Good Vibrations

In November​ last year, the UK government’s signature policy on asylum seekers was judged unlawful by the Supreme Court. At various other points over the last twelve months, Israel’s Supreme Court declared the Netanyahu government’s judicial reforms invalid; the US Supreme Court was asked (but declined) to disqualify Donald Trump from standing for president; and the International Court of Justice was asked (but declined) to order Israel to suspend its military operations in Gaza. These events attest to the political vitality of law, courts and the rule of law. It is an opportune time for Jeremy Waldron, one of the world’s leading political and legal philosophers, to publish Thoughtfulness and the Rule of Law. The book is not Waldron’s attempt to address the issues of the day; it is largely composed of essays already published elsewhere, and its concerns are primarily philosophical. But it does provide a chance to consider the proper way to frame contemporary debates about politics and the law.

The legal scholar George Fletcher, writing about political changes in Eastern Europe after the fall of Communism, called the rule of law the most puzzling ‘of all the dreams that drive men and women into the streets’. There were huge protests in Israel last year over Netanyahu’s judicial reforms, and there are examples of similar protests going back centuries, so it is striking that the book which launched most modern scholarly discussions of the rule of law, Lon Fuller’s The Morality of Law, appeared as recently as 1964. Fuller developed his account through the parable of a hapless ruler, Rex. Rex seeks to replace the old order with a new system and decides to do this by resolving controversies as they arise. This is no good: the people have no idea what principles Rex is being guided by. So Rex agrees to lay down some general rules. But, having done so, he keeps them all secret. That’s no good either. The parable goes on until Fuller has formulated eight requirements which form the core of most modern accounts of the rule of law. If a regime is to comply with the rule of law, he argued, its laws should be general, publicly promulgated, non-retroactive, sufficiently clear, consistent, possible to comply with, and relatively stable across time. Finally, and, importantly, officials’ actions should also be congruent with the law.

Waldron has a lot of time for Fuller, but thinks that he and other scholars since have missed something important. Their philosophical accounts of the rule of law cannot, he believes, explain the political force of the ideal. His account is underpinned by two core concerns: to stress the value of legal procedures to the rule of law, and to insist that the rule of law is connected to human dignity. I think he is right about the first, but I am not so sure about the second.

Waldron develops these themes through discussion of particular legal and scholarly concepts – stare decisis, for example, according to which legal decisions generate binding rules until those rules are set aside. Even those who thought that Roe v. Wade was wrongly decided in 1973 accepted that everyone, even the US Supreme Court, was bound by its rule. That’s why critics of Roe campaigned so intently to have the rule set aside: it couldn’t simply be ignored. The Supreme Court was legally empowered to set the rule aside – indeed it was the only court so empowered – and did so in June 2022 in Dobbs v. Jackson Women’s Health Organisation. The debate over Dobbs centres on whether the court was justified in overturning Roe, and anyone thinking seriously about that has to think seriously about the force of stare decisis. One of Waldron’s questions is what the ideal of the rule of law has to say about such matters.

The ideal of the rule of law did not, of course, begin with Fuller. Aristotle referred in his Politics to forms of democracy where ‘the law rules,’ and distinguished them from communities where a ‘popular leader’ is in charge. This is a powerful rhetorical contrast but, as Waldron points out, it is also a dubious one: ‘Laws are made by men, interpreted by men, and enacted by men … Law can no more rule us by itself, without human agency, than a cannon can dominate a city without an ironmonger to cast it and an artilleryman to load, point and fire it.’

Since laws are not self-executing, one concern is that the ideal of the rule of law becomes the rule of those empowered to enforce the law. This worry – usually attributed to Thomas Hobbes, but it too can be traced back at least as far as Aristotle – is often expressed in relation to the rule of judges. But it is really a worry about rule by officials. They might be judges, but they could also be police officers, administrators and so on. Wherever people exercise power in the name of the state, there is a worry that those people are the ones doing the ruling, not the law. This is why Fuller was concerned that there be congruence between officials’ actions and the law: the rule of law doesn’t require that law rules ‘by itself’, it requires that law controls what officials do. It also (and therefore) requires that, as Waldron puts it, ‘people have access to independent courts to settle their disputes and to hold the government accountable.’ If there is no such access – or access is difficult in practice, through delay or cost – then, since law cannot rule by itself, the law will not rule.

