case study of rule of law

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Article Contents

1. introduction, 2. the possibility of the null model, 3. the rule of law, 4. a fresh start, 5. two modes of precedential reasoning, 6. evaluating the modes, 7. conclusion, precedent and the rule of law.

Somerville College, University of Oxford. Email: [email protected] . I am very grateful to Timothy Endicott, Katharina Stevens, Joseph Raz, Crescente Molina, Donald Bello, Joshua Pike, Hafsteinn Dan Kristjánsson, Benjamin Shoemaker, Nick Grant, Manuel González, Michele Boggiani, Tom Kohavi, Gehan Gunatilleke, Mikolaj Barczentewicz, Li-kung Chen and two anonymous OJLS reviewers for comments on previous drafts of this article. An earlier version of the article was presented to the Edinburgh Legal Theory Discussion Group. Many thanks to the participants in that seminar, in particular to Claudio Michelon, Joaquín Reyes, Maggie O’Brien, Euan Macdonald, David Cabrelli, Amalia Amaya, María Ignacia Besomi, JP Fassnidge, George Dick and Ismael Martínez.

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Sebastian Lewis, Precedent and the Rule of Law, Oxford Journal of Legal Studies , Volume 41, Issue 4, Winter 2021, Pages 873–898, https://doi.org/10.1093/ojls/gqab007

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Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal and one which is not. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of the rule of law, and in some cases this reason may be reinforced in the form of an obligation. Secondly, depending on whether courts have a reason or an obligation to follow precedent, two modes of precedential reasoning may be identified. The article explains them in detail. The modes, together with the considerations that are reasons in favour of them or against them, provide a valuable philosophical foundation of precedent-following in law.

Many of our normative practices are influenced by the force that past decisions exert on similar, future situations, in favour of reaching the same result as before. We normally call these past decisions precedents , and when it comes to the law we often say that precedents influence the decisions of courts when relevantly similar disputes arise.

But the practice of following precedent is not something we should take for granted. To begin with, one can imagine legal systems where courts do not pay attention, in a normatively significant way, to the ways in which similar disputes have been decided in the past. Similarly, there may be legal systems that prohibit courts from relying on precedents, at least for the purpose of using them as a legal basis for reaching justified decisions. On the other hand, it is not clear whether following precedent has value in its own right, or whether we follow precedent in order to advance other values. Finally, precedents can influence the decisions of later courts in various ways. In the civil law tradition, precedents are often used in order to tip the balance in favour of particular outcomes, but are also used as a means to illustrate how a legal point has been dealt with before. In the common law, by contrast, precedents typically play a more decisive role. In many cases, precedents are authoritative sources of law, in the sense that if the facts in a later case are legally the same as those of a precedent, the later court is often required to deliver the same decision.

My aim is to explain the practice of following precedent in law and provide criteria for evaluating its value. Since there is significant literature on the topic, 1 I will do this by defending two connected and novel claims. The first argument is that, contrary to what may happen in practice, whenever a precedent-governed dispute arises, the later court always has a reason to decide that dispute by following precedent. This reason is grounded on the idea that, by doing so, a legal system has a distinctive way to advance at least the following values: maintaining legal stability, allowing people to rely on reasonable expectations and providing equality in the judicial application of the law. 2 I will call these values respectively ‘stability’, ‘reliability’ and ‘equality’. Since I take them to be part and parcel of the rule of law ideal, I will refer to them collectively as ‘the rule of law’. 3 I argue that the principles of judicial transparency and good government strongly militate in favour of courts having to give reasons why they will not follow relevant precedent.

The reason in favour of following precedent is only a minimum requirement of the rule of law. On top of this requirement, a legal system may reinforce its commitment to this ideal by requiring courts to treat the same reason as an obligation . Accordingly, the second claim is that we can identify two modes of precedential reasoning precisely by whether courts have a reason or an obligation to decide precedent-governed disputes by following precedent. Consistent with familiar terminology, I will call them ‘persuasive’ and ‘authoritative’. 4 These modes are not necessarily depictions of what particular courts do, but they provide us with a valuable philosophical foundation for assessing whether what these courts do is desirable or not.

The article is structured as follows. In section 2, I argue that the practice of following precedent should not be taken for granted. To do this, I posit what I will call the ‘null model’, under which courts are authorised to decide precedent-governed disputes without paying attention, in a normatively significant way, to relevant precedent. By showing that the null model is both conceptually possible and we may find arguments supporting it, this offers a useful baseline against which precedent-following can better be assessed. In section 3, I show the extent to which the null model fails to live up to the rule of law. Section 4 argues that one distinctive way to advance the rule of law is by requiring courts to always put in the balance the reason in favour of following precedent. I will argue that, based on a legal system’s commitment to the rule of law, this reason is both non-contingent and content-independent. By showing their main features and differences, section 5 articulates the persuasive and authoritative modes of precedential reasoning. Finally, section 6 offers an assessment of how both modes deal with two evaluative questions: (i) How does each mode advance the rule of law? and (ii) How does each mode avoid replicating substantively incorrect decisions? The purpose of this section is to present some of the tools that are vital for determining whether there is a mode that should be preferred, and for eventually criticising a specific practice of precedent held by courts.

With respect to terminology, I will speak of the ‘earlier court’ to refer to the court that decided a case in the past that is relevantly similar to the one being decided by the ‘later court’. I will also ignore alternative ways of speaking of precedents, such as the erga omnes force of judicial decisions, 5 the constant jurisprudence of courts and the common law. Here, a precedent should be taken to mean a past decision or past case that is relevantly similar to the case at hand. Finally, I will use the expressions ‘relevantly similar’ and ‘legally the same’ as equivalents. The latter stresses the idea that the similarities between the two cases should be relevant in the eyes of the law. 6

There is one caveat to bear in mind. My account, like that of many others, 7 does not depend on a strict separation between vertical and horizontal stare decisis . 8 As I will explain, I think this distinction is useful to capture those specific precedents that, for various considerations, certain courts must follow. But that question is secondary to determining whether later courts always have a reason to follow precedent—the question that motivates this article.

Justice and courts have always had a complex relationship. John Gardner wrote that ‘judges should first and foremost administer justice’, 9 and before him HLA Hart held that we naturally think of justice as being administered according to law. 10 This complex relation has contributed to the way we have historically called courts, shifting between courts of justice and courts of law . 11 Today it is not controversial to say that, when courts decide disputes, and thereby attempt to deliver justice, they do so by applying the law to the case at hand.

But what is the specific law that would allow judges to reach legally justified decisions? The answer to this question inevitably varies across different legal systems, as it depends on the sources of law in the particular legal system under consideration. Legislation is typically a source of law, meaning judges can reach legally justified decisions by applying statutory law. But things are more complex when it comes to ‘case law’. In the common law, judicial decisions are generally given legal status, 12 meaning courts can reach legally justified decisions by applying case law to the dispute at hand.

The same cannot be said, or at least not as simply, 13 with respect to various countries in the civil law tradition. In many of these countries, it is generally the case that judicial decisions are authoritative with respect to the parties to the dispute only , and this effect is commonly known as the ‘relative force’ of judicial decisions. 14 This means, first, that as a general rule, 15 only the parties to the dispute may benefit from the authoritativeness of the decision—for example, to demand conformity with its terms. (To this extent, the relative force of judicial decisions is also present in the common law.) But, secondly, if a relevantly similar dispute arises between other parties in the future, the later court—in the civil law—may be prevented from reaching a legally justified decision solely by following precedent. As Eva Steiner writes concerning French law: ‘Explicit reference by a court to its own jurisprudence when giving a decision and, more generally, citation of previous cases is not allowed when these are meant to serve as a legal basis for the court’s decision.’ 16

Of course, French law does not exhaust the civil law tradition. The point is that, often, the relative force of judicial decisions entails that precedents are not generally given legal status. As Merryman and Pérez-Perdomo observe: ‘[in the civil law] prior judicial decisions are not “law”’. 17 Therefore, in order to reach decisions justified by law, civil law courts usually rely on undisputed legal sources. Legislation, again, presents itself as a good example of an undisputed source of law, but in some jurisdictions the constitution also serves as a legal basis—as well as ratified international treaties. For this reason, if a court relies on a legal source, but in doing so it ignores or contravenes relevant precedent, the decision may nonetheless be legally justified. 18

But if precedents may not provide justificatory basis whatsoever for reaching legally justified decisions, what normative role do they play? Drawing from a comparative analysis including both civil law and common law jurisdictions, Aleksander Peczenik concluded that precedents typically perform the following roles: (i) they bind formally; (ii) they have normative force but do not bind formally; (iii) they are neither formally binding nor have any normative force, but provide ‘further support’ (see note 19); and (iv) they serve to illustrate points of law. 19 Peczenik’s conclusion makes room for the proposition that the existence of a relevant precedent may make no normative difference in the decision of a later court. This conclusion is supported by the fact that, as we saw before, many civil law courts may reach legally justified decisions even if they have contravened or otherwise ignored relevant precedent.

It is true that the civil law is changing towards giving precedents a more decisive role (see note 13). That has been because of the long and arduous work of courts, the legal community and the legislatures. But this change reveals a point of departure: the possibility that the existence of a precedent may make no normative difference in the decision of a later court. This possibility provides the conceptual basis for thinking that a particular model of precedent may exist. I will call it the ‘null model’, because for a later court the existence of a precedent regulating the issue at hand makes no normative difference to the vital question of how such an issue should be decided. This type of case should be distinguished from those in which the later court offers reasons for not following relevant precedent. In this situation, the precedent makes a normative difference, since the later court has to meet a justificatory burden for failing to conform to it. The null model, by contrast, seeks to capture those situations in which the existence of a relevant precedent is another non-normative fact of the world: the precedent does not even tip the balance of reasons in favour of reaching the same outcome as before. These could be, for instance, cases where the later court knows about the existence of a precedent, but it does not show why the precedent will not be followed.

Various reasons may support having the null model. With some adjustments, an advocate of this model could rely on the following. First, legal systems have, all else being equal, an interest in preventing judges from making creative innovations in the law. In order to keep the law pure, the influence of judicial decisions on future cases should be limited as much as possible, and the null model would be one way of doing this. Secondly, judges have a duty to treat parties impartially and objectively. Since the practice of following precedent is normally affected by factors external to the law, such as the prestige of the earlier court, these factors may introduce bias in the court’s decision. In order to avoid this, judges should not follow precedent. Finally, the law should have a democratic character. Precedents are often given legal status, but they are not created by a democratic process. One way to avoid this non-democratic upshot is by giving judicial decisions relative force only, thus restricting the influence of precedents on later courts.

The possibility of the null model is valuable for two reasons. It reminds us, first, that the values brought by judicial conformity to precedent, soon to be studied, should not be taken for granted. The null model, as such, is a way to appreciate these values by conceiving of a legal system where the same practice does not exist. Secondly, the null model confronts us with the following challenge. If nothing in law’s nature prevents courts from lawfully adjudicating disputes under the null model, 20 then why doesn’t any legal system have it—at least officially? Put differently, what causes many later courts to pay attention, in a normatively significant way, to the ways in which earlier courts have decided relevantly similar cases?

Many ideas are usually associated with the expression ‘the rule of law’. It is often said, for example, that the rule of law is first and foremost a requirement of good governance. People exercising positions of political authority should be subject to mandatory rules aiming to minimise the potential for arbitrary government and even tyranny. 21

The rule of law is also identified with a set of formal demands that seek to allow individuals to better anticipate what the law may require from them. Accordingly, the standards by which the law will guide conduct should be clear, public, general, prospective and stable, so that people may know in advance how to plan their lives under the law. 22

Similarly, the rule of law requires minimum procedural conditions that courts should observe when they administer justice, in order to ensure parties a ‘fair hearing’. 23

Finally, the rule of law is also associated with substantive conditions for the existence of the law. Some say, for example, that the law should meet basic demands of fundamental rights. 24 Others claim that the rule of law should go one step further and secure basic social rights. 25

These various ways of conceiving of the rule of law have led many scholars to distinguish between ‘formal’ and ‘substantive’ versions of the rule of law. 26 As Brian Tamanaha notes, ‘formal theories focus on the proper sources and form of legality, while substantive theories also include requirements about the content of the law’. 27 However, as Tamanaha also writes, though the distinction is informative, it should not be taken at face value. The reason is that ‘formal versions have substantive implications and the substantive versions incorporate formal requirements’. 28 Other scholars have shared similar worries. 29

Importantly, for the purposes of this paper, I will adopt a modest understanding of the rule of law—one usually associated with formal versions. The reason is not because I reject substantive versions of the rule of law—a point we need not settle here. The point, rather, is that this modest version is sufficient to ground precedential constraint, while avoiding the profound disagreement entailed by many of the substantive versions. In effect, the more substantive one’s conception of the rule of law becomes, the more disagreement it seems to produce. 30 On the other hand, ‘All substantive versions of the rule of law incorporate elements of the formal rule of law’. 31 In sum, certain formal demands are necessary conditions of the rule of law, while also being sufficient to ground precedential constraint. This is the moderate strategy I shall pursue. 32

In particular, there are three rule-of-law values the advancement of which gives us reasons to reject the null model, and prefer instead one of the modes that I will propose. 33 These are the values of stability, reliability and equality in the application of the law. 34 I will briefly explain these values, and will then show the extent to which the null model runs counter to them.

A. Stability and Reliability

Stability is a state of affairs in which the content of the law of one country is settled over a considerable amount of time. The proviso of time is important because it would not seem plausible to think that a legal system has achieved stability in relation to a specific matter if the content of the law on that matter changes too frequently. Achieving stability is a matter of degree, for there is no threshold indicating how much time is required for the content of the law to become stable. This depends on many factors, such as the area under examination, where in some cases one specific change in the content of the law may have a much more systemic impact than changes in other, less sensitive areas.

It is not clear whether stability has value in its own right. 35 It seems that we value stability not for the sake of stability, but because it is instrumental to the realisation of other values, in particular one which directly bears on the decisions we make in our daily lives: the value of reliability. It is valuable that people know what the content of the law is, what the law commands, allows and forbids, for when people have this knowledge, they can rely on it as valuable information to adopt decisions that will impact their lives. In many ways, people can shape their lives, anticipate events and be psychologically confident thanks to the structural boundaries offered by the law. But in order for the law to allow this, the law cannot suffer changes too frequently. The law, in other words, needs to be stable. Stability and reliability are thus two sides of the same coin: what may advance the former may also promote the latter, and what may undermine the former may also affect the latter.

Since stability and reliability are intimately connected, I will focus on reliability to argue against the null model. Recall that under the null model the fact that a precedent exists—regulating the matter at hand—does not even tip the balance of reasons in favour of reaching the same decision. True, if the case is governed by statute and the application of the relevant norm is straightforward enough, then people have a reason to believe that such a case should be decided in the way prescribed by the statute (assuming, of course, that courts have a duty to give effect to the content of statutes). But where the application of the relevant norm entails a ‘hard case’, this reason for belief might become weaker, or even disappear, if the court adjudicates under the null model.

Take cases of statutory vagueness, or where there are various candidates for a correct interpretation of the statute, or where applying the norm would conflict with a moral consideration. For our purposes, a hard case is one where there are good reasons to believe that the court may arrive at different conclusions concerning the statute’s application. All these outcomes, further, are justified by law. In a hard case, the null model entails a probabilistic lottery. If there are two correct ways of deciding the case, but the fact that one of them is supported by precedent does not count in the balance, then ceteris paribus parties have a 50% chance of anticipating the court’s decision rightly. This number decreases when the amount of possible justified scenarios increases. If, say, there are four possible correct answers, the chances of parties getting things right is 25%, again ceteris paribus .

Provided that there are alternative modes of adjudicating precedent-governed disputes that can offer more reliability to parties, this probabilistic lottery runs counter to the rule of law. As I will argue, one of these ways is by making it the case that courts always have a reason to decide precedent-governed disputes by following precedent. The existence of this reason increases the degree of reliability given to parties vis-à-vis the null model. Parties can rely before litigation on the fact that courts always have a reason to decide disputes in conformity with relevant precedent. But since this reason does not exist in the null model, parties are left to whatever assessment of the correct scenarios the court deciding the case makes.

B. Equality

Equality is a contested notion, and some have shown scepticism about whether there is something distinctive in equality other than the generality presupposed in every norm-application. 36 But the existence of a norm is one thing; its application is another. Thus, for reasons external to the norm itself, there can be cases that fall within the norm’s scope, but which may receive a different treatment—despite the fact that in virtue of the norm’s generality they should not. 37

This difference of treatment can be explained by the discretionary element entailed in the application of a norm. To begin with, applying a norm requires determining, and eventually justifying, whether certain facts of the world fall within the norm’s scope. This process is generally known as subsumption , and though the margin for discretion might be reduced, adjudication will often require sensible judgment. It is here where judges come into play. Judges are trusted with the power to determine, inter alia , whether facts before them can count as instances of the norm’s material scope of application. If they count, then we often say that judges have an obligation, though not necessarily a conclusive one, to decide the case according to the result provided by the norm. 38

Subsumption can be a straightforward or complex process, depending on whether it is clear or disputed that the facts of the case fall within the norm’s scope. When it is clear, we can think of the case, at least in respect to subsumption, as an easy one. But subsumption does not exhaust the adjudicatory work of judges: they still have to determine whether the norm should be applied all things considered. As Kenneth Winston observes, judges may ‘refrain from applying a law to a case that it clearly covers, for example, on the ground that there are features to the case that were not anticipated’. 39 Conversely, complexity in subsuming facts is a reason for the case to be seen as a hard one.

As it relates to precedent, equality requires courts to limit the menu of possible correct answers that, absent relevantly similar cases decided before, they would otherwise have. This means that, if the earlier court reached a decision that was initially justified, the later court is prevented from reaching a different decision without justification. For example, suppose it was an open question for an earlier court whether to treat a particular object as an instance of the statutory term ‘wheelchair’. In a relevantly similar case, a later court would thus not be able to say, at least not without justification, that the same object is not a wheelchair had the earlier court decided that it was.

But equality, in this sense, can also play a role in the equitable dispensation of legal requirements—assuming, of course, that courts have the corresponding power. If, on grounds of equity, an earlier court had made a particular exception in favour of a party, then the later court is prevented from denying the same exception without justification. 40

The null model authorises courts precisely to dispense with this justificatory requirement—namely, of having to argue why they will depart from the decision of the earlier court. The final decision, which affects equality but does not offer a justification, is legally justified. Contrary to this state of affairs, as I have argued, equality requires later courts to give reasons why they will depart from past decisions. I have considered the examples of legal interpretation and equitable dispensation, but these do not exhaust the adjudicatory work of judges.

In sum, the null model can be lawful, and supported by various reasons, but there are important reasons as well for thinking that it fails to live up to the rule of law. And the rule of law is an ideal worth pursuing. It has been said, for example, that the rule of law is ‘law’s own virtue, respect for which is needed for the law to have any other virtue’. 41 Others think of it as ‘the specific virtue of legal systems’. 42 Still others see it as ‘the morality that makes law possible’. 43 These various ways to think about the rule of law suggest that a legal system has important reasons to live up to this ideal, including stability, reliability and equality. These reasons might not outweigh all competing values, as some scholars have rightly noted, 44 but, all else being equal, they do recommend a commitment to the rule of law. In virtue of this commitment, departures from the rule of law, as Tom Bingham argued, should have a ‘clear justification’. 45

In the next section, I will lay out the structure for articulating two modes of precedential reasoning that, unlike the null model, advance the rule of law.

Having argued against the null model, it is time to propose a fresh start. Unlike before, where I proceeded bottom-up, 46 this time I will proceed top-down. I will start from the rule of law and then articulate two modes of precedential reasoning that are consistent with this ideal.

The argument in this section is as follows. The first subsection argues that one distinctive way to advance the rule of law is by requiring courts to always decide precedent-governed disputes by following precedent. Notice that the claim here is a modest one. I will not be arguing that courts should always have an obligation to follow precedent, but only a pro tanto and non-contingent reason. Precisely because of this caveat, the claim is, I think, novel. What is needed, in order to establish the non-contingency of the reason in favour of following precedent, is the normative backup of a positive second-order reason. 47 In the second subsection, I will argue that a legal system’s commitment to the rule of law can do this work. The upshot is that the non-contingent reason to follow precedent is a minimum requirement of the rule of law.

A. Advancing the Rule of Law

The task before us is to show that the reason to follow precedent is a valuable means to advance the rule of law. I do not think, based on the relevant literature, 48 that this claim is controversial. But it is important not to take it for granted—observing also, as others have done, 49 that sometimes following precedent may not necessarily advance the rule of law. This is why a ceteris paribus clause is needed: all else being equal, following precedent is a distinctive means towards a valuable end.

Consider stability and reliability. Both values demand that the content of the law remain stable over time, so that people can rely on it to adopt decisions. Since stability is instrumental to reliability, think of the problem in the following way. If the precedent and present cases are legally the same, but they receive different treatment, can people form reliable expectations concerning the ways in which these types of cases will be decided? Possibly yes, if such a decision is treated as an exception. 50 But where there is a systematic and widespread practice of giving a different treatment to two cases that are legally the same—the past and present cases—people might have a reason not to form any expectations whatsoever. When courts follow precedent, people are given a reason to believe in, and thereby rely on, the fact that if their cases are relevantly similar then they will receive the same treatment.

Sometimes, however, courts will have to depart from past decisions, and this is particularly true with respect to those decisions that are notoriously suboptimal—ie are notoriously unjust, arbitrary or otherwise unsound. Admittedly, not every suboptimal precedent ought to warrant a departure; otherwise, the contribution of the practice of following precedent to stability and reliability may be jeopardised. 51 This raises the question of whether there is a threshold for not following precedent.

It seems that, if a legal system wants to balance tailored justice (to the parties) with stability and reliability, that threshold will unavoidably be affected by what Andrei Marmor called ‘moral vagueness’. 52 The threshold, in other words, will contain an evaluative concept whose application requires a value-laden judgment by the later court.

Take the House of Lords’ 1966 Practice Statement: precedents of that court are ‘normally binding’ (on the same court), but they admit departures ‘when it appears right to do so’. 53 It seems difficult, and perhaps self-defeating, to anticipate all the necessary and sufficient conditions for establishing when it is right for that court to depart from precedent. 54 For this reason, a legal system will most likely delegate this determination on judges themselves, who will balance tailored justice with stability and reliability, often leaning towards the latter—as the same House of Lords (today the UK Supreme Court) has shown over time. 55

Concerning equality, we could ask a similar question. Could an observer affirm that courts in a particular country are being consistent with past exercises of judicial discretion when they adjudicate differently in disputes that are legally the same? Again, possibly yes, if these decisions are exceptional; but not if they count as the general rule. The practice of following precedent aims to prevent the passage of time from making a difference to the treatment of two disputes that are relevantly similar. Put differently, were a judge required to adjudicate simultaneously two disputes that are legally the same, she should decide them in a like manner. But judges seldom adjudicate disputes simultaneously; rather, they do it over a period of time. The practice, therefore, aims to prevent the passage of time from altering this kind of treatment. Accordingly, when two disputes are legally the same, but they arise at different times, one way to deliver consistent treatment is to decide the new case in conformity with the precedent.

