormant"
commerce clause jurisprudence that he feels cannot be justified on originalist grounds.
See Intel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 78-79 (1993) (Scalia, J.,
concurring in part and concurring in the judgment). For a recent acknowledgment by
Justice Thomas of the possible claims of stare decisis, see supra note 223. In addition, both
justices have accepted precedent providing a predicate for their holding that the Due
Process Clause of the Fifth Amendment requires strict judicial scrutiny of federal
affirmative action, even though the proposition that the Fifth Amendment was intended to
have such a result is untenable on originalist principles. See infra note 230 and
accompanying text.
229. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2118-19 (1995) (Scalia,
J., concurring in part and concurring in the judgment); id. at 2119 (Thomas, J.,
concurring in part and concurring in the judgment); Richmond v. J._A. Croson Co., 488
U.S. 469, 520 (1989) (Scalia, J., concurring in the judgment).
230. Because the Equal Protection Clause refers only to action by states, the federal
government is constrained, if at all, only by the Due Process Clause of the Fifth
Amendment. The original understanding of the Due Process Clause appears to have
encompassed no substantive restrictions on the federal government. See Brest, supra note
47, at 238; Grey, supra note 16, at 710-11. There was, of course, a precedential foundation
for holding the federal government subject to equal protection norms; in Bolling v.
Sharpe, 347 U.S. 497, 500 (1954), the Court held that it would be untenable to uphold the
constitutionality of federally mandated public school discrimination while invalidating
state discrimination in Brown v. Board of Education, 347 U.S. 483 (1954). Nonetheless,
precedent could not fairly be said to dictate the decision in Adarand. Although the Court
had held state-mandated affirmative action subject to strict scrutiny in Croson, 488 U.S. at
493-94, federally mandated affirmative action presented a clearly distinguishable issue, not
necessarily governed by Croson, as the Court recognized in Metro Broadcasting, Inc. v.
COLUMBIA LAW REVIEW
[Vol. 97:1
the Takings Clause that he acknowledges to be in conflict with the original understanding.23 1 One view would be that Justices Scalia and
Thomas have simply betrayed their historicist Rule-of-Law ideals to advance their policy preferences. A more charitable interpretation would
be that their working conceptions of the Rule of Law, as they should be,
are more complex than perhaps even they have recognized.
To sum up, a commitment to the historicist ideal type or to constitutional originalism is almost necessarily presumptive only. The presumption is strongest, and the underlying values most directly engaged, in
cases involving recent enactments with clearly understood meanings. But
the presumption may be defeated, especially as time undermines the factual and normative predicates on which original understandings rested,
and as non-originalist precedent itself acquires the status of law and Ruleof-Law interests accrue around it. As will become clearer below, other
Rule-of-Law values or desiderata can, and indeed must, fill any gap that
displacement of the historicist ideal type might otherwise appear to leave.
2. The Formalist Ideal Type. - The formalist ideal type reflects the
assumption that clear and determinate rules are necessary for both citizens and officials, including judges, to be ruled by the law. It is probably
correct, as a generalization, that rules are more likely than standards23 2
or other multi-variable formulae to achieve the determinacy suggested by
the ideal of being "ruled" by law.2 33 Indeed, this generalization might
support a presumption, within a theory of the Rule of Law, that rules
should be preferred to standards. 2 - In American law, the intuitive force
of this proposition is perhaps most strongly felt in the domain of criminal
law, where demands for clarity and fair notice reach their zenith.23 5 The
FCC, 497 U.S. 547, 565 (1990) and in Croson itself, 488 U.S. at 490-91. Indeed, to reach
the result in Adarand that federally mandated affirmative action is subject to strict judicial
scrutiny, Justices Scalia and Thomas were if anything embarrassed by precedent as well as
original understanding, since a previous Supreme Court decision, Fullilove v. Klutznick,
448 U.S. 448 (1980), had upheld a federally mandated affirmative action program with
significant similarities to that involved in Adarand without a majority of the Court applying
strict judicial scrutiny.
231. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992)
(Scalia, J.) (acknowledging it to be "largely true" that the "'understanding' of land
ownership" reflected in his majority opinion, under which property may be "taken" by
government regulation as well as physical occupation, "is not supported by early American
experience," but characterizing historical understandings as "irrelevant" in light of
intervening precedent and the reconcilability of his interpretation with the language of the
constitutional text).
232. On formalism's definition of rules as contrasted with standards, see supra note
58.
233. See Keating, supra note 29, at 11-12.
234. See supra note 189 and accompanying text.
235. See Altman, supra note 68, at 53-54. But see Kelman, supra note 36, at 25-32
(observing that a number of important criminal prohibitions are framed in standard-like
or vague terms); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct.
Rev. 345, 399-405 (1995) (emphasizing that there is a higher tolerance for vagueness and
uncertainty in the criminal law than is often appreciated). For suggestions that tolerance
1997]
RULE OFLAW
preference for rules rather than standards also exerts itself in administrative law, where it is widely believed that Rule-of-Law ideals make it preferable for agencies to implement vague statutory mandates by establishing
clear rules (preferably through rulemaking), rather than by rendering
23 6
case-by-case decisions pursuant to open-ended standards.
Nonetheless, the presumptive preference for rules cannot be rigid.
First, as is well recognized, "rules" and "standards" do not so much define
a dichotomy as reflect ranges along a continuum. 237 A sensible theory of
the Rule of Law would need to evaluate the relative importance of varying
degrees of rule-ness in comparison with other desiderata, some of which,
including adherence to the original understanding (which may not always be rule-like), may themselves be internal to the Rule-of-Law ideal.
Second, the premise that rules are more effective and determinate
than standards as guides to conduct depends largely on the assumption
that there would be substantial uncertainty and disagreement concerning
the application of standard-like terms. But the validity of this assumption
is contingent. In contexts marked by normative consensus, there might
be broad agreement about how standards should be applied, and standards would permit both citizens and officials to be ruled by law. 238 In
addition, asJudge Posner has remarked, "[sitandards that capture lay intuitions about right behavior (for example, the negligence standard) and
that therefore are easy to learn may produce greater legal certainty than a
for vagueness may vary with the nature of the conduct arguably subject to criminal
prohibition, thereby reflecting considerations analogous to those modeled by the
substantive ideal type, see Note, The Void-for-Vagueness Doctrine in the Supreme Court:
A Means to an End, 109 U. Pa. L. Rev. 67 (1960).
236. See I Kenneth Gulp Davis & Richard J. Pierce, Jr., Administrative Law Treatise
260-78 (3d ed. 1994); Abner S. Greene, Adjudicative Retroactivity in Administrative Law,
1991 Sup. Ct. Rev. 261, 263-64 (1992). This preference involves two issues that are to
some extent separable. One has to do with the relative determinacy of the applicable
substantive norms. The other concerns the procedures-rulemaking or adjudicationthrough which the controlling norms are promulgated. Although the rule-like norms
commended by the formalist ideal type can sometimes be developed through adjudication,
see Davis & Pierce, supra, at 260-78, the rulemaking model typically provides the agency
with a broader information base for propounding norms of broadly controlling
applicability, gives clearer notice to affected parties, and avoids problems of retroactivity
that sometimes arise when rules are first articulated in adjudications. See id. at 260-66.
237. See, e.g., Duncan Kennedy, The Stages of Decline of the Public/Private
Distinction, 130 U. Pa. L. Rev. 1349, 1352-53 (1982); Sullivan, supra note 36, at 61.
238. By contrast, concerns about statutory "vagueness" are appropriately heightened
when agreement about the application of a standard divides along cultural lines, to what
otherwise would be the disadvantage or unfair surprise of minority groups. See Robert
Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 Cal. L. Rev. 491
(1994).