Consider the Ministry of Justice’s report from December 2023 that the average time for a ‘small’ claim (i.e. a claim for less than £10,000) to come to trial is over a year. That is almost twenty weeks longer than the same process took in 2019. A claim can be steadfastly denied right up until the moment it is suddenly admitted on the eve of trial; there is almost never any sanction for such conduct. The unscrupulous can therefore delay the day of reckoning, or avoid it altogether if people give up or are bought off along the way. This is a rule of law concern because facts other than the legally relevant ones – who is legally obliged to whom, and for how much – are governing the distribution of goods.

A commitment to the rule of law should therefore bring with it a commitment to fund such legal procedures, and to reform them so that they adequately serve their purpose. But policymakers in the UK (including, surprisingly, judges), worried about the cost of putting the system right, have chosen a different direction. From the early 1990s, a movement for ‘alternative’ dispute resolution grew, with the intention of channelling cases away from the legal system. One favoured method was mediation. Mediation is not a solution that seeks to resolve cases justly according to law; it tries to get parties to negotiate a compromise. As Hazel Genn put it in Judging Civil Justice (2009), the outcome of mediation ‘is not about just settlement, it is just about settlement.’ The success of mediation as an institution depends in part on injustice in the legal system (and resulting deficiencies in the rule of law): one of the most powerful weapons in the mediator’s hands is the cost and stress of legal dispute resolution.

Last year, the government decreed that all claims valued at less than £10,000 must go through mediation as ‘part of the litigation journey’. The Court of Appeal also decided, reversing an older decision, that parties who want to litigate can be forced to mediate, ‘provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing’. That exception, properly interpreted, would swallow the rule: a right to proceed to a judicial hearing is impaired if the litigant is forced to mediate. But that isn’t the interpretation the court wishes us to make.

While these changes might save money, they make things worse from the point of view of the rule of law. A recent shift in language aims to mask this trade-off. Policymakers have dropped the word ‘alternative’; they now refer only to ‘dispute resolution’, with mediation and justice according to law being two of several possible ways of resolving a dispute. This wrongly places mediation (and its ilk) on a par with resolution according to law. We would do better to acknowledge that this is a compromise between the ideal of the rule of law and a desire to save public money.

Scholars​ often analyse the ideal of the rule of law by formulating what Waldron calls a ‘laundry list of principles’. Fuller’s list is the most famous. Joseph Raz, John Finnis and Tom Bingham follow Fuller in proposing eight principles. Others have been more parsimonious: A.V. Dicey had three principles; John Rawls had four. Waldron pokes fun at this approach – ‘Robert Summers holds the record, I think, with eighteen rule-of-law principles’ – but that doesn’t stop him drawing up a list of his own. As well as access to independent courts, he says, the rule of law requires ‘people in positions of state authority to exercise their power within a constraining framework of public norms (laws) rather than on the basis of their own preferences or ideology. It requires also that the laws be the same for all – that they be general and principled – and that they be accessible to the people in a clear, public, stable and prospective form.’ That’s either seven or ten principles, depending on how you count them. They all sound like good things. Some, though, are a bit slippery. There is something powerful about the idea that the law should be ‘the same for all’, yet the law can make justifiably different demands of different people.

Lists like these, if they are to be coherent, must be derived from an underlying value – the value that underpins the rule of law. Otherwise they would be ragbags, emanations of different (possibly conflicting) ideals. Waldron doesn’t attempt a systematic discussion of this issue; that is not his quarry. But he joins a long tradition when he writes that the ideal is ‘to stand against any arbitrariness’. In discussions of the rule of law, arbitrariness is usually associated with whim, indifference to the demands of reason. Since any wrongful action can be characterised as one that is indifferent to reason – if an act is wrongful it must be contrary to the balance of reasons – we have to pin the value down a bit more to avoid the risk of ragbaggery. A key question is: arbitrariness in the exercise of what?

Laws constitute and distribute powers, powers that can do untold harms; and the rule of law can be seen as a method of controlling the arbitrary exercise of those powers. Some have argued, for that reason, that the rule of law is an ideal to protect against the dangers created by the law itself. On this view, the rule of law makes no claim about what domains should be subjected to legal control; it says only that when domains are subject to legal control, the control should be exercised properly. This is, as Waldron says, too cramped. He claims that the rule of law aims ‘to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular’. That seems to me correct. The rule of law is, in the Aristotelian tradition, an ideal for a form of government; it loses something valuable if it is understood only as a way of controlling legal power.