Conformity to precedent is a distinctive means to advance the rule of law. By precedent-following, a legal system can foster this ideal in ways that can only be done through adjudication—for example, by tackling specific problems raised by litigation among individuals, resolution of which has systemic implications for the legal community as a whole. The null model, by contrast, is precisely characterised by the fact that the legal system has decided not to live up to this distinctive opportunity—of advancing the rule of law via precedent-following.

B. Commitment to the Rule of Law

I have argued that the values of stability, reliability and equality are ends towards which the practice of following precedent presents itself as a distinctive means. If my discussion is sound, it provides a pro tanto reason for judicial conformity to precedent. That is, to the extent that courts have a reason to advance the rule of law, they also have a reason to follow precedent.

But more needs to be done. In particular, it is vital that the reason to follow precedent does not depend on whether a later court agrees with the precedent’s correctness. Otherwise, we face two crucial objections: one descriptive, the other normative. The descriptive objection would argue that many courts follow precedents independently of their correctness. 56 The normative objection, by contrast, would insist that, if precedent-following is to make a contribution to the rule of law, it should not depend on a later court’s sympathy with the precedent. 57

I shall pursue the opposite strategy: the reason to follow precedent is content-independent, in the sense that later courts have it whether they agree with how the precedent was decided or not. One challenge that arises immediately is the following: how can we justify later courts that knowingly replicate incorrectly decided precedents? How can an agent be justified in performing an action she knows to be incorrect? Drawing from contributions on argumentation theory 58 and practical reasoning, 59 I will argue that a legal system’s commitment to the rule of law can justify later courts in following precedents they know to be wrong.

To illustrate the problem, it will be useful to distinguish between two versions of following precedent: ‘weak’ and ‘robust’. 60 According to the weak version, a later court has a reason to follow precedent only if the precedent was correctly decided. By contrast, in the robust version a later court has such a reason independently of the precedent’s correctness. On this view, the mere fact of a precedent’s existence—regulating the case at hand—is a reason for the later court to follow it. It is the robust version that Frederick Schauer has in mind when he argues: ‘if we are truly arguing from precedent, then the fact that something was decided before gives present value despite our current belief that the previous decision was erroneous’. 61

For Schauer, precedent-following entails the robust version. Yet the problem with this approach is that an incorrect precedent cannot become correct simply by virtue of being followed in the future. If I lied to you in the past, lying to you again will not be justified simply because I already did it once. The reason, in general, is that the mere performance of an action is not sufficient to alter its moral quality. 62

A similar situation happens in law. If an earlier court set a precedent that the later court knows to be wrong, following it will not make the later court’s decision right. Or not unless further premises are added to the normative background. 63 A typical premise of this kind is a positive second-order reason for action. 64 In general, first-order reasons are considerations in favour of performing or refraining from performing a certain action. Positive second-order reasons are considerations in favour of acting on one of these first-order reasons. Negative or ‘exclusionary’ second-order reasons are considerations supporting not acting on certain first-order reasons. 65 The combination of a first-order reason plus an exclusionary second-order reason is what Joseph Raz calls a ‘protected reason’. 66 (I will return to this idea in the next section.)

Commitments are a good example of a positive second-order reason. If, for instance, one has good reasons to pursue a particular project, a commitment can be a second-order reason to act on these reasons. More importantly, sometimes this commitment can be the sole reason for why one perseveres on the chosen path—say, because one’s initial reasons no longer exist, such as when one’s preferences, or the circumstances of life, have changed. In these cases, commitments provide, as Ruth Chang writes, ‘the grounds for new will-based reasons’. 67 Similarly, in virtue of a particular commitment, sometimes we see ourselves making decisions we would not otherwise make. Your commitment, say, to a professional tennis career can put you in a situation where every year you miss the birthday party of your daughter, because every year you must play the same tournament in another country. Without this commitment, it would be wrong to miss your daughter’s birthday. In more dramatic scenarios, as Raz writes, ‘one’s choice does make it right for one to pursue a goal which but for one’s commitment to it would have been a wrong goal to pursue’. 68

As a positive second-order reason, therefore, a commitment is a premise that can be added to the normative background to justify what would otherwise be unjustified. Likewise, when it comes to precedent-following, commitments can do a similar work. Suppose two years ago your daughter Claudia turned 15 and you allowed her to drink wine for the first time. In about a week, Peter, your youngest son, will reach the same age, and he wants to know whether you will allow him to drink wine as well. Assume, further, that with time you have come to realise that it was never right to allow Claudia to drink wine at such a young age. That decision was, in other words, a mistake. Now, if the situation of Peter is relevantly similar to that of Claudia, 69 do you have a reason to allow Peter to drink wine?

Again, according to weak precedent-following, you do not have such a reason if it was wrong to allow Claudia to drink wine. Now, suppose you have a commitment not to disappoint the reasonable expectations that your past decisions have created in your children. Or assume that it is really important for you not to give your children the impression that you treat them differently when they are similarly situated. Thus, unless very exceptional circumstances arise, you have a commitment to show them that you treat them equally by following your past decisions.

This type of commitment can ground robust precedent-following. It can give you now a reason for following a past decision you know is incorrect. Similarly, a legal system’s commitment to the rule of law can justify those courts that follow precedents known to be wrong. As Neil Duxbury writes, ‘Even a decision widely considered wrong might continue to be followed if people have reasonably relied on it arranging their affairs’. 70

Therefore, if a legal system has a commitment to the rule of law, and if judges live up to that commitment, 71 then robust precedent-following is a distinctive way in which they could do so. Now, we should bear in mind two things. First, there is a gap here between precedents that are wrong and those that are utterly wrong. I want to leave open the possibility that, with respect to the latter, a commitment to the rule of law may not necessarily turn right what is utterly wrong—simply by following precedent. 72 This caveat, however, does suggest that, with respect to less suboptimal precedents, or to precedents that do not necessarily reflect the later court’s preferred views, a commitment to the rule of law can do the justificatory work we are looking for.

Secondly, commitment to the rule of law does not necessarily ground a content-independent obligation to follow incorrectly decided precedents. It does, however, ground a content-independent reason —again, pro tanto . To say that courts may follow wrongly decided precedents in order to foster the rule of law is not to say that they must . It means only that we need to keep the door open for courts to reach legally justified decisions even if they follow precedents known to be wrong.

Commitment to the rule of law can make room for courts to adjudicate under robust precedent-following. Thus, the mere fact that an earlier court decided a dispute is a reason for the later court to follow this decision in a relevantly similar dispute. Under the strong version, the existence of a precedent-governed dispute triggers a non-contingent reason for action. The later court always has a reason to decide the same dispute by following precedent.

This non-contingent reason is a minimum requirement of the rule of law. Without it, we are susceptible of going back to the null model. But once this minimum requirement has been secured, there is yet another question that we need to ask ourselves. The answer to this question may divide legal systems. The question is whether the non-contingent reason to follow precedent should stay as a minimum requirement or should be reinforced. One way in which a legal system may reinforce its commitment to the rule of law is by requiring courts to treat the same reason as an obligation . For present purposes, an obligation is a requirement that derives from the combination of a first-order reason plus an exclusionary reason not to act on some conflicting reasons—a protected reason. 73

Therefore, depending on a legal system’s commitment to the rule of law, we can identify two modes of precedential reasoning. One is characterised by the fact that the non-contingent reason to follow precedent is only a reason—and, as such, it can be outweighed by a more compelling reason. The other is characterised by that reason being a protected reason—ie having an exclusionary character—meaning later courts are prevented from acting on certain excluded reasons. Unlike the null model, these two modes are consistent with the rule of law—in fact, they are derived from this ideal.

In the following two subsections, I will articulate these modes in more detail. Following familiar terminology, I will call them ‘persuasive’ and ‘authoritative’. 74 I will start with the latter, because it presents complexities worth disentangling from the outset. Before doing so, however, it is important to consider one important methodological caveat.

Whether an account is fully descriptive or may be detached, to a sensible extent, 75 from a certain practice depends on the account’s purpose. In the introduction, I suggested that my aim is not to depict specific adjudicatory practices, for example, of either the civil law or the common law, but to provide a framework within which we may understand these practices. In particular, the authoritative mode aims to explain the idea of having a protected reason to follow precedent, while the persuasive mode involves that of having a bare reason . The authoritative mode, thus, is not necessarily a depiction of the common law, nor is the persuasive mode necessarily one of the civil law. Courts in these two traditions can have both types of reasons to follow precedent. Accordingly, the civil law may share features of the authoritative mode, while the common law may share ones of the persuasive mode. 76

A. The Authoritative Mode

Under the authoritative mode, whenever a precedent-governed dispute arises, the later court has a protected reason to follow precedent. This reason entails both a reason to decide the dispute in conformity with the precedent and an exclusionary reason not to decide the same dispute on certain reasons against following the precedent. If there are no non-excluded reasons against following precedent, then the later court must follow the relevant precedent—unless, as we will see, the precedent can be distinguished. 77 Again, it is because of this combination of a first-order reason plus an exclusionary reason that we can think of the protected reason to follow precedent as giving rise to an obligation . 78

Typically, the obligation of later courts to follow precedent applies whenever the precedent and present case are legally the same: whenever their similarities are relevant for the law, while their differences are not. When, conversely, these two cases are legally different , a later court may distinguish. In other words, the obligation of later courts under the authoritative mode has disjunctive form: either to follow or distinguish the precedent. 79 ‘Distinguishing’, in particular, is the practice by which the later court shows that the present case has a novel fact not captured by the precedent, and which is legally relevant for handing down a different decision. In the common law, the majority of scholars think that distinguishing is an integral part of the practice of following precedent—and hence the obligation’s disjunctive form. 80 Some scholars, however, think that later courts should not distinguish. 81

This debate between common law scholars has one consequence for our analysis. What exactly does the obligation to follow precedent consist of? Is there an obligation for later courts to apply the legal rule provided by the ratio decidendi of the precedent? Or is such an obligation, as Grant Lamond claims, to treat the precedent as correctly decided on its facts? 82 The fact that this debate is still ongoing makes it difficult to provide a clear-cut answer. 83 My own view, which I hope to provide in detail soon, is that the obligation of a later court is to respect the decision of the earlier court to treat certain established facts as material, to give them a particular legal significance and to decide on the balance of reasons. 84 This view would lean towards that of Lamond and later developed by John Horty. 85 It can be summarised as follows: the later court must render a decision that is consistent with the authoritative treatment that the earlier court gave to the facts or factors of the precedent, as these were reported.

In any event, for now we need only to bear in mind that the specific content of the obligation to follow precedent is a matter of discussion in the common law. That obligation can take the form, inter alia , of having to apply the rule laid down by the ratio , 86 or having to decide in a way that is consistent with the ‘background case’, as Horty puts it. 87 But, to be sure, in both cases the later court has an obligation to decide the precedent-governed dispute by following precedent. In both cases, then, an authoritative mode exists. This mode, again, entails a reason for action—namely, decide the present case by following precedent—and an exclusionary reason not to act on certain conflicting reasons. 88

One reason typically excluded from being acted upon by the later court is disagreeing with the precedent’s correctness. It is often the case that the later court must follow the relevant precedent even if it thinks that, by doing so, the court will render an otherwise suboptimal decision. In some exceptional cases, the legal system may authorise some courts to act on the otherwise excluded reason of disagreeing with the precedent’s substantive merits. When these precedents originated in the same court that may act on this non -excluded reason, the authorisation is typically known as the power to overrule . Its normative effect is twofold: for the later court, a reason otherwise excluded is a non-excluded reason. For the legal system, the overruled precedent loses its erga omnes force. The upshot is that such a precedent typically ceases to be part of the law. 89

The grounds on which a court may overrule vary across jurisdictions—and also within one legal system. To illustrate: by virtue of the 1966 Practice Statement, 90 the House of Lords (today the UK Supreme Court) is authorised to overrule its own precedents when ‘it appears right do so’. Accordingly, not following precedent when ‘it appears right to do so’ is a non-excluded reason. 91 In contrast, in Young v Bristol Aeroplane Co Ltd , 92 the Court of Appeal (Civil Division) declared itself to be bound by its own precedents, with three exceptions: (i) where two of these precedents would conflict with each other; (ii) where one of these precedents is incompatible with a decision of the House of Lords/Supreme Court; and (iii) where a precedent was given per incuriam . Thus, were the Court of Appeal to overrule one of its precedents because ‘it appears right to do so’ (as in the Practice Statement), that decision would be incompatible with the authoritative mode. The court would be acting on a reason that was excluded. 93

A final remark. For various reasons, most of which have to do with effective action-guiding and better coordination between courts, a legal system may restrict the scope of the precedents that later courts must follow. Vertical and horizontal stare decisis are precisely ways to characterise this restriction. Now, the logic of grounding precedent-following in the rule of law does not necessarily preclude bottom-up stare decisis —ie higher courts being bound by the precedents of lower courts. However, by virtue of considerations such as effectiveness, this authoritative force is typically restricted to either vertical (top-down) or horizontal stare decisis . Yet one could still argue that the rule of law provides a non-contingent and pro tanto reason (albeit not a protected reason) for higher courts to consider at least some of the precedents of lower courts.

B. The Persuasive Mode

Under the persuasive mode, whenever a precedent-governed dispute arises, the later court has a bare reason to decide the same dispute in conformity with the precedent. As such, this reason can be outweighed by a more compelling reason.

As suggested before, possibly a notable feature of the persuasive mode is that it is flexible, because it allows for different degrees of precedential constraint depending on the weight to be given to the reason in favour of following precedent. This reason could be very weighty if, say, the precedent originates from the highest tribunal in the land. Even in that scenario there might be room for various alternatives, depending on, say, whether the past decision was reached by a clear majority, a prestigious judge concurred and so on. By contrast, the same reason may be normatively weaker if, say, the precedent was reached by a lower court, or a court composed by one judge only.

Another factor giving more or less weight to the reason in favour of following precedent is whether the later court thinks that the precedent was rightly or wrongly decided. But this creates a problem: how can this substantive analysis be compatible with the content- independent character of the same reason? How can this reason allow for various weights depending on whether the later court agrees with the substance of the precedent?

This dilemma, to be sure, is merely apparent. Nothing in the notion of a content-independent reason prevents this reason from gaining extra weight by reference to some of its substantive merits. 94 The idea of content independence guarantees the reason a normative minimum: a nucleus that cannot be reduced but which can become weightier. Thus, to the extent that the later court has a reason to follow precedent, that reason has a normative nucleus that will not be affected by whether the precedent was rightly or wrongly decided. On top of this nucleus, the later court may add extra weight if it considers that the dispute was, say, rightly decided, or it may add no further weight at all if the reverse holds.

As we can see, the structure of the persuasive mode allows room for various scenarios. One may argue that within this mode there exists a weak version in contrast to a strong one. Within the latter, certain courts will take very seriously the existence of a precedent regulating the case at hand, but will not see themselves as being bound by it. The former would make room for those judges for whom the reason to follow precedent can easily be outweighed by another, conflicting reason.

Finally, there are two features that distinguish the persuasive mode from the null model. First, in the persuasive mode, whenever a relevantly similar dispute arises, later courts always have a reason to follow precedent. This non-contingent reason does not exist in the null model. Secondly, the principles of judicial transparency and good government strongly militate in favour of courts adjudicating under the persuasive mode to explain why the reason to follow precedent has been outweighed. This is because, all else being equal, it is contrary to the rule of law to depart from relevant precedent without explaining why.

In this final section, I want to analyse how both modes of precedential reasoning deal with two evaluative questions. The purpose of this analysis is to offer some of the tools that are vital for determining whether there is a model that should be preferred, and eventually for criticising the particular practice of precedents held by courts.

A. How Does Each Mode Advance the Rule of Law?

Let us start with stability and reliability. The authoritative mode often, but not necessarily, entails a view where precedents are part of the law. To the extent that courts are bound by precedent, those precedents may be treated as part of the law. 95 Where this is so, every court with the power to set a precedent has also, in theory, the power to change the content of the law. 96 Yet the authoritative mode reduces this margin for potential change by requiring later courts to decide the case at hand in conformity with the precedent. Thus, any time a precedent-governed dispute arises, the content of the law will remain somewhat stable, because the later court will have an obligation to follow precedent. This situation fosters reliability: people know in advance what courts have an obligation to do when they face a precedent-governed dispute.

On the persuasive mode, precedents are not, strictly speaking, part of the law, because they lack one essential feature that most legal norms (claim to) have: to provide authoritative guidance. 97 Hence, it may seem that courts under this mode cannot change the content of the law when they hand down rulings. Although this is true, there can be grey areas, such as a legal system where the obligation of courts to follow precedent is not de jure but de facto . 98 This situation can be problematic, for though, under a persuasive mode, the content of the law cannot be changed—again strictly speaking—by how courts apply the law, courts can nevertheless lead people to think that applications of the law are themselves part of the law. Courts, in other words, can affect reliability (what people may think the content of the law is) without changing the law itself.

This situation can be problematic because that de facto obligation depends mostly on contingencies of the legal system in question. It may depend, for example, on the particular composition of a court at a given time. Judges under this contingent composition may treat the reason in favour of following precedent as a protected reason. This, in turn, may create a contingent pattern of deciding precedent-governed disputes in conformity with the precedent. But because this pattern is the result of a de facto contingency and not of a de jure obligation, the pattern may change, such as when the composition of the court changes. In this new scenario, judges may treat the reason in favour of following precedent as a weak, non-protected reason. This can affect reliability, for people rely on this de facto pattern instead of relying on the law itself. 99

Finally, in relation to equality, again the authoritative mode presents advantages vis-à-vis the persuasive mode. If the dispute at hand and the precedent are legally the same, then the later court has an obligation to hand down the same decision. In relation to the persuasive mode, there is no denying that if the dispute at hand and the precedent are legally the same, then both can be adjudicated alike. The problem, again, is that this adjudicatory treatment often follows as a matter of contingency, not obligation.

B. How Does Each Mode Avoid Replicating Substantively Incorrect Decisions?

Suppose, to simplify the argument, that in 2019 the Supreme Court of an imaginary country handed down a decision that many respected judges and scholars consider mistaken on good grounds. How would both modes treat such a decision?

The authoritative mode, governing (typically, but not necessarily) 100 the treatment that lower courts should give to the decision of the Supreme Court, would prevent these courts from rendering a decision different to that of the Supreme Court. For a lower court to hand down a substantively correct decision, the Supreme Court would have to overrule its precedent and issue a new decision that is substantively correct. This means that in those areas where the authoritative mode is in operation, lower courts can only reach substantively correct decisions contingently, as this correctness depends on whether the relevant precedents were correctly decided. If they were, then the later court would replicate a correct decision. If they were not, then the lower court would be required to replicate a substantively incorrect decision. 101

Accordingly, there are three options a lower court has when faced with a wrongly decided precedent: to distinguish; to follow the precedent and render yet another substantively incorrect decision; or to adjudicate under the persuasive mode. If a later court wants to distinguish, as we saw above, then it must provide reasons showing that the case at hand presents a novel fact that is relevant for the decision. Sometimes, however, this fact does not exist. When this happens, the later court cannot distinguish, meaning it must replicate a decision that is substantively incorrect. This is the second option the court has, and seems to be the option the legal system wants the court to adopt when the precedent cannot be distinguished. Finally, the later court could adjudicate under the persuasive mode, but there might be responsibilities for doing so, particularly if that court has a legal duty to adjudicate under the authoritative mode.

It seems, therefore, that the authoritative mode places more value on advancing the rule of law than on deciding cases correctly, at least where this correctness entails contravening established precedent. 102 By contrast, the weakness the persuasive mode showed in the last subsection can now be seen as virtues in relation to the value of deciding cases correctly. Under the persuasive mode, later courts do not have an obligation to follow precedent. Courts may outweigh the reason in favour of following precedent and act on a potentially more compelling reason, such as deciding the same dispute in a substantively correct way. 103 This is not to deny the possibility that sometimes courts can have reasons as well for following wrongly decided precedents—this is why I argued in favour of robust precedent-following. For example, if the issue under consideration is so sensitive, reaching a different outcome may affect reliability in ways that are more prejudicial to the legal system than deciding the case in a substantively correct manner.

There is a minimum requirement of the rule of law in regard to precedent, and I have called it the persuasive mode of precedential reasoning. The null model, however lawful, runs counter to the rule of law. Yet the question still remains open as to which of the two modes that are compatible with the rule of law should be preferred. I do not think there is a unique answer here; it depends on the history of the legal system, its legal tradition and practices, and the values people in that system hold dear. Possibly in a legal system that attaches significant value to having democratic legislation as the main source of law, the reasons for leaning towards the persuasive mode are more demanding. For a system preferring flexibility in the adjustment of the law, the authoritative mode might be the best answer.

I have posed two evaluative questions, but much more could be said. For example, there are reasons to think that the degree of adjudicatory power that later courts have to give legal significance to the facts of the case varies between the two modes. In the authoritative mode, later courts cannot alter the legal significance that earlier courts gave to the facts of the precedent. In the persuasive mode, this obligation does not exist, at least not strictly speaking. Finally, there is the question of whether the authoritative mode entails judicial law making—at least in the robust form of a law-making power. There might be situations where indeed it does, but I will have to postpone that analysis for another time.

Much of the literature has become increasingly technical, partly because of the valuable contributions of nonmonotonic logics and artificial intelligence. On the other hand, many scholars have focused exclusively on precedent in either the common law or the civil law. But even within one of these traditions we may find courts treating precedents differently. For example, an authoritative treatment in one common law country may appear as a persuasive treatment in another common law country.

I have borrowed part of this terminology from various contributions on the value of precedent-following. See eg D Lyons, ‘Formal Justice and Judicial Precedent’ (1985) 38 Vand L Rev 495; F Schauer, ‘Precedent’ (1987) 39 Stan L Rev 571, 595–602; L Alexander, ‘Constrained by Precedent’ (1989) 63 S Cal L Rev 1, 26 and 51; R Cross and JW Harris, Precedents in English Law (4th edn, Clarendon Press 1991) 11–12; N Duxbury, The Nature and Authority of Precedent (CUP 2008), ch 5; L Alexander and E Sherwin, Demystifying Legal Reasoning (CUP 2008) 35–7; J Waldron, ‘Stare Decisis and the Rule of Law: A Layered Approach’ (2012) 111 Mich L Rev 1, 31; N Varsava, ‘How to Realize the Value of Stare Decisis: Options for Following Precedent’ (2018) 30 Yale JL & Human 62, 70–3.