A close, functional analogue to normative consensus may exist in situations in which
an administrative agency effectively communicates its intelligible goals or standards to an
attentive regulatory constituency through "announcements, educational programs,
interpretations, advice, threats, inspections, subpoenas, regulations, informal hearings,
and a variety of similar techniques." Edward L. Rubin, Law and Legislation in the
Administrative State, 89 Colum. L. Rev. 369, 405 (1989).
COLUMBIA LAW REVIEW
[Vol. 97:1
network of precise but technical, nonintuitive rules covering the same
ground."23 9 In short, the greater the normative consensus, the less the
realization of Rule-of-Law values depends on the law being a law of
24 0
rules.
Third, just as rules are not always necessary to the Rule of Law,
neither are they sufficient in all contexts. Rules can conflict, or take the
recurrent form of rule and counter-rule. 241 If so, there will be uncertainty and disagreement concerning which rule applies to particular facts.
Rule-like formulations may prove similarly ineffectual in promoting Ruleof-Law values if the formal law is compendious, intricate, little-known,
and out of touch with ordinary understandings of what is fair and
24 2
appropriate.
Finally, the strength of the Rule-of-Law preference for rules over
standards must be assessed in light of other Rule-of-Law interests. For
example, the originally understood meaning of some constitutional provisions, such as the Due Process Clause, may have been expressly stan2 43
dard-like. Considerations of substantive justice are also relevant.
Sometimes it may be relatively easy to frame a rule with sufficient precision of aim to achieve a good approximation of uniform, substantivejustice. But sometimes occasions of application will be hard to foresee, and
it will be difficult if not impossible to formulate rules in advance that
239. Richard A. Posner, The Problems of'Jurisprudence 48 (1990).
240. Cf. Solum, supra note 3, at 120, 144 (arguing that judicial practice of "equity" is
broadly consistent with the Rule of Law, since a virtuous judge will be able to apprehend
the result that best accords with law's spirit, and by implication that there will be enough
normative consensus in society to identify inequitable departures from the path ofjudicial
virtue).
241. See, e.g., Kennedy, supra note 36, at 1700-01; Singer, supra note 17, at 16-17.
242. See Rubin, supra note 238, at 404-05.
243. Critics have sometimes objected that formalist conceptions of the Rule of Law
should be rejected on normative grounds, because they tend to abet opposition to
progressive legislation and judicial decisionmaking. See, e.g., Margaret Jane Radin, The
Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88
Colum. L. Rev. 1667, 1680-84 (1988). There is no doubt that formalist conceptions of the
Rule of Law have frequently been associated with substantive political positions sometimes
labeled "right-wing." Hayek, for example, thought that the Rule of Law required a degree
of generality and determinacy in legal directives that rendered economic regulation
virtually impossible. See Friedrich A. Hayek, The Constitution of Liberty 220-33 (1960).
In the long run, however, it is unclear that there is any stable connection between a
formalist conception of the Rule of Law and either left- or right-wing politics; the
adherents of either can frame rules to promote their preferred ends. See Sullivan, supra
note 36, at 96-97.
Less easily rejected is the claim that formalist conceptions of the Rule of Law are
incompatible with the ideal of equity, which prescribes that "legal decision makers
sometimes ought to depart from the rules in order to do justice in particular cases."
Solum, supra note 3, at 120. Among the reasons to value this equitable ideal is its close
connection with the moral virtue of mercy. See Nussbaum, supra note 75 (equating the
tradition of equity with the tradition of mercy and defending both traditions); cf. Kennedy,
supra note 36, at 1685 (associating standard-like approaches to adjudication with the value
of altruism).
1997]
RULE OFLAW
could reasonably be applied to all cases. 244 Again, the Due Process
Clause may be an example.
In sum, the rules championed by the formalist ideal type will very
often, perhaps even presumptively, give clearer guidance and greater predictability than more vaguely formulated standards. But rules will not always do so; context matters. In addition, Rule-of-Law values associated
with substantive justice must sometimes be taken into account. The intershould not always prevail over the interest in resolving cases in advance
2 45
est in resolving them fairly.