I have been presenting matters rather as if the thing unifying the rule of law must be a single value. That is contentious, and perhaps also a little austere, but as the grounding values are multiplied, it does become less plausible to cast the rule of law as a distinctive ideal. Waldron writes that the rule of law is ‘but one star in a constellation of ideals’, a constellation which also includes respect for human rights and democracy. These ideals should be kept separate. The rule of law is valuable in part because it identifies a distinct concern we might have about political arrangements – distinct, that is, from the values underpinning, say, a concern for human rights or democracy. Despite this, there is ‘a constant temptation to read too much into the rule of law, as though it were supposed to be the sum total of our political philosophy, or as though failure to acknowledge that it is the sum of all good things might drive us to the position that it is no good at all’. While philosophers seem able to resist this temptation, lawyers often succumb. Tom Bingham, a former senior law lord, gave a famous – and infamously expansive – account of the rule of law in a book from 2010, claiming that it included, for example, adequate protection of human rights. I know of no philosopher who endorses that account.*

The expansive approach remains influential in legal and political discourse. Consider, for example, criticisms of the Sunak government’s policy of sending asylum seekers to Rwanda for determination (by the Rwandan authorities) of their claims. If their claims were successful, they were to be granted asylum in Rwanda, not the UK. The Supreme Court held that this policy was unlawful because it was not compatible with the principle of non-refoulement, which proscribes states from returning refugees to a country where their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.

The Sunak government sought to sidestep the Supreme Court’s ruling by passing the Safety of Rwanda (Asylum and Immigration) Act, Clause 2 of which states: ‘Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.’ There are many things one could say about this, but the most straightforward objection is that deeming Rwanda to be safe does not make it so. Although the Sunak government argued that the facts had changed since the Supreme Court’s decision, they clearly didn’t really believe it – that’s why they passed Clause 2. And, even if they did believe it, the point of Clause 2 was to forestall any objections to the law that might arise as the facts changed. If another civil war were to break out in Rwanda, the logic of the law went, courts must ignore it.

The law would have resulted in refugees being returned to countries where their life or freedom was at risk (and thereby place the UK in breach of international law). That is objectionable, but not objectionable on the grounds of the rule of law, at least insofar as the ideal is normally understood by philosophers. The law in question is clear, prospective, general and so on. The problem people have with it is not that they don’t know what it means or what it requires. They know exactly what it requires – that is why their objections to it are so deeply held.

Given the Starmer government’s abandonment of the Rwanda policy, all this is now largely a matter of political history. But we would do well to recall some of the objections made to the policy before it was abandoned. One such objection, voiced in both Houses of Parliament, was that it was contrary to the rule of law. Baroness D’Souza claimed that the ‘key elements’ of the rule of law are ‘abiding by international law, equality before the law, respect for fundamental human rights and guaranteeing access to the courts’. This, like Bingham’s book, reveals a disconnect between philosophers’ use of the concept and its use by lawyers and laypersons (including legislators): only the last of D’Souza’s elements is key for philosophers.

Waldron is justifiably concerned by this disconnect, and responds in two ways. First, he notes that the rule of law is often misused by non-philosophers as the servant of ideology. A number of people on the political right, for example, claim that the rule of law requires certain kinds of property or contract laws, and their diligent enforcement by courts. There are even ‘rule of law indexes’ to measure such things. The economist Robert Barro has described these as a means to ‘gauge the attractiveness of a country’s investment climate’. Since the rule of law is concerned with power, not economic efficiency, this gives the game away: the rule of law does not privilege certain kinds of rights (contract, property) over others (non-exploitation, wrongful imprisonment). But the ideologue’s thought, as put by Waldron, is that ‘since everyone happens to be in favour of the rule of law at the moment, we might as well use the good vibrations associated with that phrase’ to achieve some wider agenda. This diagnosis sounds plausible, but it doesn’t explain why people – especially lawyers – so often appeal to the rule of law rather than to any other grand political ideal. Why not democracy, or human rights? It isn’t enough to say that good vibrations are associated with the rule of law; democracy has pretty good vibrations, too, and it isn’t hard to come up with examples of its misuse in the service of ideology.