It goes without saying that this ad hoc terminology does not prevent other values from being part of the rule of law. The point is that, to the extent that there is considerable agreement in the literature in identifying stability, reliability and equality as rule-of-law values, we can call these values collectively—and for current purposes only—‘the rule of law’. cf text to nn 30, 31 and 32 below.

The names ‘authoritative’ and ‘persuasive’ are commonplace in the Anglo-Saxon literature on precedents, but their exact meanings vary. For ease of reference, I will follow this familiar terminology, hoping to provide a consistent understanding of what it means to treat precedents as either authoritative or persuasive. See n 74 below.

Many legal systems give erga omnes force to the decisions of specific courts. Thus, these rulings are universally authoritative—namely, they apply to all future cases that happen to be legally the same. Hence, we loosely say eg ‘this case is governed by precedent’. My notion of a precedent is prior to this universal authoritative force. A precedent may have pro tanto persuasive force, or it may have no force at all.

See K Stevens, ‘Reasoning by Precedent—Between Rules and Analogies’ (2018) 24 Legal Theory 216, 217.

The distinction between horizontal and vertical precedent does not play a crucial role in the valuable contributions of EM Wise, ‘The Doctrine of Stare Decisis’ (1975) 21 Wayne L Rev 1043; Lyons (n 2); Alexander (n 2); G Lamond, ‘Do Precedents Create Rules?’ (2005) 11 Legal Theory 1; J Horty, ‘Rules and Reasons in the Theory of Precedent’ (2011) 17 Legal Theory 1; Varasa (n 2); Stevens (n 6).

Horizontal stare decisis is the authoritative effect that precedents have on later courts of equivalent hierarchy. Vertical stare decisis , by contrast, is the authoritative effect that precedents of higher courts have on lower courts. In the literature, Frederick Schauer is one who has consistently maintained this distinction. Yet when it comes to the reasons for following precedent, he has generally focused on horizontal stare decisis —see eg Schauer (n 2) 578 fn 11; F Schauer, ‘Precedent’ in A Marmor (ed), Routledge Companion to Philosophy of Law (Routledge 2012) 130–2. In F Schauer, Thinking Like a Lawyer (Harvard UP 2012) 41–2, Schauer claims that ‘the justifications for precedential constraint [vertical stare decisis ] are fairly obvious’: ‘lower court judges are expected to follow the “instructions” of those courts above them in what the military calls the “chain of command”’. This ‘chain of command’, however, is not obvious. The relation between higher and lower courts need not be of adjudicatory hierarchy—it could be of administrative hierarchy. But if a relation of adjudicatory hierarchy exists, it is not clear whether following precedent amounts to obeying a military command . Be that as it may, nothing in Schauer’s work suggests that the reasons for having horizontal stare decisis cannot support vertical stare decisis as well. For a somewhat sceptical analysis, in US law, of the arguments in favour of vertical stare decisis , see E Caminker, ‘Why Must Inferior Courts Obey Superior Court Precedents?’ (1994) 46 Stan L Rev 817.

J Gardner, Law as a Leap of Faith (OUP 2012) 192.

HLA Hart, The Concept of Law (3rd edn, Clarendon Press 2012) 7.

cf R Pound, ‘Justice According to Law’ (1913) 13 Colum L Rev 696.

In England, J Raz, The Authority of Law (2nd edn, OUP 2009) 184 fn 8 writes: ‘In English Law [the doctrine of precedent is] in fact part of the rule of recognition.’ This claim is extended to all common law countries by S Legarre and JC Rivera, ‘Naturaleza y dimensiones del “ stare decisis ”’ (2006) 33 Revista Chilena de Derecho 109, 112.

As one anonymous referee has correctly pointed out, many civil law countries have shown a tendency to depart from the classic civilian understanding of precedent to one where courts, at least in certain matters, are required to follow precedent. Good examples are Colombia, Mexico and Italy; see, respectively, C Bernal Pulido, ‘El precedente en Colombia’ (2008) 21 Revista Derecho del Estado 81; V Fernández Fernández, ‘La justicia de los precedentes. ¿Invasión a la independencia y autonomía del juzgador?’ (2016) XXIX Revista de Derecho (Valdivia) 9; A Cadoppi, Il valore del precedente nel diritto penale (2nd edn, Giappichelli Editore 2014). This tendency has led some scholars to consider where the civil law and the common law intersect; see Cadoppi (ibid.) 199. The tendency is undeniable, at least with respect to some civil law countries. But I would hesitate to call this tendency a full-blown system of stare decisis . To begin with, in many civil law countries the binding effect of precedents is usually reserved for the decisions of specific courts only—typically, higher courts and constitutional courts. Moreover, this effect is piecemeal, ie applicable to specific areas of law, such as constitutional law and criminal law. In many countries, furthermore, there is still considerable disagreement as to whether precedents should bind later courts—for a list of scholars who, in Spain, reject this view, see T García-Berrio Hernández, ‘La Controversia sobre el Precedente Judicial: un Clásico del Derecho en Constante Renovación’ (2006) 4 Foro, Nueva Epoca 127, 145–6. Given this disagreement and variety of practices, and also bearing in mind that the argument in this part is not about what the civil law is or is not today, I will rely on a rather classic approach to precedent-following in the civil law. The argument, to be sure, is about what we may learn from such an approach, namely that the null model is conceptually possible.

In Europe, examples of this relative force are provided by: art 1355 of France’s Code Civil; s 325(1) of Germany’s Zivilprozessordnung; and art 2909 of Italy’s Codice Civile. In Latin-America, similar examples can be found in: art 3 of Chile’s Código Civil; art 218 of Uruguay’s Código General del Proceso; and art 17 of Colombia’s Código Civil.

There are exceptions that could be classified as follows: (i) non-parties that may also benefit from the authoritativeness of the decision—eg lawful successors; and (ii) courts whose decisions bind erga omnes , eg constitutional courts.

E Steiner, French Law: A Comparative Approach (OUP 2010) 91 (emphasis in original). See also D Pugsley, ‘Two Systems of Precedent’ (1981) 15 The Law Teacher 7, 7: ‘Indeed French courts cannot even simply rely on a precedent; they must justify their own decisions themselves.’

JH Merryman and R Pérez-Perdomo, The Civil Law Tradition (4th edn, Stanford UP 2019) 84. In a similar vein, see Legarre and Rivera (n 12) 112; B Spaić, ‘The Authority of Precedents in Civil Law Systems’ (2018) XXVII Studia Iuridica Lublinensia 27, 28.

In Italy, see M Taruffo and M La Torre, ‘Precedents in Italy’ in N MacCormick and R Summers (ed), Interpreting Precedents (first published 1997, Routledge 2016) 155: ‘A judgment not applying a relevant precedent may be lawful in itself, since its lawfulness depends on its consistency with the statutory and constitutional provisions, not on its coherence with precedents.’

A Peczenik, ‘The Binding Force of Precedent’ in MacCormick and Summers (n 18) 463. Based on the example of Poland, Peczenik takes ‘further support’ to be cases where eg a precedent adds weight ‘to other legally relevant arguments for the decision handed down’; ibid 462.

If courts can lawfully adjudicate disputes without paying attention, in a normatively significant way, to relevant precedent, then it is doubtful whether something in law’s nature requires the practice of following precedent. It could be objected that nothing in the nature of the civil law would require this practice, but it would be part of the common law. Against this view, see Duxbury (n 2) 34, for whom ‘the common law does not need the doctrine of precedent in order to function’. cf Wise (n 7) 1057–8.

See eg Raz (n 12) 224; B Tamanaha, On the Rule of Law. History, Politics, Theory (CUP 2004) 33–4; J Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Ga L Rev 1, 6; Waldron (n 2) 3–4.

This is the view associated with the well-known accounts of L Fuller, The Morality of Law (Yale UP 1969) ch 2; Raz (n 12) 213–14; J Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) 270–3; J Rawls, A Theory of Justice (first published 1971, Harvard UP 1999) 235–43. See also Tamanaha (n 21) 34, 66–7, 71, 93–4, 96 and 119; Waldron, ‘The Concept’ (n 21) 6; J Raz, ‘The Law’s Own Virtue’ (2019) 39 OJLS 1, 3–5.

See eg Tamanaha (n 21) 119; T Bingham, The Rule of Law (Allen Lane 2010) ch 9; Waldron, ‘The Concept’ (n 21) 7–8; J Waldron, ‘The Rule of Law and the Importance of Procedure’ (2011) 50 Nomos 3, 6.

See eg Tamanaha (n 21) 102–4 and 109–11; Bingham (n 23) ch 7; J Waldron, ‘The Rule of Law’, The Stanford Encyclopedia of Philosophy (Summer edn, 2020) < https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/ > accessed 20 June 2020.

See eg Tamanaha (n 21) 112–13.

See eg P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 467; Tamanaha (n 21) chs 7–9; Waldron, ‘The Rule of Law and the Importance of Procedure’ (n 23) 4–5; Waldron, ‘The Rule of Law’ (n 24); A Zanghellini, ‘The Foundations of the Rule of Law’ (2016) 28 Yale JL & Human 213, 214.

Tamanaha (n 21) 92.

Gardner (n 9) 198–204.

A famous example of this disagreement can be found in Raz, The Authority of Law (n 12) 210–11. On the disputed nature of the rule of law, see J Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137, 159; P Burgess, ‘The Rule of Law: Beyond Contestedness’ (2017) 8 Jurisprudence 480, 481.

Tamanaha (n 21) 102; similarly, ibid 111.

There is room in the literature for grounding precedent-following in more robust conceptions of the rule of law. The legal philosophy of Ronald Dworkin is one alternative. See R Dworkin, ‘Hard Cases’ (1975) 88 Harv L Rve 1057, 1087–101; R Dworkin, Law’s Empire (Harvard UP 1986) ch 7. A Dworkinian view of stare decisis was articulated by S Hershovitz, ‘Integrity and Stare Decisis’ in S Hershovitz (ed), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (OUP 2006) ch 5. A critical examination of Dworkin’s views on precedent can be found in D Pannick, ‘A Note on Dworkin and Precedent’ (1980) 43 MLR 36. Discussing Dworkin’s views on precedent, see also S Perry, ‘Judicial Obligation, Precedent and the Common Law’ (1987) 7 OJLS 215, 223–6.

Other considerations may support following precedent—see eg Duxbury (n 2) ch 5; Varsava (n 2). Among them is the epistemic guidance that later courts may receive from knowing how earlier courts have dealt with statutes that are vague or have an unclear semantic meaning. Similarly, we may find arguments relying on the overall efficiency of the system’s adjudicatory process. I will not explore these other approaches, but I do not think my account is incompatible with them.

One may account for stability, reliability and equality in terms of rule-of-law values by looking at some of the most influential accounts of this ideal—see eg n 22 above.

Stability seems valuable only when we have awareness of something remaining stable and can thus be relied upon for future decision making. Now, because some may think that stability has value in its own right, I have decided to keep stability and reliability as separate values. Nothing in the main argument turns on this point. That stability is instrumentally valuable to reliability is a view present in T Benditt, ‘The Rule of Precedent’ in L Goldstein (ed), Precedents in Law (Clarendon Press 1987) 91; Duxbury (n 2) 160–1. Traces of this view can also be found from Lord Mansfield in Bingham (n 23) 38 and Hayek in Tamanaha (n 21) 66.

See eg C Perelman, The Idea of Justice and the Problem of Argument (J Petrie tr, Routledge & Kegan Paul 1963) 38; H Kelsen, Pure Theory of Law (M Knight tr, 2nd edn, University of California Pres 1967) 141–2; P Westen, ‘The Empty Idea of Equality’ (1982) 95 Harv L Rev 537, 551; J Raz, The Morality of Freedom (Clarendon Press 1986) 220–1.

On this point, see eg K Winston, ‘On Treating Like Cases Alike’ (1974) 62 CLR 1, 22; E Chemerinsky, ‘In Defense of Equality: A Reply to Professor Westen’ (1983) 81 Mich L Rev 575, 579–80.

On the various duties of judges, see eg L Green, ‘Law and the Role of a Judge’ in K Ferzan and S Morse (eds), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S Moore (OUP 2016) ch 22.

Winston (n 37) 18. Winston seems to have in mind epieikeia —equity, a corrective to law’s generality. See Aristotle, ‘Nicomachean Ethics’ in J Barnes (ed), The Complete Works of Aristotle: The Revised Oxford Translation vol II (Princeton UP 1984) 1796 (1137 b 17–18).

The requirement of justification is particularly stringent when the relevant party has showed to the court that there is precedent regulating the matter at hand, but also if it happens that the later court is aware of this precedent—or others that are relevant.

Raz, ‘The Law’s Own Virtue’ (n 22) 15.

Finnis (n 22) 270.

Fuller (n 22) 33.

Raz, The Authority of Law (n 12) 229; Gardner (n 9) 192; L Green, ‘Should Law Improve Morality?’ (2013) 7 Criminal Law and Philosophy 473, 487.

Bingham (n 23) 8.

That is, I first articulated the null model by looking at specific features of the civil law tradition and then criticised it on the basis of the rule of law.

On the idea of a second-order reason, see text to nn 64, 65 and 66 below.

Some of which is provided in n 2 above; but see in particular Duxbury (n 2) 159: ‘The point … is not that precedent-following is supportable because stability and closure are intrinsically good objectives, but that if judges consider these objectives desirable then precedent-following is one way by which they can pursue them.’

See Lyons (n 2) 511–12; Schauer, ‘Precedent’ (n 2) 597–8; Duxbury (n 2) 163.

Or part of an exceptional set of decisions. This suggests that fostering the rule of law is more a matter of degree than of kind, insofar as a legal system may tolerate exceptions to the various rule of law desiderata . cf T Endicott, Vagueness in Law (OUP 2000) 191.

As Schauer, ‘Precedent’ (n 2) 598 puts it: ‘maintaining a serious regime of precedential constraint entails some number of suboptimal decisions’. In a similar vein, see R Kozel, Settled Versus Right: A Theory of Precedent (CUP 2017) 6.

A Marmor, ‘Should Like Cases Be Treated Alike?’ (2005) 11 Legal Theory 27, 29.

[1966] 1 WLR 1234 (emphasis added).

cf Hart (n 10) 128; L Duarte d’Almeida, Allowing for Exceptions (OUP 2015) 184.

According to Duxbury (n 2) 128, ‘only rarely since 1966 has the House of Lords used the power that it created for itself’. On the House of Lord’s Practice Statement, see ibid 123–49; W Twining and D Miers, How to Do Things with Rules (5th edn, CUP 2010) 283–5.

Such as a significant number of courts in the common law tradition.

cf n 51 above; Stevens (n 6) 219.

K Stevens, ‘Case-to-Case Arguments’ (2018) 32 Argumentation 431.

Raz, The Morality of Freedom (n 36) 388; R Chang, ‘Hard Choices’ (2017) 3 Journal of the American Philosophical Association 1, 17.

This distinction is based on Stevens, ‘Case-to-Case Arguments’ (n 58) 435–7, who distinguishes between weak and strong versions of the principle ‘treating like cases alike’. Now, one should be careful not to conflate precedent-following with treating like cases alike or to ground the former in the latter. Both have been a debated topic in the literature. See eg Lyons (n 2); F Schauer, ‘On Treating Unlike Cases Alike’ (2018) 33 Constitutional Commentary 437.

Schauer, ‘Precedent’ (n 2) 575; cf Schauer, Thinking Like a Lawyer (n 8) 90; Varsava (n 2) 76; Stevens (n 6) 219; Kozel (n 51) 6.

Stevens, ‘Case-to-Case Arguments’ (n 58) 436–7.

See J Raz, Practical Reasons and Norms (first published 1975, OUP 1999) 39.

ibid; Raz, The Authority of Law (n 12) 17.

Raz, The Authority of Law (n 12) 18.

Chang (n 59) 17 (emphasis added).

Raz, The Morality of Freedom (n 36) 388.

This proviso is important. It means that there are no relevant differences between the two cases that would warrant a different treatment.

Duxbury (n 2) 128.

This commitment may well constitute part of the duty that judges assume when they are sworn in. I thank Crescente Molina for this suggestion.

cf L Green, ‘Law as a Means’ in P Cane (ed), The Hart–Fuller Debate in the Twenty-First Century (Hart Publishing, 2010) 22; Green, ‘Law and the Role of a Judge’ (n 38) 335.

See text to n 66 above.

See n 4 above. In my view, what is either authoritative or persuasive is not the precedent itself—a precedent is a non-normative fact. Only by virtue of a moral consideration can a precedent be a pro tanto normative fact. That is why I prefer to speak of the modes of precedential reasoning as being either authoritative or persuasive.

As a minimum methodological requirement, any sound account needs to pick central features of the practice it wishes to analyse; see Lamond (n 7) 15; A Rigoni, ‘Common-Law Judicial Reasoning and Analogy’ (2014) 20 Legal Theory 133, 135–6; Stevens, ‘Reasoning by Precedent’ (n 6) 218–19. But once these central features are picked, there is room for a sensible detachment from practice—see n 76 below.

The methodological approach I have adopted is vital for sorting out possible factual counterexamples. To be sure, any descriptive account of what courts do—eg how they reason using precedents—is potentially subject to counterexamples. Consider the following case: Perry (n 32) 230–4 attributed to Raz a ‘positivistic’ account of precedent-following—one where later courts have exclusionary reasons to follow precedent. He then criticised this positivistic framework on grounds of descriptive inaccuracy—many common law courts distinguish in ways that are incompatible with Raz’s proposal. For example, they drop conditions for the ratio ’s application—ibid 239. In a nutshell, according to Perry, legal positivism (at least as presented by Raz) fails to account for what many common law courts do when they reason using precedents. Perry then offered another possible understanding of the practice . But Perry’s objection would misfire if there are some common law courts in the world that treat precedents as giving rise to exclusionary reasons. His objection would backfire if his own account is affected by a set of plausible counterexamples. Both options are always possible, given the large field of ongoing adjudication. A sensible detachment from practice is beneficial because it allows us to identify modes of precedential reasoning that can exist independently of a particular legal tradition.

Stevens, ‘Reasoning by Precedent’ (n 6) 218 characterises the situation of a later court that has not found a non-excluded reason against following precedent as having a binding reason to follow precedent. When, by contrast, such a court has an authoritative reason, the court can either follow or distinguish the precedent by acting on a non-excluded reason.

For current purposes, we can follow Raz on this point; see eg J Raz, ‘Promises and Obligations’ in PMS Hacker and J Raz (ed), Law, Morality, and Society: Essays in Honour of HLA Hart (Clarendon Press 1977) 223, arguing that ‘An action is obligatory if it is required by a categorical rule, ie a mandatory rule which applies to its subjects not merely because adherence to it facilitates achievement of their goals’. Later, in Raz, The Authority of Law (n 12) 234–5, Raz seemed to refer to such a categorical rule in terms of a protected reason: ‘I have argued elsewhere [ie the work just cited] that “an action is obligatory only if it is required by a protected reason”.’

Raz, The Authority of Law (n 12) 185; Lamond (n 7) 3; Schauer, Thinking Like a Lawyer (n 8) 58.

See eg Lamond (n 7) 15, arguing that ‘Any satisfactory view of precedent must see distinguishing as an integral part of it rather than as an add-on or quirk of the common law’.

Notably Alexander and Sherwin (n 2) 122: ‘The rule model of judicial decision making has no conceptual room for the practice of distinguishing rules’; ibid 123: ‘distinguishing rules is logically equivalent to repealing rules at will’.

Lamond (n 7) 1, 3, 16, 23 and 25.

See Stevens, ‘Reasoning by Precedent’ (n 6) for the current state of this debate.

By treating certain established facts as material, I mean making them relevant for deciding the present case. By giving a particular legal significance, I mean deciding whether a specific fact, previously treated as material by the court, favours one of the parties. By deciding on the balance of reasons, I mean establishing the necessary and sufficient conditions for reaching a justified decision.

Horty (n 7).

There is significant literature on the various tests for discovering the ratio decidendi of a case. Much of this literature dates back to the first half of the twentieth century—and even before. By then, as is well known, legal realists like H Oliphant and JF Francis offered revolutionary views about the ratio of a precedent—many of them attacking its supposed determinacy. Authors such as Arthur Goodhart offered tests where the purpose was to make the ratio more determinate, so that the distinction between the ratio and the obiter of a case may be useful in explaining precedential constraint. I unfortunately cannot address this vast literature here. For a helpful study, see Cross and Harris (n 2) ch II; Duxbury (n 2) 67–92; Twining and Miers (n 55) 304–12.

Horty (n 7) 13.

In relation to the common law, Lamond (n 7) 19 attempts more precision by saying that ‘the ratio would provide the basis for the first-order part of the protected reason. The other facts of the case would provide the basis for the exclusionary reason; later courts are excluded from relying on reasons provided by features that were present in the precedent case to defeat the first-order reason for the result.’ Recently, Robert Mullins, ‘Protected Reasons and Precedential Constraint’ (2020) 26 Legal Theory 40 has defended an account of what he calls ‘the protected reason model of precedent’. See eg ibid 52–3: ‘On the protected reason model developed in the previous section, a past decision binds a subsequent decision-maker when the rule relied on in the previous decision is applicable to the factual scenario that applies in the subsequent case. The decision-maker must take the ratio of the previous decision as a reason for deciding in the same way and a reason for excluding otherwise applicable reasons present in these past cases from acting as the basis for an inconsistent judgment.’

With the proviso of n 95 below. There is also the question of whether a precedent could lose its erga omnes force prospectively only . See Twining and Miers (n 55) 285 fn 48, discussing Re Spectrum Plus Ltd [2005] UKHL 41, where the House of Lords concluded that, in order to do so, it would have to be an exceptional case.

See text to n 53 above.

See Twining and Miers (n 55) 284 for some instances in which the House of Lords has acted on this non-excluded reason.

[1944] KB 718.

The argument needs to be qualified. According to Twining and Miers (n 55) 286–7, the Court of Appeals has restated aspects of the doctrine laid down in Young v Bristol Aeroplane , allowing for departures from relevant precedent when ‘the previous decision is manifestly wrong’.