3. The Legal ProcessIdeal Type. - When presumptions in favor of the
historicist and formalist ideal types are overcome, the Legal Process ideal
type should assume a central place in a theory of the Rule of Law. At
least in cases not clearly covered by rule, the notion of "unreasoned justice" is nearly an oxymoron.2 46 Nor does it seem plausible that a modem
legal system, no matter how fervent its commitment to the Rule of Law,
could be organized entirely on a rule-like basis. Among its implications, a
complete rejection of the Legal Process ideal type would imply that the
common law-a genuine hallmark of the western legal systems most com2 47
mitted to the Rule-of-Law ideal-is incompatible with the Rule of Law.
The most pressing question, framed by a number of substantive and
methodological debates in constitutional law, involves the circumstances
under which the Rule of Law's demand that both citizens and officials
should be ruled by law can be satisfied-in the absence of relatively
straightforward application of an original understanding or a pre-existing
rule-by a reasoned connection, forged by publicly accessible norms, between formally promulgated materials and an authoritative decision.
Defenders of Legal Process theories commonly combine two strategies. The first, which might be understood to concede that the ideal
would be clear rules established in advance by authoritative decisionmakers and thereafter capable of guiding private conduct and adjudication alike, is to emphasize the phenomenon of "easy cases." 248 Easy
244. See Solum, supra note 3, at 124.
245. See Nussbaum, supra note 75, at 96; Solum, supra note 3, at 124.
246. Although some legal institutions are purposely exempted from any requirement
of reason-giving, see supra note 159 and accompanying text, the procedural formalities
surrounding many of them seem designed to ensure reasoned, deliberative
decisionmaking. Trial byjury is a good example. To cite another, the Supreme Court has
articulated the criteria generally governing the exercise of its certiorari jurisdiction, and
individualJustices are free to criticize what they take to be their colleagues' departure from
those standards. See generally Richard H. Fallon,Jr., et al., Hart & Wechsler's The Federal
Courts and the Federal System 1691-1714 (4th ed. 1996) (reviewing the Supreme Court's
certiorari policy).
247. See generally Frederick Schauer, Is the Common Law Law?, 77 Cal. L. Rev. 455
(1989) (reviewing Melvin A. Eisenberg, The Nature of the Common Law (1988))
(discussing tension between the common law and the Rule of Law).
248. See Frederick Schauer, Easy Cases, 58 S.Cal. L. Rev. 899, 415-16 (1985);
Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L.
Rev. 462, 471-76 (1987).
COLUMBIA LAW REVIEW
[Vol. 97:1
cases reflect instances in which the Rule-of-Law ideal is clearly fulfilled.
The decisionmaking in hard cases is then acknowledged to approximate
the Rule-of-Law ideal less perfectly, but still defended as coming close
enough to be morally and politically acceptable, at least within a legal
system that, overall, satisfies the elements of the Rule of Law quite well.2 4 9
A second strategy, which can be pursued independently but more
commonly is followed in conjunction, idealizes the process of legal reasoning and reason-giving. Emphasizing that the subjects of legal justice
are reasonable and rational persons, this approach maintains that authoritative decisions that address citizens' powers of reasonableness and rationality-even if unexpected, based partly on contestable political premises, or capable of lawfully being made differently-amply provide the
subjects of justice with all that law, as an ideal, reasonably owes them. 250
Continuing to attempt no more than to sketch relevant considerations, let me respond to this defense of a sometime reliance on the Legal
Process ideal type with three general observations. First, the extent to
which the Rule of Law is satisfied by the forms of legal process-in the
absence of reasonably clear, controlling, pre-existing rules, or an authoritative original understanding-is bound up with the intelligibility of particular standards or bodies of law and the presence or absence of a surrounding consensus. As noted above, where normative consensus exists,
seemingly open-ended legal standards may be as capable of guiding conduct and "ruling" officials as the rules celebrated by the formalist ideal
type.