Legal disagreement​ is supposed to be something apart from first-order moral disagreement; that’s why lawyers tend to be chary of asserting pure normative principles in their arguments. That caution is, however, strikingly absent when it comes to the rule of law; lawyers often seem to think they are experts on the topic. The ideal can for that reason be used to do some practical work. In 2017, for example, Lord Reed (now the president of the Supreme Court) invoked the rule of law to explain why the high fees that the government had set to deter employees from bringing claims to employment tribunals were unlawful. It is hard to find examples of legal decisions in which other political ideals have been invoked, though one such is the second Miller decision, in 2019, where the Supreme Court held that Boris Johnson’s prorogation of Parliament was unlawful. In that case, Baroness Hale and Lord Reed referred to the fact that the UK has a ‘representative democracy’, and held the prorogation unlawful because it frustrated ‘the constitutional role of Parliament in holding the government to account’. That decision is unique, and was uniquely divisive; the tribunal fees decision, by contrast, received almost no adverse comment.

This is, in part, merely a development of Waldron’s point about good vibrations: the rule of law can be useful in practice because courts are willing to invoke it to decide cases. But it also suggests a reason the rule of law is the concept of choice. Because lawyers happen to be more comfortable making grand claims about it than they are about other normative ideals, it is unsurprising that the rule of law becomes the vessel into which they pour other normative principles.

Waldron’s second response to the disconnect between philosophers’ concept of the rule of law and everyone else’s is to suggest that philosophers have missed some important points about the content of the rule of law. He reminds us that the rule of law is often a rallying cry for political claims: the protests in Pakistan in 2007-9 for the restoration of an independent judiciary, for example, or calls in the United States to shine light on the legal black hole that is Guantánamo Bay. Philosophers’ accounts of the rule of law, Waldron claims, have historically been unable to explain the force of these cries because their analyses have not taken account of the political importance of legal procedures.

Fuller stressed certain features that laws must have if they are to comply with the rule of law: they should be clear, prospective and so on. Law governs by rules, so its norms must be rule-like. But, Waldron objects, ‘the rule of law is not just about the formal characteristics of the norms that we apply; it is about the processes by which they are applied, and those processes involve not just an official with a power of decision, but a whole elaborate structure in which evidence is presented and tested and legal arguments are made.’ I agree. But wouldn’t Fuller, too? He said that there should be congruence between officials’ actions and the law. And congruence can be achieved, you might think, only if the law includes proper procedures.

Quite so, says Waldron. But, he adds, the law’s processes are valuable intrinsically as well as instrumentally. There can be value in legal procedures even if they do not contribute towards securing compliance with the law. ‘One ought,’ he writes, ‘to be able to do one’s time, take one’s licks, while remaining upright and self-possessed. Even going to one’s own execution is something that a human can do, [which means] there is an implicit requirement that [the death penalty] be administered in a way that enables the persons to whom it is applied to function as human beings up until the point at which their lives are extinguished.’ Waldron’s claim, then, is that the inherent worth and dignity of individuals is itself a ground of the rule of law, and that the rule of law therefore requires that individuals be treated in ways that respect their worth and dignity.

Philosophers have failed to capture the way the rule of law is invoked in ordinary political discourse in part because of their insistence that the concept picks out a defined set of features – and one way to understand the popular usage of the rule of law is that it invokes a broader or richer concept. If Waldron is right, an important pay-off is that the gap between philosophy and the world might be closed. But I wonder. Waldron recalls a vivid image of Guantánamo Bay detainees being ‘carried to and fro in wheelbarrows like scarecrows’. Images from Gaza in December 2023 showed Palestinian men, detained by Israeli forces, stripped to their underwear. One objection is to the brute treatment of the detainees; another is to the parading of them in a state of degradation. These would seem to be concerns rooted in the individuals’ dignity. Is either a rule of law concern? The core objection is that individuals’ moral rights are violated – and I thought that the point of distinguishing the stars in our political constellation was precisely to say that such objections are separate from those based on the rule of law.

Here is another, more friendly, concern with Waldron’s account. It is easy to applaud a call for the law to treat people with dignity. But there are complications. An execution is abhorrent even if the condemned walks to it upright. It is more abhorrent still if they are so broken that they are – as sometimes they are – unable to walk to the noose or the chair, and must be carried or dragged instead. Clothing this horror in a dignified garb does not change the essence of the event. Nor should it mask it. Legal process can be painful and it can be violent. It can be so even if it adheres scrupulously to the rule of law. While the ideal may sometimes seem our best hope for guidance through troubled times, it is, as Waldron says, not the only star in our constellation of ideals.