I think G Lamond, ‘Persuasive Authority in the Law’ (2010) XVII Harvard Review of Philosophy 16, 17 would agree with me: ‘Obviously the second approach [ie that certain sources have content-independent normative weight] does not rule out considering the persuasiveness of the view. The view could carry even more weight where it is found to be convincing ’ (emphasis added).

Strictly speaking, however, authority and legal validity are very different ideas. Whether a norm is authoritative depends—at least for current purposes—on whether it provides a protected reason for action; see eg Raz, The Authority of Law (n 12) 21–5. By contrast, whether a norm is legal depends on whether it meets the criteria for legal validity given by the rule of recognition. This makes room for the possibility that a precedent could be ‘authoritative’ (in a loose sense—see n 74 above) without being part of the law. But we need not make too much out of this conceptual possibility. Raz, The Authority of Law (n 12) has argued that, at least in England, the rule of recognition gives legal validity to authoritative precedents. There is no reason to think that the same could happen with respect to other legal systems—cf Legarre and Rivera (n 12).

cf Raz, The Authority of Law (n 12) 185; Lamond, ‘Do Precedents Create Rules?’ (n 7) 17; Gardner (n 9) 80.

See eg Raz, The Authority of Law (n 12) ch 2. An excellent elaboration of law’s claim to authority can be found in Gardner (n 9) ch 5. The qualification ‘strictly speaking’ (in the text) is important because there could be a grey area, which I cannot explore here, where norms that provide a reason only, as opposed to a protected reason, could nonetheless become legal norms. This will depend on other, possibly complementary jurisprudential views about law’s authoritativeness. See eg A Marmor, ‘Soft Law, Authoritative Advice and Non-binding Agreements’ (2019) 39 OJLS 507.

In relation to the civil law, see Merryman and Pérez-Perdomo (n 17) 47; Peczenik (n 19) 461 and 465–6. I believe a real tension may exist between de jure and de facto precedent-following when a statutory provision explicitly provides that judicial decisions are binding on the parties to the dispute only —as in Chile; see n 14 above.

There is no denying that the law may offer less guidance, and thus affect reliability, without authoritative applications of it binding later courts.

See the final remark in section 5A.

As correctly noted by Duxbury (n 2) 24, Waldron, ‘Stare Decisis’ (n 2) 8 and Stevens, ‘Reasoning by Precedent’ (n 6) 219, all writing in relation to the common law.

cf G Postema, ‘Some Roots of our Notion of Precedent’ in Goldstein (n 35) 31.

In relation to the civil law, see Merryman and Pérez-Perdomo (n 17) 85.

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Overview - Rule of Law

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers .  In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people.  Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress.  The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule.  There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions.  Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

An Administrative Jurisprudence: The Rule of Law in the Administrative State

Kevin m. stack*.

This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the eval­uation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President’s power to direct subordinate officials and giving weight to an agency’s determination of the scope of its own authority. On the other hand, these rule-of-law principles expose some long-established practices as having troublesome foundations, such as the settled doctrine that agencies need not justify their choice of policymaking form. Consideration of these principles in the context of administrative law and government ultimately shows—like so much of Professor Strauss’s work—the many ways in which government under law ultimately depends on officials taking the rule of law as their highest-order commitment.

* Professor of Law, Vanderbilt Law School. I am grateful to John Manning, Margaret Lemos, Larry May, Max Minzner, Alex Reinert, Edward Rubin, Christopher Serkin, and Ganesh Sitaraman for suggestions and discussion as well as to the other participants in the Harold Leventhal Memorial Symposium at Columbia Law School in honor of Professor Peter L. Strauss at which this Essay was presented.

INTRODUCTION

• THE DIMENSIONS OF THE RULE OF LAW
• Decisional Allocation
• Scope of Authority
• The Locus of Notice Demands
• Implications for “Choice” Among Policymaking Forms
• Obligation to Issue Guidance
• Justification
• Locus of the Demand for Coherence
• The Agency’s Duty of Systemic Coherence
• Procedural Fairness

Introduction

The rule of law, like democracy, is one of our most basic political commitments. 1 1 See Jeremy Waldron, The Rule of Law and the Importance of Procedure [hereinafter Waldron, Importance of Procedure], in Getting to the Rule of Law 3, 3 (James E. Fleming ed., 2011) [hereinafter Getting to the Rule of Law] (noting rule of law’s place among “constellation of ideals that dominate our political morality”). ... Close While the rule of law is an old ideal, 2 2 See, e.g., Judith N. Shklar, Political Theory and the Rule of Law 1, 2–4, in The Rule of Law: Ideal or Ideology (Allan C. Hutchinson & Patrick Monahan eds., 1987) (describing Aristotle’s account of rule of law). ... Close interest in it has gained renewed energy in recent years in part because it provides a basis for evaluating a wide variety of contemporary institutional arrange­ments. 3 3 See Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 43 (1997) (noting a characteristic purpose is to serve as a basis for evaluating practices—and their distance from ideal). ... Close Some scholars have specified the rule of law’s requirements for adjudicative procedure. 4 4 See, e.g., Waldron, Importance of Procedure, supra note 1, at 18 (providing account of procedure as rule-of-law value). ... Close Others have looked to its complexion in constitutional discourse. 5 5 See, e.g., Fallon, supra note 3, at 24–36 (examining role of invocations of rule of law in constitutional debates). ... Close Some have specified the rule-of-law values for new sets of institutions, such as global administrative institutions, 6 6 See, e.g., Benedict Kingsbury, The Concept of ‘Law’ in Global Administrative Law, 20 Eur. J. Int’l L. 23, 32–33 (2009) (providing account of rule of law for global administrative law). ... Close or new models of government action. 7 7 See, e.g., Leighton McDonald, The Rule of Law in the ‘New Regulatory State’, 33 Common L. World Rev. 197, 215–21 (2004) (evaluating rule of law in light of new governance techniques). ... Close Still others have explored its role in fostering legality in conflict-torn societies. 8 8 See, e.g., Ganesh Sitaraman, The Counterinsurgent’s Constitution: Law in the Age of Small Wars 183–222 (2013) (examining rule of law’s meaning for societies emerging from conflict). ... Close

In light of the scope of lawmaking by administrative institutions—our form of government is, importantly, administrative government 9 9 See, e.g., Congress: Structure and Policy 403 (Matthew D. McCubbins & Terry Sullivan eds., 1987) (“In this century, the nexus of policy making has largely shifted from the constitutionally designated branches of government to the bureaucracy . . . .”); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 575, 580–82 (1984) [hereinafter Strauss, The Place of Agencies] (describing elements of American administrative government). ... Close —the rule of law’s demands of administrative government is a critical area of inquiry. When scholars have addressed how the rule of law applies to the admin­istrative state, the conversation has most often taken two forms. Some scholars have proceeded inductively. They have sought to induce a set of legality principles that structure particular administrative practices or institutions. 10 10 See, e.g., Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security and Disability Claims 213–27 (1983) (providing account of internal legality of Social Security Agency); Nestor M. Davidson & Ethan J. Leib, Regleprudence—at OIRA and Beyond, 103 Geo. L.J. 259, 281–304 (2015) (providing case study of use of precedent and internal law in Office of Information and Regulatory Affairs’s (OIRA) review of agency rulemaking); Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1492–511 (2010) (providing account of use of precedent within Office of Legal Counsel (OLC)). ... Close Following this course, the account of legality constraints operating within the administrative state is built through case studies that distill the operative constraints for particular administrative actors. At the other extreme, work has fastened on the distance between administrative institutions and some historical ideas of the rule of law. 11 11 See, e.g., Philip Hamburger, Is Administrative Law Lawful? 5–7, 12–13 (2014) (challenging legality of administrative state based on historical ideals of rule of law); Friedrich Hayek, The Road to Serfdom 72–87 (1994) (arguing government regulation draws society away from rule of law as traditionally understood). ... Close These scholars conceive of the rule of law in terms of distinctive virtues of judicial or legislative decision and find that administrative institutions pose a problem. But neither the more inductive studies nor the historically rooted efforts devote much consideration to contemporary administrative law—and to the ways in which it does or could provide a specification of the rule of law’s demands. This leaves some basic questions unanswered: In what ways do current administrative law doctrines provide a specification of the rule of law’s requirements of administrative government? Is there an account of our administrative law that pays particular heed to the values of the rule of law?

To venture answers to these questions, one could not imagine a stronger guide than Professor Peter L. Strauss. His insightful scholarship on administrative government and law is comprehensive in scope and, at every turn, deeply engaged with the values that undergird our commit­ments to law. This Essay develops an account of the rule of law’s demands of administrative government by relying on Professor Strauss’s work as a foundation for understanding how administrative law corresponds—or should correspond—to the rule of law’s most basic principles.

This Essay approaches this task in two steps. The first step, under­taken in Part I, is to identify rule-of-law principles that are most relevant to the administrative state. The focus on administrative institutions allows for some principles, such as those pertaining to criminal prohibitions, to be left aside. Other principles, such as the scope of authorization, procedural fairness, and notice, are recurrent issues of concern for administrative institutions and therefore merit greater emphasis. The result of this analysis is a focus on five dimensions of the rule of law: (1) authorization, (2) notice, (3) justification, (4) coherence, and (5) procedural fairness. The second step, in Part II, develops, with the help of Professor Strauss’s work, an account of how administrative law embodies—or should reflect—these principles. What emerges is the outline of an administrative jurisprudence.

The basic elements of that jurisprudence can be summarized as follows. The first dimension, authorization, is the very basic demand that government action have a valid legal source. A starting premise of this administrative jurisprudence is that authorization is personal to the officeholder, rather than an impersonal vesting of power in the govern­ment as a whole. The idea is that each officer vested with legal authority has responsibility to reach an independent judgment about what the statute requires, a judgment not to be supplanted by that of superiors. This responsibility precludes the specter of a bureaucracy dictated by role-based compliance up the chain of command in which only the highest-level official bears genuine accountability. In other words, when role is defined in terms of independent judgment, role-based compliance privileges an official’s independent evaluation over political loyalty or bureaucratic order. If individual judgment by agency officials is a structural premise for the rule of law within the administrative state, then it makes sense that the other aspects of the rule of law will apply to how agency officials exercise their discretion. That holds with regard to the principles of notice, justification, and coherence.

The second dimension, the cluster of values relating to notice—principles of publicity, clarity, prospectivity, and stability prominent in Professor Lon Fuller’s account of law’s virtues 12 12 See Lon L. Fuller, The Morality of Law 46–90 (rev. ed. 1969) (arguing these values are fundamental to law). ... Close —has been thought to pose particular problems for the regulatory state. Regulatory statutes—the statutes that create and delegate to agencies authority to make law—are famously broad and vague. But because notice values seek to protect law’s capacity to guide action, they should apply to the sources of law that directly bind private parties. In our government, that means a critical battleground for these principles is the law issued by agencies because that regulatory law, rather than the legislation authorizing the agencies to act, bears the weight of imposing obligations on private persons. Once these notice values are seen as applicable to the law agencies issue, there are grounds to ask how well agencies are meeting these demands. In this vein, if rules generally fare better with regard to notice values than adjudication, then there are reasons to require agencies to, at a minimum, justify opting for adjudication instead of rulemaking. This focus also suggests agencies have an obligation, when rulemaking is not practicable, to issue some kind of guidance document reflecting the agency’s best view of the statute’s requirements.

The third and fourth dimensions, justification and coherence, also bear on how agencies exercise their judgment. The coherence of law—law constituting an integral system—is not built into the American style of statute-making. As a result, the rule-of-law burden of creating coherence falls upon agencies and courts; they have a responsibility to implement the statutes they administer in ways that promote the coher­ence of law, including implementing their statutes in a way that is consistent with constitutional considerations and other background values. This suggests a rule-of-law basis for understanding agency statu­tory interpretation as involving what scholars have called administrative constitutionalism. 13 13 See Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 522 (2010) [hereinafter Metzger, Ordinary Administrative Law] (providing account of role of constitutional interpretation in agency statutory implementation). ... Close The same holds for the rule-of-law requirement of reasoned justification. If agencies are the primary implementers of statutory law, then law’s demand for justification depends importantly upon their practices. This provides a rule-of-law basis for administrative law’s high demands for reasoned justification.

The final dimension, procedural fairness, makes particular demands of agency adjudicators. While the rule of law does not dictate a particular structure of government—whether parliamentary or separated powers—it does insist on virtues of procedural fairness for adjudicators. The implication is a rule-of-law grounding for insulating adjudicators from political oversight.

Before proceeding, two qualifications are in order. First, a consistent strain of Professor Strauss’s teaching is the importance of contextual understanding of events and legal events in particular. Context comes in, and is deeply informative, at every turn. Accordingly, looking to Professor Strauss’s work with an eye toward specifying a set of rule-of-law principles for administrative governance rests in some tension with his consistent emphasis on contextual understanding, including in case studies. Second, having identified this project, but not one that in so many terms Professor Strauss has directly invited, it should be clear that any of its shortcomings reflect on the present author. Indeed, in places, the Essay highlights the rule-of-law foundations of propositions Professor Strauss defends; at other times it builds upon his ideas to define principles beyond those he has embraced. The hope still is that stepping back in this way will provide a wide lens both for appreciating aspects of Professor Strauss’s contributions, and, at the same time, making some progress toward articulating the broad outlines of the rule-of-law demands of our administrative government.

I. The Dimensions of the Rule of Law

This Part provides a brief account of the ideal of the rule of law and its underlying purposes, and then turns to describe five dimensions of the rule of law particularly salient for assessing administrative governance.

The rule of law retains a place at the center of our political morality; it is an ideal, like democracy, that sits among a small cluster of our most basic commitments. 14 14 Joseph Raz, The Rule of Law and Its Virtue, in Joseph Raz, The Authority of Law: Essays on Law and Morality 210–11 (2d ed. 2009) (noting rule of law’s status as fundamental commitment); Fallon, supra note 3, at 3 (noting centrality of rule of law to our political traditions); Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 3 (2008) [hereinafter Waldron, The Concept and the Rule of Law] (linking rule of law and democracy as basic political commitments). ... Close But in order to identify the elements of this ideal, one needs to have an account of what purposes the rule of law serves. 15 15 See Fallon, supra note 3, at 7 (noting efforts to specify meaning of rule of law begin with identifying values it serves). ... Close In other words, we need to know what the rule of law is for —what values it protects—before we can identify its core principles. 16 16 Martin Krygier, Four Puzzles About the Rule of Law, in Getting to the Rule of Law, supra note 1, at 64, 67 (arguing proper place to start is with question of what rule of law is for prior to evaluating its elements). ... Close

While the purposes of the ideal are contested, it is possible to identify several underlying values common to most accounts of the rule of law. First, perhaps the most basic, is the idea of constraint, which applies to officials as well as citizens. In this regard, the rule of law is frequently identified with decisionmaking confined by some source other than personal preference, ideology, or a personal sense of justice. 17 17 Ronald A. Cass, The Rule of Law in America 17 (2001) (noting importance of external constraint); Waldron, The Concept and the Rule of Law, supra note 14, at 6 (noting common feature of rule of law is that government exercises power “within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong”). ... Close This con­straint protects against arbitrary decisionmaking, which stands in opposition to law. 18 18 See, e.g., Fallon, supra note 3, at 8 (identifying protection against official arbitrariness as purpose of rule of law); Krygier, supra note 16, at 76–81 (identifying avoiding arbitrariness as chief value of rule of law). ... Close Second, law aims to allow people to plan with some measure of confidence in their capacity to know the legal consequences of their actions. 19 19 Fallon, supra note 3, at 8 (noting this purpose). ... Close Thus, law should give private parties adequate notice and be of a form that they can make sense of so that they can conform their conduct to its requirements. 20 20 Waldron, Importance of Procedure, supra note 1, at 18. ... Close Third, law should provide a mechanism for resolving disputes that is fair. 21 21 Id. at 6 (specifying procedures necessary for rule of law). ... Close Even when law is accessible and clear, and even when decisionmaking is suitably constrained, there is independent value in resolving disputes in a manner that is procedurally fair.

Contemporary accounts of the ideal identify elements or principles that embody or carry forward these rule-of-law purposes. 22 22 Fallon, supra note 3, at 8 (noting modern theories defend elements of rule of law from account of its purposes). ... Close In this regard, rule-of-law theories have a tendency toward lists of elements. Professor Fuller, the fount of much modern thought on the rule of law, identifies eight principles as critical to law: (1) generality, (2) publicity, (3) pro­spectivity, (4) clarity, (5) consistency, (6) stability, (7) capacity to be per­formed, and (8) compliance by officials. 23 23 See Fuller, supra note 12, at 46–90 (defending these elements of virtues of law). ... Close Professor Joseph Raz offers an account with a more institutional complexion. In addition to the virtues of stability, openness, and clarity as virtues of law and lawmaking, which have some cognates within Professor Fuller’s principles, Professor Raz also isolates (1) the independence and impartiality of the judiciary, (2) acces­sibility of courts, and (3) confined discretion of crime-preventing authorities. 24 24 See Raz, supra note 14, at 214–18 (noting these values). For an account of Albert Venn Dicey’s conception of the rule of law as a formal and procedural view, see Paul P. Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytic Framework, 1997 Pub. L. 467, 470–74 (distinguishing substantive and procedural conceptions). ... Close In addition to, or instead of these values, others have empha­sized that law be (1) authorized, 25 25 See, e.g., Jeffrey Jowell, The Rule of Law and Its Underlying Values, in The Changing Constitution 3, 17–18 (Jeffrey Jowell & Dawn Oliver eds., 7th ed. 2011) (ebook) (noting rule of law requires public officials act within powers conferred upon them). ... Close (2) coherent or part of a system, 26 26 See, e.g., Waldron, The Concept and the Rule of Law, supra note 14, at 32–36 (noting requirement of systematicity or coherence). ... Close (3) accompanied by justification, 27 27 See, e.g., Waldron, Importance of Procedure, supra note 1, at 6 (arguing rule of law requires action “on the basis of evidence” and “right to make legal argument about the bearing of the evidence”). ... Close and (4) procedurally fair. 28 28 See generally, e.g., Waldron, The Concept and the Rule of Law, supra note 14 (“[T]he Rule of Law is violated when due attention is not paid to . . . procedural matters or when the institutions that are supposed to embody these procedures are undermined or interfered with.”). ... Close

Focusing on the rule of law’s requirements of administrative insti­tutions, some principles can be left to the side and some have greater importance. 29 29 See Fallon, supra note 3, at 6 (noting different values are presumptively primary under different conditions). ... Close Those elements that pertain to criminal sanctions and processes have less relevance, at least if we focus on those aspects of administrative governance that are not involved in criminal justice. Likewise, other general virtues, such as compliance with the law, do not distinctively apply to administrative institutions. The conditions under which administrative bodies operate make other elements of the rule of law more central. The fact that agencies only have authority that has been delegated to them suggests the critical importance of the principle that official action be authorized. The fact that many statutes that dele­gate regulatory authority grant broad discretion to officials suggests the importance of notice, coherence, and justification. If agency officials are creating law under broad standards, they have obligations to do so in ways that provide adequate notice and justification and also respond to the values of coherence. Finally, to the extent that agencies are engaged in adjudication, the values of procedural fairness apply. This suggests focus on the following five elements or dimensions of the rule of law.

(1) Authorization . Authorization is a bedrock principle of liberalism and the rule of law; it ensures that the state only act or constrict an individual’s liberty when authorized to do so. 30 30 See Cass, supra note 17, at 12–13 (identifying valid authority as element of rule of law); McDonald, supra note 7, at 204 (noting as fundamental element of rule of law that political power be authorized); see also Franz Neumann, The Democratic and the Authoritarian State: Essays in Political and Legal Theory 163 (1957) (“[T]he state may intervene with the individual’s liberty—but first it must prove that it may do so.”). ... Close Authorization demands a positive law source that grants power to the government to act. A system that complies with authorization is one in which official acts are within the scope of powers authorized, or not ultra vires

(2) Notice . Many of the most commonly identified features of the rule of law pertain to a cluster of characteristics that help to ensure that law has the capacity to be practical in the sense of providing guidance to an individual’s actions and allowing individuals to plan with some knowledge of the law. The principles of publicity, clarity, consistency, prospectivity, and stability are among the most important of these values. 31 31 See Fuller, supra note 12, 46–90 (arguing for place of these values as central to law’s virtue); Raz, supra note 14, at 214–16 (defending requirement that law be pro­spective, open, clear, and general). ... Close Some of these principles are nearly categorical. There can be no basis to demand compliance with nonpublic or secret laws. To be action-guiding, laws must be knowable and public. Likewise, a retroactive law cannot purport to guide conduct. Some of these values are a matter of degree; it is more difficult to comply with laws that are unclear, inconsistent, or change so quickly that they cannot (reasonably) claim to be capable of guiding action.

(3) Justification. An important strain of thought about the rule of law focuses on the role of justification and argumentation in law. Justification provides protection against arbitrariness; part of what defines arbitrary action is action that is not justified. As Professor Jeremy Waldron writes,

[L]aw is an argumentative discipline, and no analytic theory of what law is and what distinguishes legal systems from other systems of governance can afford to ignore this aspect of our legal practice and the distinctive role it plays in a legal system’s treating ordinary citizens with respect as active centers of intelligence. 32 32 Waldron, Importance of Procedure, supra note 1, at 21–22 (citing Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning 14–15, 26–28 (2005)). ... Close

Or, as Professors David Dyzenhaus and Michael Taggart put it, our legal system reflects “the pull of justification, meaning that public power is considered authoritative when and only when it justifies its exercise to those whom it affects.” 33 33 David Dyzenhaus & Michael Taggart, Reasoned Decisions and Legal Theory, in Common Law Theory 135, 152 (Douglas E. Edlin ed., 2007). ... Close This demand for justification, and thus practices of reason-giving and processes for argumentation, are grounded in law’s respect for human agency and dignity, and treatment of law’s subjects as “bearers of reason and intelligence.” 34 34 Waldron, Importance of Procedure, supra note 1, at 19. ... Close

(4) Coherence. Law presents itself as a system in which norms fit together. 35 35 See Waldron, The Concept and the Rule of Law, supra note 14, at 32–36 (discussing systematicity as legal value). ... Close It is from the perspective of the private party—the individual or firm subject to law’s demands—that coherence matters. “For citizens, law is inevitably an integral system, premised in contemporary social expectations and political judgments; a person interested in her legal obligations looks to the whole environment, not a disordered collection of fragmentary, isolated, mutually independent pieces.” 36 36 Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Sup. Ct. Rev. 429, 442 [hereinafter Strauss, Resegregating]. ... Close This does not say how coherence is achieved, but it does emphasize the importance of viewing coherence from the perspective of the private individual subject to law’s obligations.