Second, the adequacy of legal process to satisfy the Rule-of-Law ideal
may depend on the character of the decisionmaker involved, the scope of
the jurisdiction to be justified, and the relation of the decisionmaker and
the jurisdiction to the legal system as a whole. For example, it may be
tolerable for administrative agencies to have relatively open-ended substantive mandates, with law-like restraints on arbitrariness injected principally by requirements of form and process, 2 51 at least partly because agencies are viewed as experts,2 52 and partly because their jurisdiction is
249. See, e.g., Richard H. Fallon, Jr., What Is Republicanism and Is It Worth
Reviving?, 102 Harv. L. Rev. 1695, 1709-15 (1989); Schauer, supra note 248, at 426-38.
250. See, e.g., Michelman, supra note 79, at 82-87.
251. Significantly, requirements of form and process are generally enforceable in the
courts. See generally Richard H. Fallon, Jr., Of Legislative Courts, Administrative
Agencies, and Article 111, 101 Harv.L. Rev. 916 (1988) (discussing constitutional rights to
judicial review of agency decisions).
252. At one time, for example, champions of regulation by administrative agencies
suggested that tacit standards of professional expertise would "rule" agency
decisionmaking and that the process of expert decisionmaking should therefore be
accepted as validating its results. See James M. Landis, The Administrative Process 23-24
(1938). There continue to be areas in which constitutional doctrine relies on prevailing
professional standards to determine the content of constitutional rights. See, e.g.,
Youngberg v. Romeo, 457 U.S. 307, 319, 322-23 (1982) (considering rights of patient in a
mental institution, whose "liberty interests require the State to provide minimally adequate
1997]
RULE OF LAW
limited to the generally narrow domain of their presumptive expertise. 253
Similarly, it may be more acceptable under the Rule of Law to have a
Supreme Court with largely open-ended authority to shape and reshape
constitutional doctrine, subject to implicit conventions of argument and
reason-giving, than it would be to allow a comparable scope ofjudgment
to lower court judges, much less to cops on the beat.
In the case of both administrative agencies and the Supreme Court,
a broad mandate to make nearly all-things-considered substantive judgments, with the standards reflected in the Legal Process ideal type providing the principal restraints, may serve values internal to the Rule of Law.
Administrative agencies may play a crucial role in bringing coherence
and intelligibility to complex regulatory schemes, many of which abound
with gaps and inconsistencies.2 54 Similarly, the Supreme Court, which
sits atop the judicial system, is well situated (in principle at least) to promote coherence and intelligibility in the law and thus to provide a body
of law more effective in guiding both private and official action, including that of lower courtjudges. 255 The Supreme Court's special status and
historic functions may also bear on the public's willingness to accept its
legal processes as "jurisgenerative"-as deliberatively identifying and applying a standard of decision that commands respect as "law" in the ideal
256
sense of the term.
Third, a theory of the Rule of Law should give unapologetic emphasis to another Legal Process theme. This theme involves the role of
courts in the Rule of Law, especially to vindicate fundamental rights and
to ensure the availability of adequate remedies to keep government generally within the bounds of law.25 7 Sometimes the Rule of Law requires
judicial process and, when courts deem it legally necessary, ajudicial remedy for legal wrongs.258 It is a crucial role of courts under the Rule of
Law to hold governmental power answerable to norms of legal legitimacy.
4. The SubstantiveIdeal Type. - For at least two reasons, the substantive commitments of a theory of the Rule of Law ought to be minimized.
First, in light of the persistent fact of moral disagreement, the Rule of
or reasonable training" for employees, as determined by a qualified medical "professional,"
i.e., one competent by education, training, or experience to make such a decision).
253. See Rakoff, supra note 77, at 22 (arguing that division of power required by
separation-of-powers theory can be by subject matter as well as by function).