(5) Procedural Fairness. A central virtue of the rule of law is procedural fairness, that is, the set of institutional arrangements that provide an unbiased determination of one’s rights and duties through transparent procedures with determinations based on evidence. Here the rule of law joins company with the most basic elements of due process, though it can be more demanding. 37 37 Whereas trial by an elected judge does not violate the Due Process Clause, see Republican Party of Minnesota v. White, 536 U.S. 765, 782–84 (2002) (noting elected judges always face pressure from electorate regarding content of their rulings but rejecting view that Due Process Clause prohibits election of judges), there may be reasons from the perspective of the rule of law to question the impartiality of elected judges. ... Close

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II. Rule-of-Law Principles for Administrative Governance

The question to ask now—with aid from Professor Strauss—is how we can specify these general rule-of-law principles in the context of administrative governance. In what ways are these principles applied in our administrative law? In what way do they ground arguments for an account of that law? This Part takes on that task organized around the five dimensions of the rule of law just discussed.

A. Authorization

Authorization is a central principle of the rule of law and also a central occupation of administrative law. The rule-of-law principle is that government may act and may constrict an individual’s liberty only when authorized to do so. 38 38 See supra note 30 (citing sources and describing authorization as element of rule of law). ... Close That is, government’s actions must be authorized by some valid source. 39 39 See Cass, supra note 17, at 12 (noting valid authorization as element of rule of law). ... Close Within our system of limited government, with a Constitution creating a government of only enumerated powers, an administrative agency only has those powers Congress confers upon it. 40 40 See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”). ... Close Administrative law thus must provide an account of which officials may exercise delegated statutory power and how the scope of that power is to be judged. Professor Strauss’s answers to these widely contested questions have distinctive grounding in rule-of-law considerations and suggest two rule-of-law principles for administrative government. These principles share a common conception of the value of independent legal judgment for administrative officials and for courts.

1. Decisional Allocation . — One pillar of Professor Strauss’s approach to public law is an insistence that decisional allocation—attention to which official has been vested with power—matters to the chances of government in accordance with law. To be clear, the critical issue is not what occurs when one agency exercises powers delegated to another agency. Nor is the principal issue the commonplace practice of subor­dinate officials acting under the general authority and direction of their superiors; that is a simple fact of organizational life. Rather, in the United States, the significant question of decisional allocation arises with respect to the scope of the President’s powers over officials who are delegated powers and vested with nonministerial duties by statute, whether or not they are protected from removal by good cause pro­tections. What power does the President have to legally bind the discretion of, for example, the Secretary of Transportation, the Administrator of the Environmental Protection Agency, or the members of the Securities Exchange Commission?

Professor Strauss is the leading contemporary defender of the view that when Congress imposes duties and grants discretion to offices or agencies, those duties and that discretion are personal to the officeholder. 41 41 See Peter L. Strauss, Foreword: Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704–05 (2007) [hereinafter Strauss, The President in Administrative Law] (arguing in ordinary administrative contexts, where Congress delegates to named agency official, President’s role is supervisor, not decider); see also Strauss, The Place of Agencies, supra note 9, at 649 (arguing Congress has power “to place the responsibility for decision in a department rather than the President”); Peter L. Strauss, Was There a Baby in the Bathwater? A Comment on the Supreme Court’s Legislative Veto Decision, 1983 Duke L.J. 789, 808 (“The legal authority to act is then that of the delegate, and even for indisputably executive agencies the President’s power of direction appears limited in ways that make it difficult to characterize him as the delegate.”). This position has a long history. See, e.g., 1 Op. Att’y Gen. 624 (1823), 1823 WL 538, at 625 (“If the laws . . . require a particular officer by name to perform a duty, . . . no other officer can perform it without violation of the law; and were the President to perform it, . . . he would be violating [the law] himself.”); Edward S. Corwin, The President: Office and Powers 1787–1984, at 94–100 (5th rev. ed. 1984) (arguing duties imposed on named offices are not President’s in part to give Congress a choice to delegate to entity other than President). For other explorations, see, e.g., infra notes 43–44 (collecting sources), as well as Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 539 (1989) (arguing President lacks directive authority when Congress delegates to other officials); Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 25 n.97 (1995) (arguing against President’s directive authority over agencies). ... Close In other words, absent special circumstances, the President does not have legal authority either to supplant that official’s act or to bind the official to a particular action when that official has been granted statutory authority. The power vested by statute is the official’s, not the President’s. As Professor Strauss puts it succinctly, in these cases, the President is the “overseer and not the decider.” 42 42 Strauss, The President in Administrative Law, supra note 41, at 704–05. ... Close This position has both a constitutional and statutory dimension. As to the Constitution, this position rejects the view, commonly associated with a strongly unitary conception of the executive, that the Constitution requires reading any grant of authority to an official as authorizing the President to act in the official’s stead. 43 43 See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 596 & n.210 (1994) (arguing delegations to executive officials should be construed to permit President to exercise officials’ delegated powers directly, for instance, by personally issuing standards of workplace safety in stead of Secretary of Labor). ... Close As to statutory construction, this position takes dele­gations to executive branch officials as well as to independent agencies as vesting power in the chosen official, not the President. 44 44 See Strauss, The President in Administrative Law, supra note 41, 713–17 (arguing delegation to officials does not grant President access to those powers). Others have joined this debate. For arguments that the President has authority to exercise powers delegated to other executive officials, see Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2327–30 (2001) (arguing delegations to executive branch officials authorize President to exercise officials’ powers); Nina A. Mendelson, Another Word on the President’s Statutory Authority over Agency Action, 79 Fordham L. Rev. 2455, 2458–74 (2011) (arguing delegations to executive officials do not imply limit on President’s directive authority). For arguments that the President generally lacks statutory authority to direct the exercise of power granted to other officials, see, e.g., Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963, 1007–11 (2001) (raising statutory, historical, and policy arguments why President lacks directive authority); Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263, 276–99 (2006) (arguing congressional delegation practices undermine inference of implied delegation to President when Congress names another official). ... Close The focus on decisional allocation thus maintains that Congress, in delegating authority, may make a meaningful choice among delegates, including granting power to the President, but also to other officials. 45 45 See Strauss, The President in Administrative Law, supra note 41, at 713 (discussing view that inability of Congress to delegate authority exclusively to executive officials “render[s] it impossible for Congress . . . to leave anything to the specially trained judgment of a subordinate executive official” without risking politicization of official’s decisions (internal quotation marks omitted) (quoting Edward S. Corwin, The President: Office and Powers 1787–1957, at 80 (4th rev. ed. 1957))). ... Close

While this position on decisional allocation has been widely debated in constitutional and statutory terms, it can be seen as grounded in a distinctive set of commitments about the prospects for government under law. “[T]here is a difference between ordinary respect and political defer­ence, on the one hand, and law-compelled obedience, on the other,” Professor Strauss writes; “[t]he subordinate’s understanding which of these is owed, and what is her personal responsibility , has implications for what it means to have a government under laws.” 46 46 Id. at 704 (emphasis added). ... Close The suggestion here is that when an official views her duties under statute as her own, that funda­mentally shapes the “frame of mind” or the “psychology of office” 47 47 Id. at 712–13. ... Close in which the officeholder receives urgings from superiors (and others). At the most basic level, “someone told me to do it” is excluded as a sufficient ground for action by an official vested with delegated power. Such a delegate should generally grant respectful consideration to the views of superiors, but the duty and power of decision are ultimately her own. For a decision to be the official’s own, she must be independently convinced of the action’s legality and appropriateness.

This insistence on decisional allocation thus can be seen as grounded in a pragmatic principle that there is a greater chance of decision in accordance with the law when officials view their duties and powers as personal, requiring their independent judgment, and not subject to supplanting by others. This idea can be put in terms of the definition of role for administrative actors. When the legal role of those delegated statutory power is defined as requiring their independent judgment, the specter of role-based compliance up a chain of command is diminished. Institutionally, this role specification spreads accountability through the bureaucracy. All those with legally delegated authority must exercise their own independent legal judgment; as a result, administrative action will represent the views of many actors, and accountability cannot be confined to the officials at the peak of the institutional hierarchy. These ideas about the foundation for decisional allocation might be formulated in terms of the following rule-of-law principle for administration: Legal authorization (and duty) is relative to officeholders, not an impersonal authorization to government as a whole.

While this principle is articulated at a relatively high level of generality, it takes a stance on the contested question of the President’s powers over law administration. Understanding this legal allocation—that the discretion and duty is personal to the official—clarifies how an official delegated with statutory power is to understand prodding from a President or his immediate advisors. The official is not to take that direction “as a command that she has a legal as well as a political obligation to honor, and for whose justifications she thus has no particular responsibility.” 48 48 Id. at 712. ... Close As opposed to hierarchical military command, the principle of decisional allocation maintains that the dialogue between the President and the agency is necessarily anchored in the requirement of authorization and, consequently, the goals of the under­lying delegating legislation, which are the core positive foundations for statutory law implementation. If the responsibility is the official’s, it is the official who must be convinced and who is ultimately accountable for the decision. The President, then, must persuade the official.

This position does not deny that politically appointed officials are picked and vetted to carry out their duties in accordance with the President’s priorities, 49 49 Cf. Exec. Order No. 12,866, 3 C.F.R. § 4 (1994), reprinted as amended in 3 U.S.C. § 601 app. at 803 (2012) (providing consistency with President’s priorities is part of regulatory planning process); id. § 6(b) (providing OIRA may review agency action for consistency with President’s priorities). ... Close nor that many of them may be fired by the President at will for failing to do so. Nor does it deny that there are relevant differences between the weight of presidential priorities for executive and independent agencies. But it still insists that even for executive officials, as well as those further down the institutional hierar­chy, there is a distinction worth maintaining about whose duty and power is at issue. While this position augments the place of disagreement within the administration, the prospect for disagreement provides an indication and assurance that independent judgment, typically from multiple individuals, has been exercised.

Inquiring into the fundamental rule-of-law demand for author­ization within the administrative context thus reveals the need to make a distinction between authorization as an impersonal grant of powers to government and authorization as delegation to particular officeholders. Viewing obligations as personal to the officeholder opens up a prospect for legal accountability within hierarchical institutions foreclosed by glossing over or denying this distinction.

2. Scope of Authority . — But what is the scope of authority granted? Because agencies only have powers granted to them by statute, the rule of law clearly requires that an agency act within the scope of that delegated power. Indeed, this ultra vires principle—that only authorized action is valid—is, and could be nothing other than, a cornerstone of administrative law.

While all agree that agencies can act only within the scope of their authorization, there is wide disagreement over how that scope is to be determined. This question is at the center of the persisting and generative debate over Chevron and its “first step” inquiry into the statutory permissibility of agency action. Chevron asks the reviewing court to first assess “whether Congress has directly spoken to the precise question at issue.” 50 50 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). ... Close Many view this first inquiry into the scope of statutory authorization as one that a court could only ask de novo without any form of deference to the agency’s position. 51 51 See, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779, 782 & n.7 (2010) (arguing Chevron should be overruled as poorly justified and inconsistent with the Administrative Procedure Act (APA)). ... Close Others, concerned about judicial overreaching and micromanagement of agencies, suggest that delegation of technical and other matters to the agency qualifies the judicial inquiry. 52 52 Cf. Lisa Schultz Bressman, Chevron ’s Mistake, 58 Duke L.J. 549, 555 (2009) (arguing congressional rationale for interpretive delegation should determine level of scrutiny of statute’s meaning). ... Close

On this question, fundamental to the rule of law’s application, Professor Strauss stakes out a middle position that, on the one hand, recognizes the underlying reasons for creation of agencies as part of government and, on the other hand, does not withdraw from the insist­ence on an independent judicial determination of the scope of an agency’s authority. 53 53 See Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “ Chevron Space” and “ Skidmore Weight,” 112 Colum. L. Rev. 1143, 1145, 1150 (2012) [hereinafter Strauss, Deference Is Too Confusing] (noting determination of powers vested in agencies is judicial responsibility). ... Close Professor Strauss takes as fundamental that the structure of government—a structure created by law—should inform the way in which courts approach the task of determining the legality of the government action they review. His account thus offers a description of the shape of ultra vires review for the administrative context.

Professor Strauss is clear that the question of the scope of an agency’s authority—that is, whether an agency is acting within its “boundaries” 54 54 Id. at 1150. ... Close —is ineluctably and appropriately an issue for inde­pendent judicial evaluation. 55 55 See, e.g., Kenneth A. Bamberger & Peter L. Strauss, Chevron ’s Two Steps, 95 Va. L. Rev. 611, 611 (2009) (noting Chevron ’s step-one question of scope of power granted is for independent judicial judgment); Strauss, Deference Is Too Confusing, supra note 53, at 1165 (noting scope of powers vested to agency is matter to be judicially determined); Peter L. Strauss, Overseers or “The Deciders”—The Courts in Administrative Law, 75 U. Chi. L. Rev. 815, 819 (2008) [hereinafter Strauss, Courts in Administrative Law] (“ Chevron step one is the terrain of independent (albeit perhaps influenced) judicial judgment . . . .”). ... Close But he is equally clear that independent judicial judgment does not exclude—and indeed should include—a court giving “weight” to the agency’s judgment. “The lines defining an agency’s Chevron space must be judicially determined, a determination that is, irreducibly, a statement of what the law is. But that unmistakably judicial determination should be informed by agency judgments in ways that have been conventional at least since 1827.” 56 56 Strauss, Deference Is Too Confusing, supra note 53, at 1165; Strauss, Courts in Administrative Law, supra note 55, at 818 (explicating precedential grounding for this position); see also Peter L. Strauss, In Search of Skidmore , 83 Fordham L. Rev. 789, 796 (2014) [hereinafter Strauss, In Search of Skidmore ] (“One can readily agree . . . that [w]hether Congress has conferred such power is the relevant question[] . . . that must be answered before affording Chevron deference, without . . . having to agree that whether an agency enjoys that authority must be decided by a court, without deference to the agency.” (alterations in original) (internal quotation marks omitted)). ... Close In short, courts should review whether the agency has acted within the scope of its authority—the Chevron step-one question—by according Skidmore weight to the agency’s judgments. 57 57 See Strauss, Deference Is Too Confusing, supra note 53, at 1153–56 (invoking Skidmore weight in reference to formulation of deference in Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944)). ... Close Skidmore weight regards “the rulings, interpre­tations and opinions” of the agency as representing “a body of experi­ence and informed judgment to which courts and litigants may properly resort for guidance,” depending on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to per­suade, if lacking power to control.” 58 58 Skidmore , 323 U.S. at 139–40. ... Close

Professor Strauss defends this position as the best reading of prece­dent but also the approach that makes most sense of the agency’s position in government. 59 59 As to precedent, Professor Strauss reminds us that judicial review of agency action did not begin with Chevron or the APA, and that Chevron actually provided an awkward reformulation of principles well established at the time. See Strauss, Deference Is Too Confusing, supra note 53, at 1161–63 (suggesting Chevron fits awkwardly with prior leading decisions). Pre–APA judicial review comprehended that independent judicial review of the agency’s authority, even when understood as an exclusive judicial function, did not prevent giving due consideration to the “contemporaneous construction of a statute by the men [and women] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” Id. at 1155 (internal quotation marks omitted) (quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933)). Pre–APA review also recognized that when the agency had been allocated authority to establish policy, the court’s role in reviewing agency actions falling within the boundaries of its authority was of oversight and supervision. See id. at 1159–61 (explicating rule of reviewing court under NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111 (1944)); see also Strauss, Courts in Administrative Law, supra note 55, at 818 (same). Professor Strauss argues that lines of current judicial doctrine have unsettled these understandings reflected in the APA by assuming that independent review excludes giving weight to the agency’s view. See Strauss, In Search of Skidmore , supra note 56, at 796 (criticizing City of Arlington on this ground). ... Close Congress vests the agency with the statutory duty to definitively implement the statutory scheme and to make sense of it in relation to other laws. 60 60 See Strauss, Deference Is Too Confusing, supra note 53, at 1146 (observing agencies have authority to act definitively and responsibility to implement statute in coherent way). ... Close The justification for granting agencies’ views binding authority within their powers does not vanish when the question is the scope of the agency’s powers. 61 61 See id. (arguing agency’s responsibilities and authority justify granting Skidmore weight in judicial determination of scope of its powers). ... Close In other words, the fact that a statute allocates interpretive authority to the agency to specify the statute’s meaning does not undermine, but rather provides grounds for taking seriously the agency’s views about the scope of that authority. This perspec­tive thus emphasizes the categorization of these issues for the purposes of judicial review—for instance, determining the scope of authority as opposed to review of acts within that scope—should not sweep aside the underlying continuity that it is the same official or agency acting.

This middle position provides a specification of ultra vires review for administrative governance. Acting within the scope of legal authorization is too basic to government under law to evade independent judicial review. But the structure of that review should reflect, not contradict, the underlying place of the agency within government. Accordingly, the justification for a court recognizing that the agency has been vested with power to decide authoritatively within its sphere of powers—a justifi­cation drawing from congressional choice and agency experience—does not vanish when the question is the scope of those powers. In this sense, the court’s commitment to ensuring compliance with the law is not disconnected from an understanding of the legal system as a whole, and the place of the agency within it. This specification could be seen as founded on a more general rule-of-law principle for administrative government: that the shape of ultra vires review should reflect the under­lying legal allocation of authority, such that independent review may still involve respectful consideration of the views of those delegated power in the first instance.

This understanding of the judicial role has deep roots in public law in the United States. In particular, it has strong parallels to Professor James Thayer’s classic position on the narrow role of courts in reviewing the constitutionality of legislation. 62 62 See generally James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 140 (1893) (developing early theory of role of courts in review of legislation for constitutionality). ... Close Professor Thayer argued that with regard to the “momentous” power of judicial review of the consti­tutionality of legislation, courts should grant Congress’s views respect because Congress has been expressly entrusted by the Constitution with the exercise of legislative powers, “not merely of enacting laws, but of putting an interpretation on the constitution which shall deeply affect the whole country, enter into, vitally change, even revolutionize the most serious affairs.” 63 63 Id. at 136. ... Close For Professor Thayer, this “respect” was not a matter of mere courtesy, but based on “very solid” grounds of “policy and law.” 64 64 Id. ... Close The Constitution’s entrusting to Congress not merely the power of preliminary or provisional action but presumptively final action, 65 65 Id. at 135 (“[C]onstitutions not merely intrust to the legislatures a preliminary determination of the question, but [also] contemplate that this determination may be the final one . . . .”). ... Close for Professor Thayer, narrows the judicial role. 66 66 Id. at 135–36 (observing power of “putting an interpretation on the constitution which shall deeply affect the whole country” is given to legislature, and, as a result, legislature’s determinations warrant respect). ... Close Much the same logic applies with regard to judicial review of the scope of an agency’s powers. While agencies lack the direct electoral connection of Congress, under many statutory delegations, their actions, too, are presumptively final. Accord­ingly, respect for their judgments is not merely a matter of courtesy, but also grounded in law. Giving agencies’ views “weight” even in the determination of their authority offers fidelity to the law in Professor Thayer’s sense—it recognizes that the allocation of respon­sibility is to the agency to act with presumptive finality. In short, how authority is judged is a function in part of how it is initially allocated.

As Professor Strauss acknowledges, this perspective confronts chal­lenges today. Independent judicial review of an agency’s action is often reflexively understood to exclude giving the agency’s view any weight. 67 67 Strauss, In Search of Skidmore , supra note 56, at 795–96 (noting City of Arlington Court assumed Chevron ’ s first step could not involve any form of deference to agency’s views). ... Close To take one example, consider how the Supreme Court understands the judicial task in Chevron ’s first step. As Professor Strauss writes, both the majority and the dissent in City of Arlington v. FCC 68 68 133 S. Ct. 1863 (2013). ... Close pass over the possibility that one of the traditional tools of statutory interpretation applicable at the first step of the Chevron inquiry is according some weight to the agency’s views. 69 69 See Strauss, In Search of Skidmore , supra note 56, at 795–96 (critiquing City of Arlington on this ground). ... Close Instead, both opinions take independent judicial inquiry to exclude weight to the agency’s views. 70 70 Id. (observing this view among opinions in City of Arlington ). ... Close As a result, Skidmore ’s advice to give due weight to the agency’s views is made relevant only outside of Chevron ’s application instead of within it. What is lost is a prospect for greater accommodation of the underlying allocation of legal authority within the framework of judicial review.

3. Conclusion . — Viewing together these two principles of authorization—decisional allocation and deference as to scope—reveals an interesting commonality as to the value of independent legal judg­ment for administrative governance. Independent judgment appears as a virtue that applies to a wider range of legal officials but permits greater consideration of the views of others than many suppose. The principle of decisional allocation is premised in part on the idea that independent judgment is a fundamental value in the executive branch and an unavoidable duty of executive officials, not just a virtue reserved for courts or only particular “independent” agencies. Thus the duty has wide application. At the same time, exercising independent judgment does not preclude giving weight to the views of other actors—regardless of whether that independent judgment is exercised by an executive branch official or a court—and so is less demanding than some assume. This view thus sees an underlying commonality in the legal duties of agency officials and courts; both labor under the burdens of independent judgment, but under the rule of law, such laboring does not require isolation or excluding due consideration of others’ views.

At the center of most accounts of the rule of law is a cluster of formal characteristics that assist law in guiding individuals’ actions. 71 71 See, e.g., Fuller, supra note 12, at 53 (“Law has to do with the governance of human conduct by rules.”); Fallon, supra note 3, at 8 (“The first element [of the rule of law] is the capacity of legal rules . . . to guide people in the conduct of their affairs.”). ... Close Principles of publicity, clarity, consistency, prospectivity, and stability are among the most important. 72 72 See Fuller, supra note 12, at 46–90 (defending publicity, prospectivity, clarity, consistency, and stability as among requirements for law); Raz, supra note 14, at 214–16 (arguing law must be prospective, open, clear, and general). ... Close To the extent the law falls short of these principles, it is difficult to maintain that individuals have reasonable notice.

Administrative government has been thought to pose particular challenges for this cluster of formal values. In particular, scholars argue that delegation of lawmaking authority in extremely broad terms to agencies undermines these notice values. 73 73 See, e.g., Hayek, supra note 11, at 75–76 (arguing rule of law requires government be “bound by rules fixed and announced beforehand” and is therefore undermined by “discretion left to the executive organs”). ... Close As a result, in the admin­istrative context, the first issue is to clarify the type of law to which these principles apply. This section first argues that these notice principles apply to law that binds the public, which in our system is frequently the rules and other law produced by agencies. Based on that premise, this section then discusses two further implications. If rulemaking fares better than adjudication with regard to these notice values, then these principles may impose a prima facie obligation on agencies to engage in rulemaking. In addition, it argues that agencies also have an obligation to issue prospective guidance as a second-best option when rulemaking is not practicable.

1. The Locus of Notice Demands . — If these notice principles of the rule of law—publicity, clarity, consistency, prospectivity, and stability—apply directly to regulatory legislation, such legislation fails to comply in several important respects. A basic feature of our administrative govern­ment is broad legislative delegations to administrative officials and agencies, delegations that are not only broadly worded but also do not impose obligations directly on private parties—characteristics for which Professor Edward Rubin proposes the term “intransitive.” 74 74 Edward L. Rubin, Law and Legislation in the Administrative State, 89 Colum. L. Rev. 369, 380–85 (1989). ... Close Modern legislation “in its essence is an institutional practice by which the legis­lature, as our basic policy-making body, issues directives to the govern­mental mechanisms that implement policy.” 75 75 Id. at 372; see also Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States 106 (2d ed. 1979) (“Obviously modern law has become a series of instructions to administrators rather than a series of commands to citizens .”). ... Close To be sure, Congress does enact some statutes that impose obligations directly on private persons, and some statutes are written with a great deal of specificity. But as administrative lawyers and political scientists have long recognized, the vast weight of modern legislation “regulates the behavior of government agencies, not the conduct of private persons.” 76 76 Rubin, supra note 74, at 376; see also David Epstein & Sharyn O’Halloran, Delegating Powers: Transaction Cost Politics Approach to Policy Making Under Separate Powers 5 (1999) (noting broad delegation characterizes modern administrative state); McCubbins & Sullivan, supra note 9, at 403 (“[T]he nexus of policy making has largely shifted from the constitutionally designated branches of government to the bureaucracy . . . .”). ... Close As opposed to creating primary obligations for private parties, regulatory statutes structure the processes, means, and considerations for agencies. These familiar features of regulatory statutes have important consequences for rule-of-law principles of notice: If the legal system’s compliance with these values depends upon the text of regulatory statutes, we would be forced to conclude either that the system dramatically falls short of these principles or that these principles require revision. 77 77 Professor Rubin argues in this vein that “[w]hen a transitive statute is enforced by an agency, our normative system simply does not make the demands that Fuller perceives.” Rubin, supra note 74, at 399. ... Close

The same result does not follow, however, when we understand these notice principles, as Professor Strauss argues, as “obligation[s] applicable to the system” 78 78 Peter L. Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 Colum. L. Rev. 427, 445 (1989) [hereinafter Strauss, Comments on Rubin]. ... Close as opposed to regulatory legislation itself. On this view, “[t]he agency’s development and enunciation of administrative policy” provide the specification of what the law demands of private parties. 79 79 Id. ... Close This position—that we should ask how agency actions imposing obli­gations on private parties comply with these formal rule-of-law values—has strong theoretical foundations. As noted above, a fundamental aspect of law is that it provides guidance as to the behavior of private parties—it aims to impose practical obligations. To be action-guiding, however, law must be accessible, consistent, reasonably clear and stable, and pro­spective. 80 80 See, e.g., Fuller, supra note 12, at 53 (“To speak of governing or directing conduct today by rules that will be enacted tomorrow is to talk in blank prose.”). ... Close Based on the premise that these principles of the rule of law seek to protect law’s action-guiding qualities, it makes sense that these notice demands apply to agency action that binds private parties, and not merely to delegating legislation. Accordingly, principles of notice properly apply to agency action that creates binding obligations for private parties as well as those aspects of statutes that do so. The system as a whole is thus still on the hook for satisfying these formal demands. But these demands apply to legal sources that bind the public, which include, significantly, the rules and decisions issued by administrative agencies.

At a practical level, this insight defuses some lines of challenge to administrative governance that fix upon legislation as the focus of these rule-of-law values. 81 81 See, e.g., Hayek, supra note 11, at 80–81 (arguing broad delegation threatens rule of law). ... Close But more importantly, recognizing that these formal values apply to all sources of law governing private conduct in society frames as a critical inquiry how well agencies comply with these principles in their lawmaking. In other words, a critical element of administrative agencies’ compliance with the rule of law is the ways in which their lawmaking embodies the values of publicity, prospectivity, clarity, and so on—that is, Professor Fuller’s demands of law need to be brought into agency trenches.

Professor Strauss has long insisted on the fundamental rule-of-law requirements of publicity for agency action 82 82 See, e.g., Peter L. Strauss, Rules, Adjudications, and Other Sources of Law in an Executive Department: Reflections on the Interior Department’s Administration of the Mining Law, 74 Colum. L. Rev. 1231, 1238–40 (1974) [hereinafter Strauss, Rules, Adjudications, and Other Sources of Law] (arguing internal organizational structure and operating procedures should be published and internal operating manuals be publicly available). ... Close and has been at the vanguard of a forceful critique of agencies’ reliance on private standards, not practically accessible without a fee, in their regulations. 83 83 See Peter L. Strauss, Private Standards Organizations and Public Law, 22 Wm. & Mary Bill Rts. J. 497, 560 (2013) (summarizing publicity norms when agencies incorporate private standards); see also Emily S. Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Pol’y 131, 153 (2013) (providing assessment of public access problem for standards incorporative by reference in federal rules); Nina A. Mendelson, Private Control over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737, 800 (2014) (arguing for full digital access without charge to private standards incorporated by reference into agency rules). ... Close But questions of the requisite clarity, prospectivity, and stability required of regulations and other agency actions remain areas for further explo­ration as part of the project of specifying the rule of law’s demands of administrative governance.

2. Implications for “Choice” Among Policymaking Forms . — Many agencies may implement their statutes in a variety of policymaking forms. 84 84 See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1383, 1386 (2004) [hereinafter Magill, Agency Choice of Policymaking Form] (noting agencies may implement statutes by rule, adjudication, or announcing interpretation). ... Close Agencies may promulgate rules, conduct adjudications, issue interpretive statements or guidance documents, compile and publish enforcement manuals, create permitting schemes, conduct auctions, make grants, create pilot projects, engage in research, and so on. Whether a policy is implemented through rulemaking or adjudication often results from organizational and institutional dynamics within the agency more than it follows from a single decisionmaker’s conscious choice. 85 85 See Strauss, Rules, Adjudications, and Other Sources of Law, supra note 82, at 1258 (exposing how organizational dynamics, not singular agency judgments, led to rulemaking or adjudication within Department of Interior). ... Close It is nonetheless still coherent to ask agencies as institutions to develop structures for making informed allocations among policymaking forms.

Different policymaking forms fare better and worse than others with regard to these rule-of-law notice principles. As Professor Strauss notes, case-by-case adjudications, especially when unguided by strong agency internal policy, are not only costly but can threaten “undesirable variation in individual cases.” 86 86 Peter L. Strauss, The Rulemaking Continuum, 41 Duke L.J. 1463, 1482 (1992) [hereinafter Strauss, Rulemaking Continuum]. ... Close More generally, adjudicative decisionmaking processes, like common law processes, strain this cluster of rule-of-law virtues. 87 87 See Frederick Schauer, Is the Common Law Law?, 77 Cal. L. Rev. 455, 455 (1989) (reviewing Melvin A. Eisenberg, The Nature of the Common Law (1988)) (“[C]entral features of common law method appear inconsistent with some of the primary assumptions of a traditional view of the rule of law.”). ... Close In common law adjudication, “rules [are] created in the very process of application” and thus apply “retroactively to facts arising prior to the establishment of the rule.” 88 88 Id. ... Close As to values of prospectivity, clarity, publicity, and generality, common law adjudication often fares worse than prospective legislation. These same deficits would also seem to apply to administrative adjudication in comparison to rulemaking.

Based on the assumption that not all procedural forms are created equal with regard to their compliance with formal rule-of-law princi­ples—and, more specifically, that rulemaking is generally preferable—those principles should supervene on how the agency allocates its activities among procedural forms. Well-established judicial doctrine effectively bars courts from second-guessing the agency’s choice about the best policymaking form to use. 89 89 See SEC v. Chenery Corp. ( Chenery II ), 332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”). ... Close Indeed, as Dean Elizabeth Magill has highlighted, the agency’s discretion to opt for different policymaking forms remains an exception to the general requirement that the agency exercise its discretion in a reasoned way. 90 90 See Magill, Agency Choice of Policymaking Form, supra note 84, at 1415 (“There is simply no such reason-giving requirement imposed on an agency when it selects its choice of form.”); see also, e.g., Chenery II , 332 U.S. at 203 (“Hence we refuse to say that the Commission, which had not previously been confronted with the problem of management trading during reorganization, was forbidden from utilizing [adjudication] for announcing and applying a new standard of conduct.”). To put the point in the shorthand of students of administrative law, the discretion to select among policymaking forms that the Supreme Court embraced in its Chenery II decision is an exception to the reason-giving requirements of its Chenery I opinion. See SEC v. Chenery Corp. ( Chenery I ), 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”). ... Close Under current law, the agency does not need to offer a justification for its choice among alternative procedural forms.

The diversity of agencies’ organizational structures and the practical necessity of gaining more information about a regulatory environment before developing a rule, among other considerations, 91 91 See Magill, Agency Choice of Policymaking Form, supra note 84, at 1445–47 (arguing courts can address concerns related to agency’s choice of form through other doctrines); Strauss, Rules, Adjudications, and Other Sources of Law, supra note 82, at 1265–66 (arguing against requirement that agencies formulate policy through rules). ... Close counsel against constricting established judicial tolerance for agency choice among policymaking forms with a requirement that agencies utilize rulemaking to the fullest extent possible. But the rule-of-law benefits of rulemaking over adjudication do impose some obligation on the agency. One minimal way that obligation might be specified is an obligation that the agency justify its choice of procedural form. 92 92 See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 544 (2003) (suggesting agencies should be required to justify opting for procedures other than rulemaking). ... Close Such a requirement of justification, whether or not judicially enforceable, 93 93 A useful analogy is the Regulatory Flexibility Act’s requirement that the agency provide a “regulatory flexibility analysis” that includes “a statement of the need for, and objectives of, the rule,” 5 U.S.C. § 604 (2012), published in the Federal Register . 5 U.S.C. § 604(a)(6), (b). These requirements are “[p]urely procedural” and so “require[] nothing more than that the agency file a [final regulatory flexibility analysis] demonstrating a ‘reasonable, good-faith effort to carry out [RFA’s] mandate.’” U.S. Cellular Corp. v. FCC, 254 F.3d 78, 88 (D.C. Cir. 2001) (quoting Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir. 2000)). ... Close would create the occasion for agencies to self-consciously evaluate their chosen policy­making form relative to others available. The agency might justify its choice to proceed through adjudication, for instance, because it does not yet know enough about how the statute impacts the regulated community to make a general rule, or based on considerations of timing. But the requirement to make some comparative assessment to justify its choices bridges internal agency silos and requires the agency make a deliberate decision in light of the full complement of its powers. If not all policymaking forms are created equal, and if agencies can adopt structures that allow for deliberation over policymaking forms, 94 94 Professor Strauss has cautioned that the search for mandatory controls of the allocation of policymaking between adjudication and rulemaking is illusory in part because many agencies do not have an effective mechanism for choice. See Strauss, Rules, Adjudications, and Other Sources of Law, supra note 82, at 1274–75. As a result, he has disagreed with efforts to mandate this choice, see id. at 1265 (arguing adjudicative function cannot be limited to fact-finding and adjudication and inevitably involves policy choice). Justification of policymaking choice is a more minimal demand, though one that does open the door to judicial second-guessing of agency practices. ... Close a requirement to justify the choice of form is a modest means of enforcing these rule-of-law values of notice.

3. Obligation to Issue Guidance . — Attention to these notice values also has implications for guidance documents. Guidance documents include interpretations and policy statements of statutes and regulations that do not have the authority to bind with the force of law, but may instruct agency officials how to set forth the agency’s interpretation of a statute or regulation, or exercise their discretion under a statutory scheme. 95 95 A commonly used definition of a guidance document is that appearing in President Bush’s (now repealed) executive order on guidance. See Exec. Order No. 13,422, 72 Fed. Reg. 2763(3)(g) (2007) (defining guidance document as “agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue”); see also Connor N. Raso, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 Yale L.J. 782, 785 n.1 (2010) (using this definition and noting others’ reliance on same). ... Close Agency reliance on guidance documents has prompted considerable criticism and calls for increased scrutiny. 96 96 E.g., Non-Codified Documents Is the Department of Labor Regulating the Public Through the Backdoor?: Hearing on H.R. 3521 Before the Subcomm. on Nat’l. Econ. Growth, Nat. Res., & Regulatory Affairs of the H. Comm. on Gov’t. Reform, 106th Cong. 1–4 (2000) (examining Labor Department’s guidance practices); Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1373 (1992) (arguing agencies should proceed through notice-and-comment for any rule of general applicability other than mere interpretations if rule is given effect by agency or establishes mandatory standards). ... Close

But guidance documents can have significant rule-of-law benefits. As Professor Strauss observes, “The usual interface between a member of the public and an agency does not involve the agency head, but a relatively low-level member of staff . . . .” 97 97 Strauss, Rulemaking Continuum, supra note 86, at 1482. ... Close That interface is rife with the possibility of inconsistency in application, and thus raises questions about how best to channel the bureaucrat’s discretion. The public and those regulated, Professor Strauss argues, would generally prefer a regime where lower-level bureaucrats are bound to apply instructions issued publicly in the form of guidance documents, even though those instructions do not themselves “bind” the public and were not issued through notice-and-comment. 98 98 Id. at 1483. ... Close In short, published guidance documents that specify how agencies will exercise their discretion have clarity, consistency, and publicity benefits to the public and those regulated—they create a form of internal law that structures the agency’s decision­making. 99 99 See id. (“[T]hese satisfied consumers of publication rules tend not to appear in court . . . .”). See generally Mashaw, supra note 10, at 213, 223–24 (characterizing internal law within Social Security Administration as providing this form of constraint). ... Close By educating the public about how the agency intends to act or its understanding of its powers, such guidance documents also “permit[] important efficiencies to those who must deal with government.” 100 100 Strauss, Rulemaking Continuum, supra note 86, at 1481. ... Close The notice benefits of published guidance suggest that agencies have an affirmative obligation to issue guidance documents that provide the public and the regulated with the agency’s best statement of how the agency plans to apply its statutory and regulatory sources, especially when rulemaking is not practicable. In short, the public and regulated would “prefer having publication rules to not having them,” 101 101 Id. at 1480. ... Close and that preference is importantly grounded in rule-of-law values.

Recognizing a prima facie obligation to issue guidance is particularly timely. For years, under the principles of Alaska Professional Hunters Ass’n v. FAA 102 102 177 F.3d 1030 (D.C. Cir. 1999). ... Close and Paralyzed Veterans of America v. D.C. Arena L.P. , 103 103 117 F.3d 579 (D.C. Cir. 1997). ... Close an agency could alter authoritative guidance only through a new notice-and-comment rulemaking. Professor Strauss criticizes this doctrine as a poor reading of the Administrative Procedure Act (APA) and because of the constraint it inserts between the central agency and its field offices; effectively, it inhibits lower-level officials from issuing prospective guidance by requiring the agency act through rulemaking to undo it. 104 104 See Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803, 846–47 (2001) (noting how doctrine has effect of binding superiors to field office guidance). ... Close In March 2015, the Supreme Court’s decision in Perez v. Mortgage Bankers Ass’n overruled Paralyzed Veterans and Alaska Professional Hunters . 105 105 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (indicating overruling). ... Close As a result, agencies no longer face a disincentive to issue and to reevaluate and update their guidance to ensure that it reflects the agency’s best understanding of the statutory scheme. Perez thus clears the way for agencies to comply with this rule-of-law obligation to provide a prospective statement of the agency’s best understanding of the law in guidance when rulemaking is not practicable.

4. Conclusion .   — Consideration of how these rule-of-law principles of notice apply in the administrative context yields one theoretical point and emphasizes the importance of several other projects. The theoretical point is that these rule-of-law demands are appropriately applied to law that binds private parties, and so frequently the law agencies produce, not agencies’ authorizing statutes. This theoretical point saves the admin­istrative state from the kind of condemnation that results from applying these values to regulatory legislation. But this point also brings into focus a sequence of more specific inquiries. First, it suggests the need for scholars as well as policymakers to evaluate agency rules and adjudications with regard to these Fullerian virtues, a project Professor Strauss has initiated. Second, in view of rulemaking’s general superiority with respect to these values, this theoretical point suggests an obligation for agencies to justify their choices when implementing policy outside of rulemaking. Third, it suggests that when rulemaking is impracticable, agencies have an obligation to provide guidance conveying their best understanding to the public of how their statutes and regulations operate.

C. Justification

The demand for justification is a central feature of administrative law and the work of administrative agencies. The difficult question is the extent to which the proceduralization of these requirements ends up undermining the aspiration that the agency’s justification for its actions follows from and responds to public participation.

At a formal level, administrative institutions are the paradigm of reason-giving institutions. Indeed, reason-giving requirements emerged for administrative agencies before courts imposed them, putting pressure on courts to fall in line. 106 106 See Dyzenhaus & Taggart, supra note 33, at 145 (showing mandated reason-giving arose for agencies before courts). We tend to think of argumentation and reasoned deci­sionmaking as having their historical and conceptual core in common law courts, with administrative actors coming to reason-giving later in time. Professors David Dyzenhaus and the late Michael Taggart argue to the contrary: The requirement for reason-giving was formalized for administrative decisionmakers who in turn “put pressure on judges to bring themselves into line with the trend toward legally enforceable reasoned elaboration.” Id. ... Close Administrative law has long taken agencies’ reasoned elaboration of grounds for their action as necessary to the validity of agency action and imposed higher duties of reasoned elabo­ration on agencies than on other government actors, such as lower courts or Congress. 107 107 See Kevin M. Stack, The Constitutional Foundations of Chenery , 116 Yale L.J. 952, 955 (2007) (observing higher reason-giving demands apply in review of agency action than review of lower court judgments or of legislation). ... Close Longstanding principles of administrative law require that agency action be upheld only on the basis of the grounds upon which the agency justified its action, treating reliance on post hoc justifications as exceptional. 108 108 Id. (providing account of foundation of Chenery I principle that agency action cannot be upheld unless upon grounds upon which agency acted in exercising its power). ... Close The APA also imposes procedural requirements that agencies state the reasons for their action, whether they are acting through notice-and-comment rule­making, 109 109 5 U.S.C. § 553(c) (2012) (requiring agency produce “concise general statement” of basis and purpose of regulations). ... Close formal adjudication, 110 110 Id. § 557 (requiring decider to state reasons for decision). ... Close or otherwise. 111 111 Id. § 555(e) (stating brief statement of grounds of denial is necessary and self-explanatory). ... Close Part of the way in which administrative law guards against arbitrary agency action is through these requirements of reason-giving and judicial review of agency action under the “arbitrary and capricious” standard. 112 112 Id. § 706(2)(A) (requiring reviewing courts to hold unlawful agency action that is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law”). ... Close Whatever the rule of law requires by way of reasoned justification appears to be already part of administrative law and built into the way admin­istrative agencies do business.

These principles of reasoned justification have a close connection to the principles of authorization discussed above. The requirement of justification reinforces the principle of decisional allocation by requiring reasons, not just action, from the decider. Requiring reasons makes it more difficult to evade the responsibility for independent judgment; indeed, developing reasons takes the decider a long way toward exercising independent judgment. In addition, when reasoned elabo­ration operates in company with the principle of decisional allocation, it is clear that the duty to give reasons is not a general requirement of reasons to be given by government but a requirement of reasons from the person responsible for the action. When viewed in this light, part of the problem with a President having the power to legally direct an agency’s action is that this direction would sever the connection between the agency’s action and its justification. It would result in an agency action without the agency’s own justification. If valid agency action requires justification, then the President must not simply direct the agency but rather convince the agency official of a particular action in terms of the official’s own duties under the statute. Within those terms, the encounter becomes one of persuasion based on reasons, reasons that the agency official has an independent duty to evaluate.

Reasoned elaboration also underlies the deference—or weight—given to agencies by courts and others. As Professors Dyzenhaus and Taggart write, “[T]o require reasons from such [administrative] officials is to imply that they have an important role in interpreting the law, a role that judges with others should respect as long as the officials do a decent job of justifying their decisions.” 113 113 Dyzenhaus & Taggart, supra note 33, at 165. ... Close Reasoning might be thought of as the coin by which agencies pay for deference. 114 114 See Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355, 399 (2012) (noting role of reason-giving as basis for judicial deference to agencies). ... Close

While justification may be well reflected in administrative law’s current demands for reasoned elaboration, difficult questions arise with regard to the connection between justification and genuine opportu­nities for participation. In principle, the rule-of-law value of argumentation is not just a demand for the public official or body to provide their own oracular justification, but also to provide a justification that is the product of a participatory process through which stakeholders have an opportunity to present their positions to the government policymakers. The justification is the culmination of a procedure and participation, not a substitute for it. But, with regard to agency rulemaking, requiring the justification be informed by participation raises familiar, thorny issues when that requirement becomes judicially enforceable. On the one hand, judicial enforcement of an agency’s duty to engage commentators can empower those within the agency that care most about reasoned justification. “[A]gency officials cannot know who their judicial reviewers will be,” as Professor Strauss writes, so they cannot “bend their science to particular supposed judicial tastes.” 115 115 Strauss, Courts in Administrative Law, supra note 55, at 829. ... Close As a result, anticipating that there will be a judicial hard look at their decisions has the effect of endowing “those who care about well-documented and well-reasoned decisionmaking a lever with which to move those who do not.” 116 116 Id. (internal quotation marks omitted) (quoting William F. Pederson, Jr., Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 60 (1975)). ... Close There are thus strong reasons to be reluctant to “give that lever up.” 117 117 Id. ... Close On the other hand, at least in the context of rulemaking, when probing judicial review is combined with the requirement that an agency’s rule not depart significantly from its proposals, the agency will do most substantive vetting of their proposals with select stakeholders prior to public opportunities to comment. 118 118 Professor Strauss made this observation about the Department of Interior in 1972, see Strauss, Rules, Adjudications, and Other Sources of Law, supra note 82, at 1252–53, and now scholars acknowledge this phenomenon as a weakness of rulemaking practices. See, e.g., E. Donald Elliott, Re-Inventing Rulemaking, 41 Duke L.J. 1490, 1492 (1992) (suggesting no administrator turns to notice-and-comment when he or she is genuinely interested in obtaining input from interested parties). A recent study of ninety hazardous-air-pollutant standards set by the U.S. Environmental Protection Agency (EPA) by Wendy Wagner, Katherine Barnes, and Lisa Peters provides an illustration. Wendy Wagner, Katherine Barnes & Lisa Peters, Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards, 63 Admin. L. Rev. 99 (2011). The study measured the influence of industry, consumer groups, and the public in the formulation of the proposed rules (during the pre-proposal stage) and the impact of their comments on the final rules. With respect to these rules, EPA had on average 178 contacts with interest groups during the development of the proposal, prior to the publication of the proposed rule—more than double the average number of comments received on these rules. See id. at 124. Industry and industry associations had, on average, 170 times more informal communications in the pre-proposal stage than public interest groups. See id. at 125. ... Close Accordingly, a challenge for judicial review of rulemaking is to incentivize well-documented and justified decisions while also making the public process one in which meaningful engagement is possible.