254. See Pierce, supra note 48, at 764.
255. See generally Peter L. Strauss, One Hundred Fifty Cases per Year: Some
Implications of the Supreme Court's Limited Resources for judicial Review of Agency
Action, 87 Colum. L. Rev. 1093 (1987) (exploring considerations affecting the Court's
capacity to play this role).
256. See supra note 180 and accompanying text.
257. See, e.g., Fallon & Meltzer, supra note 220, at 1777-91; Hart, supra note 80, at
1386-88.
258. On the relationship between rights to judicial process and rights to judicial
remedies, see generally Richard H. Fallon, Jr., Some Confusions About Due Process,
Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309 (1993).
COLUMBIA LAW REVEW
[Vol. 97:1
Law requires a considerable willingness of public officials to "enforce the
[positive] law even when it is in [their] confident opinion unjust, morally
wrong, or misguided as a matter of policy."2 59 In a morally diverse soci-
ety, law-and the regime of rights that require legal definition and enforcement to be meaningful-would be impossible if substantive, background controversies about what the law ought to be simply replicated
themselves in jurisprudential disputes about what the law is. Second, a
pervasively substantive conception of the Rule of Law would risk obliteration of the analytically and politically useful distinction between the Rule
of Law, on the one hand, and a full theory of substantive justice, on the
other. By linking the Rule of Law too closely to core positions in broader
disputes about substantive justice, a strongly substantive conception
would tend to deprive the ideal of the Rule of Law of independent analytical bite in assessing those desiderata of a legal system-including its efficacy in guiding the conduct of both private citizens and public officialsthat Rule-of-Law virtues have traditionally measured.
But a sound theory of the Rule of Law, although emphasizing formal
over substantive requirements, could not wholly exclude substantive content.26 0 It is impossible even to make sense of the ideal of the Rule of
Law without reference to values or purposes that it serves. And those
values or purposes, once specified, inevitably furnish the ground for contestable arguments that the Rule of Law could be most fully realized only
if the substantive law assumed a particular content. In extreme cases,
underlying values or purposes will even provide plausible foundations for
arguments that particular substantive content is either necessary to or incompatible with the Rule of Law.
5. PartialSummary. - As the foregoing sketch of considerations
may suggest, construction of a workable theory of the Rule of Law is a
huge and politically freighted task. 2 61 Although I have attempted no
259. Waldron, supra note 6, at 1539. At least two caveats may be in order. First, the
relevant positive law must be identified before it can be enforced, and processes of legal
interpretation may themselves have a moral dimension. See, e.g., Dworkin, supra note 76,
at 1; Strauss, supra note 81, at 882. Second, to say that public officials should have a
"considerable willingness" to enforce law that they regard as unjust is not, of course, to
suggest that such willingness should be unlimited. Cf. Dworkin, supra note 76, at 101-13
(discussingjurisprudential and moral issues facingjudges who operate in "wicked" regimes
or are charged with enforcing immoral laws).
260. The literature on the Rule of Law familiarly distinguishes between "thick" or
"substantive" conceptions, which infuse the Rule of Law with moral content, and "thin" or
"instrumental" conceptions that are purely formal. See, e.g., Hutchinson & Monahan,
supra note 12, at 101-02; Radin, supra note 7, at 783-91. Significantly, however, virtually
every self-proclaimed adherent of a "thin" conception has been charged with covertly
importing a substantive component. See, e.g., Epstein, supra note 24, at 151-54 (making
this charge against Hayek); Radin, supra note 7, at 784 n.13 (making this charge against
Raz).
261. A complicating consideration is that although a theory of the Rule of Law should
aspire to minimize the substantive content of the Rule-of-Law ideal, any attempt tojustify a
theory of the Rule of Law (whatever the theory's content) will unavoidably need to rely on
1997]
RULE OF LAW
more than to provide some preliminary notes, it should be clear why a
more integrated theory is needed. An ideal conception, as offered by the
most famous accounts of the Rule of Law, can help us to mark the degree
to which particular practices, rules, and legal regimes fall short along various dimensions. Appeals to an ideal conception can also highlight and
condemn particular shortcomings. But what we really need is a theory
that would tell us how to measure the significance of particular shortfalls,
how to weigh competing elements or desiderata of the Rule of Law, and,
generally, how to structure our practices to achieve acceptable approximations of a complex and conflicted ideal in a world of second-best.