The rule-of-law demand for justification thus has two different faces in the administrative context. On the one hand, if the principle is concerned with detailed justification of the grounds for action, admin­istrative agencies and administrative law are models. On the other hand, a challenge of justification, especially with regard to notice-and-comment rulemaking, is to find a way to combine participation with judicial review that does not end up contradicting the purposes of public participation.

D. Coherence

Law presents itself as a system in which norms fit together. 119 119 See Waldron, The Concept and the Rule of Law, supra note 14, at 33 (positing coherence as dimension of rule of law). ... Close What does law’s claim to coherence demand of administrative governance? In view of the American style of statute-making, this demand for coherence falls on agencies as well as courts, requiring agencies to engage in a synthetic and integrating form of statutory interpretation.

1. Locus of the Demand for Coherence . — In thinking about this demand for systemic coherence in a legal system, it matters what type or source of law predominates. Statutes have long been recognized as a dominant form of law. 120 120 See, e.g. Strauss, Resegregating, supra note 36, at 442 (noting this fundamental point). ... Close And in the United States, statutory law has a distinctive character. It does not take the form of a civil code. A civil code purports to provide an integrated and comprehensive statement of the governing norms. 121 121 See Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225, 235 (1999) [hereinafter Strauss, Common Law and Statutes] (noting civil codes “emerge in a single legislative act, after exquisite intellectual consideration, as an integrated whole” and “are rarely if ever amended; and if amended, only after equivalent study and attention to the integrated effects of change”). ... Close As a result, the demand for coherence in a country with such a code falls heavily on the drafters and adopters of the code. In the United States, in contrast, statutes have less comprehensive ambitions; they offer specific directions to specific problems, and, even within that more limited domain, they frequently bear clear marks of political bargaining. 122 122 See id. at 240 (“[O]ur legislative process is an essentially reactive, pragmatic process, and not a proactive or rational one.”). ... Close

This basic contrast between a civil code and the more responsive, ad hoc, situational, and overtly political character of legislation in the United States has clear implications for the legal institutions most responsible for creating law’s coherence. If systemic coherence is not built into the legislative process and drafting, then it falls to the institutions with responsibility for interpreting and implementing statutory law, namely administrative agencies and courts. To the extent that pursuing and realizing this value of systemic coherence invariably involves synthesis and constructive judgment, we can expect coherence to ground a role for statutory implementers that involves bringing a wide range of judgment to bear, in the mode of a common law court, even when dealing with statutory materials.

2. The Agency’s Duty of Systemic Coherence .  — Professor Strauss provides a vivid picture of the situation of the agency implementing its statutory mandate, which describes the agency’s basic duty to do so in a way that creates coherence. 123 123 See Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi.-Kent L. Rev. 321, 329–30 (1990) [hereinafter Strauss, Agency Interpretations] (characterizing this duty). ... Close The agency, as Professor Strauss explains, faces distinctive demands to mediate between past and present commitments. The agency staff frequently plays a role in drafting its own enabling legislation. 124 124 See Strauss, Deference Is Too Confusing, supra note 53, at 1146 (describing agency involvement in drafting organic statutes). ... Close The agency’s task is delimited and anchored by that statutory text as well as guided by the set of understandings, forged in part through its legislative history, which informs “what the statute has ‘always’ been understood to mean.” 125 125 Strauss, Agency Interpretations, supra note 123, at 330. ... Close Yet the agency’s implementation of the statute is by design responsive to contemporary political overseers. At times, the views of an agency’s political overseers will overwhelm the agency’s evolving understanding of the statute and its requirements. 126 126 See id. at 331 (noting this eventuality). ... Close But even when that influence is only supervisory, it is understood to appropriately and legitimately shape the agency’s approach. As Professor Strauss writes, “what distinguishes agencies from courts in the business of statute-reading is that we accept a legitimate role for current politics in the work of agencies.” 127 127 Id. at 335. ... Close As a result, the agency’s job is in part to provide as much coherence as possible between past commitments, 128 128 Cf. Michael Herz, Purposivism and Institutional Competence in Statutory Interpretation, 2009 Mich. St. L. Rev. 89, 104 (noting agencies are “closer to the legislative process” and “have a keener sense” of the process’s compromises and limits). ... Close reflected in the statute and the agency’s past practices, on the one hand, and current policy preferences on the other. Of course, there are sometimes abrupt changes in rules, but even then the agency’s job (or duty) is to expose the coherence of the statutory regime underlying those changes.

This points to a larger respect in which the agency faces a demand for coherence. As many regulatory statutes are intransitive, 129 129 See supra note 74 and accompanying text (characterizing administrative government as involving broad delegations to administrative officials). ... Close agencies have distinctive lawmaking powers. Faced with a broad range of judgment, the agency’s “responsibility is to assist in . . . implementation in a coherent, intelligible way.” 130 130 Strauss, Deference Is Too Confusing, supra note 53, at 1146. ... Close One might view the duty of coherence as a necessary feature of tolerating broad delegation. Just as the agency does not have Congress’s prerogatives of obscurantism, 131 131 See United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“[A]gencies do not have quite the prerogative of obscurantism reserved to legislatures.”). ... Close the agency also cannot avoid the duty to implement statutory power in a way that shows how the statute fits together, creating an integrated set of legal require­ments. This coherence is one of the most basic demands judicially enforced through arbitrary-and-capricious review.

Does this duty of coherence apply only to making sense of the agency’s particular statutory powers or does it include a broader obligation to read the statute in light of the legal system as a whole? Professor Strauss’s rendering of the agency’s obligations to achieve coherence within its statutory domain has provided a foundation for other scholars to examine the agency’s broader duties to incorporate constitutional and background legal norms within its reasoning. As part of the inquiry into administrative constitutionalism, Professor Gillian Metzger highlights agencies’ obligation to take constitutional norms seriously when imple­menting statutes, as well as their institutional competence to do so. 132 132 See Metzger, Ordinary Administrative Law, supra note 13, at 522 (defending constitutional interpretation as part of agencies’ role and competence). ... Close Professor Kenneth Bamberger also defends agencies’ capacity to take into account broad background norms, including the constitutional implications of their decisions. 133 133 See Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 96–97 (2008) (defending agencies’ capacity to engage and incorporate background values). ... Close This broader duty fits with the techniques of statutory interpretation developed by Henry Hart and Albert Sacks. 134 134 See Kevin M. Stack, Purposivism in the Executive Branch: How Agencies Interpret Statutes, 109 Nw. L. Rev 871, 911–13 (2015) (arguing agency statutory interpretation should include Hart and Sacks’s element of integrating statutory obligations with Constitution and background values). ... Close Underlying Hart and Sacks’s work is the premise that agencies’ duties as actors within our constitutional scheme require them to read their statutes in light of underlying constitutional commitments and thus to seek systemic coherence within our system of government, rather than mere statutory coherence.

This emphasis on agencies’ duty to take into account the value of systemic coherence does not provide a complete account of what coherence involves and could be subject to different specifications. Some define statutory coherence with more emphasis on its textual features and others with greater emphasis on its policy context. But recognizing this duty clarifies that the demand for coherence should be evaluated from the perspective of the individual or firm that is subject to law’s obligations. That perspective on the private party anchors legal develop­ment within a set of social expectations and political judgments. This perspective also provides a foundation for the agency to incorporate its understanding of the Constitution among the considerations that bear on statutory implementation. In sum, given the limited integral aspira­tions of legislation in the United States, agencies have a particular responsibility, grounded in the rule-of-law value of coherence, to implement their statutory scheme in a way that makes it intelligible in light of their statutory powers, surrounding statutory law, as well as constitutional and background legal values.

E. Procedural Fairness

The rule of law does not require or endorse any particular model of division or balance of governmental powers. It is consistent with parlia­mentary government and presidential systems that divide election of the executive and legislature. But it does make demands on the structure of agency adjudications. At a most basic level, the rule-of-law value of proce­dural fairness requires an impartial decider in adjudications. 135 135 See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 617 (1993) (plurality opinion) (“[D]ue process requires a ‘neutral and detached judge in the first instance . . . .’” (quoting Ward v. Monroeville, 409 U.S. 57, 61–62 (1972))); see also Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding one component of due process is opportunity to rebut factual assertions before neutral decisionmaker). ... Close This basic demand has implications for the organization of administrative adjudi­cation. In particular, it suggests separation of personnel; those who investigate and prosecute should not also decide. The principle of separa­tion of persons—and in particular the separation of enforcement staff from those who decide—is enforced by the APA, though not completely. 136 136 The APA requires separation of the agency’s adversarial enforcement staff from its adjudicative decisionmakers as a matter of personnel, oversight, and communications. See 5 U.S.C. § 554(d) (2012) (providing employees engaged in adversarial investigation or prosecution may not “participate or advise in the decision, recommended decision, or agency review . . . except as witness or counsel in public proceedings”); id. § 554(d)(1) (stating hearing officers “may not consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate”). Section 554(d) also includes a “command influence rule,” which prohibits agency adjudicators from being “responsible to or subject to the supervision or direction of an employee [who] engage[s] . . . in investigative or prosecuting functions for an agency.” Id. § 554(d)(2). But the APA does not mandate this separation for agency heads, who may hear appeals from initial adjudicators and are generally vested with the powers of initial decisionmakers. See id. § 554(d)(2)(C) (“This subsection does not apply . . . to the agency or a member or members of the body comprising the agency.”). ... Close

Impartiality (and its appearance) is also threatened when an adju­dicator faces the prospect of removal based on the merits of his or her decisions. This suggests a rule-of-law foundation for removal protections for adjudicators. This protection is clearly evident in the Supreme Court’s tolerance for—and even implication of—removal protections for those agency officials who adjudicate. As Professor Strauss explains, upholding of removal protections for the Federal Trade Commission (FTC) in Humphrey’s Executor v. United States 137 137 295 U.S. 602 (1935). ... Close is explicable as a grant of removal protections for a body engaged in adjudicative, quasi-judicial tasks. 138 138 See Strauss, The Place of Agencies, supra note 9, at 613–16 (“The Court [in Humphrey’s Executor ] was acutely conscious, however, of the extent to which the Commission acted in circumstances calling for judicial impartiality and the removal from politics that might tend to protect it.”); see also Harold H. Bruff, Balance of Forces: Separation of Powers Law in the Administrative State 425 (2006) (noting FTC’s adjudicative functions provide ground for upholding agency’s removal protections). ... Close

The principle that adjudicative decisionmaking powers justify good-cause removal protections finds further support in Wiener v. United States . 139 139 357 U.S. 349 (1958). Recent scholarship has explored internal separation of powers in agencies. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316–17 (2006) (lamenting “paucity of thought” regarding nature of checks on executive branch and identifying bureaucratic agencies as “critical mechanism to promote internal separation of powers [in the executive branch]”); M. Elizabeth Magill, Can Process Cure Substance? A Response to Neal Katyal’s “Internal Separation of Powers,” 116 Yale L.J. Pocket Part 125 (2006), http://yalelawjournal.org/forum/can-process-cure-substance-a-response-to-neal-katyala8217s-a8220internal-separation-of-powersa8221 [http://perma.cc/7BBD-8DDL] (insisting “[w]e already have an internally divided executive . . . characterized by bureaucratic overlap, independent agencies, and perennial complaints by Presidents about their inability to control the bureaucracy”); Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 436 (2009) (discussing constitutionality of “vast majority of internal separation of powers mechanisms within the Executive Branch”). Long before the rise of interest in the “internal separation of powers” in agencies, Professor Strauss identified separation of functions as a distinctive strain of separation-of-powers jurisprudence. Whereas traditional separation-of-powers models are concerned with the allocation of government institutions among the branches and the implications that follow from those placement decisions, separation of functions is concerned, for instance, with asking about “what combinations of functions or impacts of external influence will interfere with fair resolution of a particular proceeding.” Strauss, The Place of Agencies, supra note 9, at 622. ... Close Even though the statute at issue in Wiener was silent as to removal protections, 140 140 Wiener , 357 U.S. at 350. ... Close the Court held that the President lacked authority to remove a member of the War Claims Commission without cause. The Court emphasized that the Commission’s task was “adjudicat[ion] according to law,” which involved reaching decisions “on the merits of each claim, supported by evidence and governing legal considerations, by a body that was ‘entirely free from . . . control or coercive influence, direct or indirect.’” 141 141 Id. at 355–56 (quoting Humphrey’s Ex’r , 295 U.S. at 629). Further highlighting the grounds for protecting adjudicators from at-will removal, the Wiener Court emphasized that Humphrey’s Executor had “explicitly ‘disapproved’ the expressions in Myers [ v. United States ] supporting the President’s inherent constitutional power to remove members of quasi-judicial bodies.” Id. at 352 (citing Humphrey’s Ex’r , 295 U.S. at 626–27). The Court in Myers distinguished quasi-judicial powers but made clear that even when engaging in adjudication, decisions not to the liking of the President would still be grounds for subsequent removal. See Myers v. United States, 272 U.S. 52, 117–18, 134 (1926) (stating power to appoint and remove executive subordinates is “certainly . . . not . . . legislative or judicial” and that “moment [President] loses confidence in the intelligence, ability, judgment or loyalty of any one of them, he must have the power to remove him without delay”). While the President may be restricted from removing an official discharging quasi-judicial functions in the midst of a particular case, the Myers Court wrote, the President “may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised.” Id. at 135. ... Close

While it is possible to read the Supreme Court’s most recent removal decision as weakening the principle that adjudicative tasks are a sufficient justification for removal protection, 142 142 See Kevin M. Stack, Agency Independence After PCAOB , 32 Cardozo L. Rev. 2391, 2409–10 (2011) (noting PCAOB exercised adjudicative task and so adjudication alone was not viewed as sufficient basis for removal protection). ... Close the principle is still solidly en­trenched and reflects a core element of the rule of law, namely that the impartiality of adjudication is enhanced when the adjudicator does not act under “the Damocles’ sword of removal by the President” 143 143 Wiener, 357 U.S. at 356. ... Close  based on the content of their decisions. And indeed, today most initial adjudicators within administrative agencies are administrative law judges who enjoy good-cause protection from removal. 144 144 See 5 U.S.C. § 7521 (2012) (noting actions against administrative law judges may only be taken for good cause). Removal of administration law judges is vested in the Merit Systems Protection Board, whose members are themselves protected from removal from office by a good-cause provision. See id. § 1202(d) (“Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”). ... Close That structural protection is an element of the demands of the rule of law on internal agency organization—and provides reasons to guard against further weakening of removal protections for adjudicators.

Evaluating administrative law through the lens of these five dimen­sions of the rule of law exposes some long-established practices as having troublesome rule-of-law foundations and reveals that other contested practices are well grounded in rule-of-law values. The closest match between the rule-of-law principles and current doctrine and practice is justification; administrative law and practice represents as well as any domain of law the sense in which law is ultimately argumentative.

The idea that agencies have duties to assist in integrating statutory law into the larger fabric of law, and thus to be partners with courts in implementing the law in a coherent fashion, while not as well-established as the agency’s duties of reasoned elaboration, is steadily gaining recog­nition. This analysis highlights the rule-of-law foundation for that duty.

With respect to notice principles, more groundbreaking work is required. Some of it will take the form of holding agencies to the basic principles of notice, as current scholarship has done with regard to the fundamental value of publicity in agency rules. Further work could also form an executive or judicial requirement for agencies to justify their decision when they opt not to proceed through rulemaking, a departure from long-settled law. It could also usefully involve embracing or even imposing a duty upon agencies to issue, in the form of guidance, their best general statement of the law’s requirements when rulemaking is not practicable.

Perhaps the most controversial analysis pertains to the principle of authorization. Both principles—decisional allocation within the executive branch and courts giving weight to agencies’ views of the scope of their own authority—have waxed and waned in terms of their embrace in the law. Today these positions, at least based on intimations from the Supreme Court, may be on the wane. If so, there is all the more reason to highlight the ways in which officials conceive of their statutory obligations as personal anchors and reinforces the government’s commitment to the law. And once so conceived, the grounds for recognizing that independent review—whether for agency officials or courts—does not require es­chewing respectful consideration of the positions of other government officials become all the stronger.

Law provides benefits to society but also poses risks. Some view those risks as amplified when courts or administrative agencies conceive their roles too broadly. Professor Strauss views those risks as amplified when courts and agencies conceive their roles too narrowly. This assessment is not fundamentally grounded in an expansive view of the size of the state, but rather in the scope of law’s demands on judicial and administrative agents. For Professor Strauss, agencies and courts have arduous duties. They are tasked with making sense of the issue before them while resolving it in a way that integrates it into the larger fabric of law; this frequently requires considering the intelligibility of statutory law, its relationship to other law, and the current context. The exercise of that duty also requires justification and engagement with those affected. Because the duties of government are personal, they create a system of accountability—accountability through the repeated reliance on individual judgment. Recognizing duties of that wide scope may be part of what enables a society to accommodate change without abandoning its best structure. 145 145 See Strauss, Common Law and Statutes, supra note 121, at 255 (second alteration added) (“[W]hat we mean by law . . . [is] [t]he process by which a society accommodates to change without abandoning its fundamental structure.” (internal quotation marks omitted) (quoting Grant Gilmore, The Ages of American Law 14 (1977))). ... Close

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The Case Study Teaching Method

It is easy to get confused between the case study method and the case method , particularly as it applies to legal education. The case method in legal education was invented by Christopher Columbus Langdell, Dean of Harvard Law School from 1870 to 1895. Langdell conceived of a way to systematize and simplify legal education by focusing on previous case law that furthered principles or doctrines. To that end, Langdell wrote the first casebook, entitled A Selection of Cases on the Law of Contracts , a collection of settled cases that would illuminate the current state of contract law. Students read the cases and came prepared to analyze them during Socratic question-and-answer sessions in class.

The Harvard Business School case study approach grew out of the Langdellian method. But instead of using established case law, business professors chose real-life examples from the business world to highlight and analyze business principles. HBS-style case studies typically consist of a short narrative (less than 25 pages), told from the point of view of a manager or business leader embroiled in a dilemma. Case studies provide readers with an overview of the main issue; background on the institution, industry, and individuals involved; and the events that led to the problem or decision at hand. Cases are based on interviews or public sources; sometimes, case studies are disguised versions of actual events or composites based on the faculty authors’ experience and knowledge of the subject. Cases are used to illustrate a particular set of learning objectives; as in real life, rarely are there precise answers to the dilemma at hand.

Our suite of free materials offers a great introduction to the case study method. We also offer review copies of our products free of charge to educators and staff at degree-granting institutions.

For more information on the case study teaching method, see:

• Martha Minow and Todd Rakoff: A Case for Another Case Method
• HLS Case Studies Blog: Legal Education’s 9 Big Ideas
• Teaching Units: Problem Solving , Advanced Problem Solving , Skills , Decision Making and Leadership , Professional Development for Law Firms , Professional Development for In-House Counsel
• Educator Community: Tips for Teachers

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The Rule of Law

The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter phrase is used to designate some particular legal rule like the rule against perpetuities or the rule that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.

The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights. But these are much more controversial (see section 1 below). And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires.

1. One Ideal among Others

2. the contestedness of the rule of law, 3.1 aristotle, 3.2 john locke, 3.3 montesquieu, 4. rule of law and rule by law, 5.1 formal aspects, 5.2 procedural aspects, 5.3 substantive theories, 6. the values underlying the rule of law, 7. opposition to the rule of law, 8.1 discretion, 8.2 rules and standards, 8.3 law and social norms, 8.4 emergencies, 8.5 international law, 8.6 development and nation-building, 9. the rule of law and the concept of law, other internet resources, related entries.

The Rule of Law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom. The plurality of these values seems to indicate that there are multiple ways in which social and political systems can be evaluated, and these do not necessarily fit tidily together. Some legal philosophers (e.g., Raz 1977) insist, as a matter of analytic clarity, that the Rule of Law in particular must be distinguished from democracy, human rights, and social justice. They confine the focus of the Rule of Law to formal and procedural aspects of governmental institutions, without regard to the content of the policies they implement. But the point is controversial. As we shall see, some substantive accounts have been developed, which amount in effect to the integration of the Rule of Law with some of these other ideals.

The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc , or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.

But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others. Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law such as rule by general norms (rather than particular decrees); rule by norms laid down in advance (rather than by retrospective enactments); rule by norms that are made public (not hidden away in the closets of the administration); and rule by clear and determinate legal norms (norms whose meaning is not so vague or contestable as to leave those who are subject to them at the mercy of official discretion). But these are not necessarily what ordinary people have in mind when they call for the Rule of Law; they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favor of liberty.

Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system. For some the common law is the epitome of legality; for others, the Rule of Law connotes the impartial application of a clearly drafted statute; for others still the Rule of Law is epitomized by a stable constitution that has been embedded for centuries in the politics of a country. When Aristotle ( Politics 1287b), contrasted the Rule of Law with the rule of men, he ventured the opinion that “a man may be a safer ruler than the written law, but not safer than the customary law”. In our own era, F.A. Hayek (1973: 72 ff.) has been at pains to distinguish the rule of law from the rule of legislation, identifying the former with something more like the evolutionary development of the common law, less constructive and less susceptible to deliberate control than the enactment of a statute. There is also continual debate about the relation between law and the mechanisms of government. For some, official discretion is incompatible with the Rule of Law; for others it depends on how the discretion is framed and authorized. For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts (particularly a politically divided court) is as much an instance of the rule of men as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies).

The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies. Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries like Zimbabwe and Afghanistan at the bottom (see Other Internet Resources ). The criteria can be hardly be described as rigorous. But people in business value these rankings as part of their estimation of country risk for foreign investments (see Barro 2000: 215ff.)