CONCLUSION
Appeals to the Rule of Law have too often escaped serious analysis.
In probing for the presuppositions and analytical content of Rule-of-Lawbased arguments, this Article has advanced four major claims.
First, although there is a shared ideal or concept of the Rule of
Law-marked in part by such traditional desiderata as that both ordinary
citizens and public officials should be ruled by law-there is widespread
confusion and uncertainty about the ideal's precise content. Today, it is
not uncommon to hear appeals to the Rule of Law asserted in support of
mutually incompatible positions-as, for example, in debates about
whether Roe v. Wade should be overruled or affirmed. In addition, the
overall standard of judgment that is presupposed by such appeals typically remains opaque.
Second, despite the absence of articulated theories of the Rule of
Law, most appeals to the Rule of Law in American constitutional debate
have discernible kernels of meaning. Nearly all Rule-of-Law arguments
reflect assumptions about necessary, sufficient, or ideal conditions for the
Rule of Law that can be modeled by a "historicist," a "formalist," a "Legal
Process," or a "substantive" ideal type. These four ideal types embody
divergent views about the conditions that "law," in the positivist sense,
either must or ideally ought to satisfy to achieve an acceptable approximation of the Rule-of-Law ideal.
Third, although the four ideal types are heuristically useful in illuminating divergent assumptions reflected in disagreements about the Rule
of Law, all fall short of furnishing an adequate theory. For example,
substantive arguments of political morality. As I have argued throughout, the Rule of Law
is an ideal with component elements that may come into conflict. When they do, a theory
of the Rule of Law must assign priorities. It would be unrealistic, if not more literally
pointless, to insist that the assignment of priorities should not occur in light of a reasoned
consideration of logical implications and likely practical consequences. It may be relevant,
for example, that a theory assigning strong priority to the component ideals modeled by
the historicist ideal type would tend to associate the Rule-of-Law ideal with substantively
.conservative" positions-a fact that helps to account for the ardor with which
constitutional "originalism" is both championed and pilloried. See Fallon, supra note 132,
at 492.
COLUMBIA LAW REVIEW
[Vol. 97:1
none provides plausible answers to the range of Rule-of-Law issues that
arise in American constitutional interpretation. Revealingly, prominent
participants in Rule-of-Law debates commonly offer arguments that appeal to different ideal types in different contexts.
Fourth, in light of the inabilities of the respective ideal types to furnish full theories of the Rule of Law, the Rule of Law is best viewed as an
ideal comprising multiple strands or elements, which the various ideal
types help to illuminate. The four Rule-of-Law ideal types are of course
competitive with each other; indeed, they were developed to model conflict. As a result, an adequate theory of the Rule of Law could not simply
subsume them all. Significantly, however, the various ideal types characteristically aim to promote distinctive values, which do not conflict in
every case and indeed are often complementary. Besides displaying this
complementarity, a full, adequate theory of the Rule of Law would have
to order diverse and sometimes competing values (and strategies for their
protection) and specify the capacity of relative satisfaction of some of the
Rule of Law's component ideals to compensate for deficiencies with respect to others.
Finally, beyond these more general claims, I have offered some specific but preliminary thoughts on how the sometimes competing values
reflected in the various ideal types might be weighed and ordered within
an architectonic theory.
Amid the diversity of my arguments and aspirations lies a central
message: Invocations of the Rule of Law are sufficiently meaningful to
deserve attention, but today are typically too vague and conclusory to dispel lingering puzzlement. We should strive to do better.
Document related concepts

Legal anthropology wikipedia, lookup

Jurisprudence wikipedia, lookup

Law without the state wikipedia, lookup