3. History of the Rule of Law

The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage. The heritage of argument about the Rule of Law begins with Aristotle (c. 350 BC); it proceeds with medieval theorists like Sir John Fortescue (1471), who sought to distinguish lawful from despotic forms of kingship; it goes on through the early modern period in the work of John Locke (1689), James Harrington (1656), and (oddly enough) Niccolò Machiavelli (1517); in the European Enlightenment in the writings of Montesquieu (1748) and others; in American constitutionalism in The Federalist Papers and (and even more forcefully) in the writings of the Federalists’ opponents; and, in the modern era, in Britain in the writings of A. V. Dicey (1885), F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph Raz (1977), and John Finnis (1980), and in America in the writings of Lon Fuller (1964), Ronald Dworkin (1985), and John Rawls (1971). Because the heritage of this idea is so much a part of its modern application, a few highlights need to be mentioned.

The work of Aristotle on the Rule of Law is still influential. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question ( Politics 1282b)

But Aristotle did maintain that law as such had certain advantages as a mode of governance. Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. Moreover,

laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. ( Rhetoric 1354b)

There were, he conceded, some cases so fraught with difficulty that they could not be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia (sometimes translated as equity). But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of. Aristotle’s discussion of the general desirability of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994).

John Locke in the second of his Two Treatises of Government (1689) emphasized the importance of governance through “established standing Laws, promulgated and known to the People”. He contrasted this with rule by “extemporary Arbitrary Decrees” (Locke 1689: §§135–7). Now the term “arbitrary” can mean many different things. Sometimes it means “oppressive”. But when Locke distinguished the rule of settled standing laws from arbitrary decrees, it was not the oppressive sense of “arbitrary” that he had in mind. In this context, something is arbitrary because it is extemporary: there is no notice of it; the ruler just figures it out as he goes along. It is the arbitrariness of unpredictability, not knowing what you can rely on, being subject, as Locke put it (1689: §137), to someone’s

sudden thoughts, or unrestrain’d, and till that moment unknown Wills without having any measures set down which may guide and justifie their actions.

In Locke’s story, one of the things that people wanted to get away from in the state of nature was being subject to others’ incalculable opinions—even when those others were thinking as hard and rigorously as they could about natural law. Your thinking might be different from my thinking, and it might turn out that your view of the relation between your interests and my interests and your property and my interests might be quite different from my view of the matter and quite different again from the view of the next person I came across. The whole point of moving from a state of nature to a situation of positive law was to introduce some predictability into this picture.

Unfortunately, having laid down this requirement, Locke complicated matters by adding a substantive principle of respect for private property: “The Supream Power cannot take from any Man any part of his Property without his own consent”, and any law that purports to do so is of no validity (Locke 1689: §138). But then there is a difficulty. Though Locke gave us his own theory of prepolitical property rights—the so-called “Labor Theory” in Chapter Five of the Second Treatise —it was itself far from uncontroversial. People in our day, as in his, disagree about the rival claims of labor and occupancy; they disagree about the background of common ownership; and they disagree about how much anyone may appropriate and how sensitive his appropriation must be to the needs of others. We disagree about all that—in ways that were made evident, for example, in the debates about the Lockean theory of Robert Nozick (1974). And Locke and his contemporaries disagreed too; Locke knew, and signaled in a number of places that he knew just how controversial all this was (Tully 1980: 64 ff; for Locke’s awareness of the controversies, see Waldron 1999: 74–5).

By insisting therefore that positive law is subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty. Because the natural right of property was controversial, so the administration of any substantive constraint along these lines was bound to be controversial. And because the substantive constraint was supposed to affect the validity of positive law (Locke 1689: §135), the effect would be that some people—let’s say those who disagreed with Locke about the claims of labor over occupancy—would disagree with him about which positive rules of property are valid and which are not.

Montesquieu’s work on the Rule of Law is best known in connection with his insistence on the separation of powers—particularly the separation of judicial power from executive and legislative authority (see Montesquieu 1748: Bk. 11, Ch. 6). The judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers. Montesquieu’s views on the separation of powers had a profound effect on the American founding, particularly in the work of James Madison ( Federalist Papers , §47).

Elsewhere in The Spirit of the Laws , Montesquieu developed a theory of the value of legalism. Noting that despotic governments tend to have very simple laws which they administered peremptorily with little respect for procedural delicacy, Montesquieu argued that legal and procedural complexity tended to be associated with respect for people’s dignity. He associated this sort of respect with a monarchy ruling by law, as opposed to despotism:

In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries. The fastidiousness of the judge grows as more issues are deposited with him, and as he pronounces upon greater interests. (Montesquieu 1748: Bk. VI, ch. 1, p. 72)

This emphasis on the value of complexity—the way in which complicated laws, particularly laws of property, provide hedges beneath which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258–69).

In the modern debate we also hear echoes of the doctrine propounded in The Spirit of the Laws (1748: Bk. 26, ch. 15, p.510) that “things that depend on principles of civil right must not be ruled by principles of political right”. “Civil right”—Montesquieu’s word for what we call private law—is, he said, “the palladium of property”, and it should be allowed to operate according to its own logic, not burdened with the principles of public or political regulation. A failure of the Rule of Law in this regard is likely to lead to the impoverishment of an economy, as expectations collapse, and owners’ incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, ch. 14, p. 61).

Writing in the second half of the 19 th century, Albert Venn Dicey bemoaned what he saw as a decline in respect for the Rule of Law in England. The Rule of Law used to be a proud tradition that distinguished governance in England both from the executive domination of droit administratif in France and also from the fatuous and abstract certainties of paper constitutions in countries like Belgium etc. For Dicey, the key to the Rule of Law was legal equality:

[W]ith us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. (1992 [1885]: 114)

Attractive as this is in the abstract, it exhibited a certain naivety so far as the legal position of state officials was concerned. Officials are and often need to be treated differently in law than the ordinary citizen: they need certain extra powers and they need to be hemmed in by extra restrictions, so that they can be held accountable for the actions they perform in the name of the community. For the ordinary person, the Rule of Law generates a presumption in favor of liberty: everything which is not expressly prohibited is permitted. But for the state and its officials, we may want to work with the contrary presumption: the state may act only under express legal authorization.

Dicey had a knack of expressing the Rule of Law in terms of principles whose eloquent formulations belied their deeper difficulties. His first principle of the Rule of Law was:

[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. (Dicey 1992 [1885]: 110)

This seems fine if we are talking about the imposition of criminal sanctions. But “made to suffer in … goods” can also be read to connote the imposition of restrictions on the use of personal or corporate property, or the giving or withholding of licenses, grants, and subsidies. It can be read as precluding any form of discretionary regulation. Dicey was indeed inclined to disparage all administrative discretion, particularly where it seemed to be superseding what had traditionally been regarded as judicial functions. But can we really do without discretion in modern governance? Some modern scholars of administrative law have denounced Dicey’s account as an “extravagant”, “absurd”, and pernicious version of the Rule of Law (Davis 1969: 27–32).

F.A. Hayek was by training an economist, but he also nurtured an interest in the relation between legal structures and forms of national economy. Hayek’s work on the Rule of Law proceeded in two phases: (1) from his wartime book The Road to Serfdom (1944) through to The Constitution of Liberty (Hayek 1960); and (2) the somewhat different account presented in his trilogy, Law, Legislation and Liberty (1973), an account which is more congenial to the spirit of common law and hostile to the role of legislation.

(1) Governance during wartime necessarily required total mobilization and management of all of the society’s manpower and resources. Hayek warned in 1944 against the retention of anything like this mode of administration in peacetime. He made an eloquent argument that in normal times a society need not be managed but should be governed—and its people largely left to their own devices—within a framework of general rules laid down in advance. These rules would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of government as to what the particular effects of their application would be. But this lack of particular knowledge on the part of the government would be offset by the fact that rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be molested by the state, provided they operated within the parameters of the general and impersonal rules. Human freedom, on Hayek’s account, did not preclude all state action; but it does require that state action be calculable.

(2) In the 1970s, Hayek began to rethink all this. The attention was still on the implications of Rule of Law for liberty. But now Hayek began to wonder whether the texts of clear general legislated rules would really provide an appropriate framework for freedom. It was, he said, a mistake to think that “by confining the judge to the application of already articulated rules we will increase the predictability of his decisions”. Articulated rules are “often a very imperfect formulation of principles which people can better honour in action than express in words” (Hayek 1973: 118). He favored something more like a common law model of predictability, with principles and solutions emerging from a series of judicial decisions in an almost evolutionary way. [ 1 ] The evolution of principles that distinguished themselves by their reasonableness was superior, Hayek thought, to the deliberate imposition of rules by a legislator. According to Hayek, the legislative mentality is inherently managerial; it is oriented in the first instance to the organization of the state’s own administrative apparatus; and its extension into the realm of public policy generally means an outward projection of that sort of managerial mentality with frightful consequences for liberty and markets.

Lon Fuller believed that government in accordance with the forms and procedures of law had a distinctive value that could help close the gap of separation between positive law, on the one hand, and morality and justice on the other. The conventional wisdom of the legal positivists held that laws could be impeccably drafted and even-handedly administered and still be hideously unjust: antebellum slave law in the United States and apartheid law in South Africa were often cited as examples. But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice. He believed that “coherence and goodness [had] more affinity than coherence and evil”, he thought bad things happened in the dark as opposed to the sunlight of legality, and he maintained that “even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law” (Fuller 1958: 636–7).

Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law:

When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law. (Fuller 1958: 660)

In his 1964 book The Morality of Law , Fuller formulated principles of what he called “the inner morality of law”—principles requiring that laws be general, public, prospective, coherent, clear, stable, and practicable—and he argued that these were indispensable to law-making. Reviewing Fuller’s book, H.L.A. Hart (1965) asked in what sense these principles could be called a “morality”. They seemed to be more like instrumental principles for effective legislation, and on Hart’s view, they were only as moral as the enterprise they made possible.

Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: what they made possible was a mode of governance that worked through ordinary human agency rather than short-circuiting it through manipulation or terror. This thesis was separate from the connection between law and morality intimated in Fuller 1958. But the two accounts of the moral significance of law were connected in a way that John Finnis explained:

A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt. (1980: 273)

Fuller’s work on the Rule of Law had one last nuance. He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the 1960s. In modern political economy, said Fuller, we face problems of institutional design “unprecedented in scope and importance”. Focusing more on the procedural side of the Rule of Law, Fuller insisted that we lawyers acknowledge that although “[a]djudication is a process with which we are familiar and which enables us to show to advantage our special talents”, still it may be “an ineffective instrument for economic management” (Fuller 1964: 176).

Some theorists draw a distinction between the Rule of Law and what they call rule by law (see e.g., Tamanaha 2004: 3). They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example.

Thomas Hobbes may be seen as a theorist of rule by law. In a society whose members disagree about property, he thought it conducive to peace for the sovereign of a society “to make some common Rules for all men, and to declare them publiquely, by which every man may know what may be called his, what anothers” (Hobbes 1647: Bk. II, ch. 6, sect. ix). But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects (Hobbes 1991 [1651]: 184).

However, the distinction may not be so clear-cut. Even rule by law seems to imply that rulers accept something like the formal discipline of legality. Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Rule by law “can be a way a government … stabilizes and secures expectations” (Goodpaster 2003: 686). Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: the latter are assured that the promulgated rules are the ones that will be used to evaluate their actions (see also Winston 2005: 316).

Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda. They take seriously the ancient idea that we might be ruled by laws and not by men. One may ask: how is that supposed to happen? After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers (Epstein 2011). Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others. No doubt there is a lot of mythology in this. A more realistic view of common law identifies it with the deliberate and arbitrary rule of an entity that Bentham (1792) called “Judge & Co”. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state.

As we saw in the discussion of Hayek (1973), the other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials. Legislation is a matter of will . The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative.

However, most people who value the Rule of Law do not accept this approach. If a statute is properly drafted (if it is clear, intelligible and expressed in general terms) and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law. Indeed that is what many scholars mean by the Rule of Law: people being governed by measures laid down in advance in general terms and enforced equally according to the terms in which they have been publicly promulgated. The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.

No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action. But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede (see Waldron 2002: 142–3 and 147–8).

5. Formal, Procedural and Substantive Requirements

Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises. These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values.

The best known are the eight formal principles of Lon Fuller’s “inner morality of law”: (1964; see also the lists in Finnis 1980: 270–1; Rawls 1999: 208–10; and Raz 1979 [1977]: 214–18) generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct.

So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form. It is compatible with invidious discrimination so far as its substance is concerned, since even a norm like “A person who is of African descent must sit in the back of any public bus that they ride on” applies, universalizably, to everyone. A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.

Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out (1979 [1977]: 213) the generality requirement is usually taken to mean that “the making of particular laws should be guided by open and relatively stable general rules”. These rules themselves should operate impersonally and impartially.

Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. It requires that laws be public and that they be promulgated well in advance of individuals’ being held responsible for complying with them. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: (i) they impose requirements for ordinary citizens to comply with; and (ii) they issue instructions to officials about what to do in the event of non-compliance by the citizens. Laws that are secret and retroactive so far as (i) is concerned may still operate effectively in respect of (ii). So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account.

The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical (Weber 1968 [1922]: 882–95) and the lay-person will often require professional advice as to what the law requires of him. It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires. In the nineteenth century, Jeremy Bentham (1782: ch. 15 and 1792) criticized customary law in general, and common law in particular, for failing to satisfy this requirement: the sources of law were hidden in obscurity and though there were spurious appeals to precedent, much of the law was just made up by the judges as they went along.

We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve (I have adapted this list from Tashima 2008: 264):

• a hearing by an impartial and independent tribunal that is required to administer existing legal norms on the basis of the formal presentation of evidence and argument;
• a right to representation by counsel at such a hearing
• a right to be present, to confront and question witnesses, and to make legal argument about the bearing of the evidence and the various legal norms relevant to the case; and
• a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it.

Arguably, such procedural principles matter more in the ordinary person’s conception of the Rule of Law than the formal criteria mentioned in the previous section. When people worried that the American detention facility in Guantanamo Bay from 2003 to the present was a “black hole” so far as legality was concerned, it was precisely the lack of these procedural rights that they were concerned about. What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them (such as it was), and to be represented so that their own side of the story could be explained. No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.

Some procedural requirements are also institutional in character: there must be courts and there must be judges whose independence of the other branches of government is guaranteed. This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws (Waldron 2013).

Though many jurists follow Raz 1977 in thinking that the Rule of Law is a purely formal/procedural ideal, others believe in adding a more substantive dimension. They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. At the very least, the formal/procedural aspects generate a certain momentum in a substantive direction. Generality—proceeding according to a rule—is often said to contain the germ of justice (Hart 1961: ch. 8). And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty. We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements.

Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. Ronald Cass (2004: 131) says that “[a] critical aspect of the commitment to the rule of law is the definition and protection of property rights”.

[T]he degree to which the society is bound by law, is committed to processes that allow property rights to be secure under legal rules that will be applied predictably and not subject to the whims of particular individuals, matters. The commitment to such processes is the essence of the rule of law. Cass (2004: 131)

Others, like Richard Epstein (2011: 10), accept that “[a]nalytically, the rule of law is … a separate conception from private property”. But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits.

It is also widely believed—though not necessarily by the same people who associate legality with property—that a system of positive law that fails to respect fundamental human rights should not be dignified with the term “the Rule of Law”. The World Justice Project in 2011 quoted Arthur Chaskalson, former Chief Justice of South Africa, to this effect:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”. (World Justice Project 2011: 9)

On the other hand, as we have seen, Joseph Raz (1979 [1977]: 211) is famous for insisting that “the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged”, and that we should not try to read into it other considerations about democracy, human rights, and social justice. Those considerations, he said, are better understood as independent dimensions of assessment. Tom Bingham, in his book on The Rule of Law , said this in response to Raz:

While … one can recognize the logical force of Professor Raz’s contention, I would roundly reject it in favor of a “thick” definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. (Bingham 2010: 67)

Lord Bingham’s position has an intuitive appeal in the eyes of many commentators, even if it irritates in its casual rejection of a point whose logic it claims to recognize.

Both Chaskalson and Bingham seem to want to fill out the formal/ procedural conception of the Rule of Law with some human rights component. And many liberals are inclined to follow them in that. But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy.

All this sounds an analytic danger signal. Once we open up the possibility of the Rule of Law’s having a substantive dimension, we inaugurate a sort of competition in which everyone clamors to have their favorite political ideal incorporated as a substantive dimension of the Rule of Law. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals.

Even if the principles of the Rule of Law are purely formal in their application, we don’t just value them for formalistic reasons. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller (1964: 39–40) called a bond of reciprocity—a mutuality of constraint—between the ruler and the ruled, and in that sense it mitigates the asymmetry that political power otherwise involves.

Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty. According to Hayek’s theory of the Rule of Law—particularly in the early phase of his work (see section 3.5 above)—we value requirements like generality and impersonality because they free us from dependence upon others’ wills:

My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans. (Hayek 1960: 152)

Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom. Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses. He quoted Lord Mansfield to the effect that

[i]n all mercantile transactions the great object should be certainty: … it is of more consequence that a rule should be certain, than whether the rule is established one way rather than the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p. 153 (cited by Bingham 2010: 38))

Bingham went on to observe in his own voice that

[n]o one would choose to do business … involving large sums of money, in a country where parties’ rights and obligations were undecided. (Bingham 2010: 38)

These conceptions claim to bring a certain air of reality to our discussions of freedom. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application. Knowing in advance how the law will operate enables one to make plans and work around its requirements (see Hayek 1960: 153 and 156–7). And knowing that one can count on the law’s protecting property and personal rights gives each citizen some certainty about what he can rely on in his dealings with other people. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance. If action of this sort becomes endemic, then not only are people’s expectations disappointed, but increasingly they will find themselves unable to form expectations on which to rely, and the horizons of their planning and their economic activity will shrink accordingly.

So we need a basis for expectation. The best account of the importance of legal expectations was given by the utilitarian philosopher Jeremy Bentham, in a work called “Principles of the Civil Code”. Expectation, said Bentham, is “a chain which unites our present existence to our future existence”.

It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole. (Bentham 1931 [1802, 1864]: 111)

The establishment of expectations, said Bentham, is largely the work of law, and the security of expectations is a vital constraint on the action of law: “The principle of security … requires that events, so far as they depend upon laws, should conform to the expectations which law itself has created…”.

Joseph Raz and Lon Fuller took the point about freedom even further. Raz (1979 [1977]: 221) suggested that securing an atmosphere conducive to freedom was a matter of dignity: “Respecting human dignity entails treating humans as persons capable of planning and plotting their future” (Raz 1979 [1977]: 221). In Lon Fuller’s theory, too, the principles of the inner morality of law were valued for the way they respected dignity:

To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules…. Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination. (Fuller 1964: 162)

What is said here about the connection between dignity and Fuller’s formal principles can be said even more about the connection between procedure and dignity. Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.

No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato (in The Statesman ), Thomas Hobbes (at least if the Rule of Law is supposed to take us beyond rule by law), and Carl Schmitt 1923 (in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis).

The criticism by Plato (c. 370 BC) has been the most enduring. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was

like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules. ( Statesman 294b–c)

Rules themselves were part of the problem: “People and situations differ, and human affairs are characterized by an almost permanent state of instability” ( Statesman 294b). One would use them, only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of expertise in political life. These concerns are echoed in the work of modern legal pragmatists (like Posner 1995) who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents.

Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending (Schmitt 1923; Posner and Vermeule 2010). Someone’s will has to prevail and, it is said, the Rule of Law does us no service by pretending that the element of will can be eliminated from politics or that decisiveness matters less than the “long deliberation” that was extolled in Aristotle's Rhetoric .

The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic. Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions. But this is not really how law operates in the modern world. As Rubin 1989 points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law. For example, the principles comprised in Fuller 1964’s inner morality of law—see section 3.6 above—are recipes perhaps for the production of legislation that looks congenial to legalistic concerns about clarity and predictability. But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise (Rubin 1989: 397–408).

At the same time, there are concerns about the mentality that is fostered by an excessive emphasis on the Rule of Law. In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in the officials (the judges, for example: see Cover 1975) or in the ordinary members of a community, making them anxious in the face of uncertainty and distrustful of their own or others’ individual judgments (see Henderson 1990). Sometimes it is important, for the sake of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the Rule of Law include concerns about legalism and the tendency to over-formalize or over-bureaucratize relationships that are more healthily conceived in terms that are more informal. This is not just a matter of legalizing the personal realm; it is also a matter of understanding, for example, the damage that can be done to relations between officials (like social workers) and vulnerable clients by replacing bringing in rigid rules to replace relatively informal professional norms (Simon 1983).

8. Controversies about Application

As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires. I have mentioned the general debates between defenders of formal, procedural, and substantive conceptions. There are also a number of particular debates.

How far should it be the mission of the Rule of Law to eliminate or reduce the amount of discretion in the way a society is governed? Some jurists, like Dicey (1885) and to a lesser extent Hayek (1944) insist that official discretion is inherently antithetical to the Rule of Law. Others, like Davis (1969), condemn this as an extravagant position, arguing that discretion is ineliminable in the modern administrative state. The rule of the Rule of Law is not to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake.

A similar question arises with regard to the use of norms that have the character of standards rather than rules. (A rule is like a numerical speed limit, whereas a standard is like a norm that requires people to drive at a “reasonable” speed.) Legal systems use both types of norm (Sunstein 1994); they use standards for cases where the appropriate decision may vary with ambient circumstances and it seems better to trust the judgment of those who face a particular situation, rather than laying it down in advance. There is an element of respect for individuals’ powers of discernment conveyed in the use of a standard. At the same time standards allow for less certainty in the law, especially when it is difficult for the person attempting to comply with the norm to predict how his judgment will be viewed by an official or by a court. Hayek suggests that

[o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction. (1972 [1944]: 78)

Whether he is right depends partly on how far we take the Rule of Law to be wedded to predictability: is predictability the be-all and end-all, or does the Rule of Law also promise a kind of legal system that frames and facilitates reason and thoughtfulness in human affairs?

Sometimes situations can be governed and disputes settled by informal social norms rather than by positive law, formally enacted and enforced (Ellickson 1994). Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law. On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements. On the other hand, it does have something in common with understandings of customary law and conceptions of the Rule of Law (like that of Hayek 1973) that try to separate themselves from enactment and legislation. Also it is sometimes said that the Rule of Law works best when what is enforced in a society can be mapped on to its members’ norms of fairness and common-sense. This makes social participation in the integrity and upholding of law more likely (Cooter 1997). The closer this mapping, the less of an investment there has to be in formal legal promulgation: ordinary know-how can become a reliable guide to legal knowledge. However, one has to be very cautious with this. Modern law is inevitably technical in ways that far outstrip the possibilities of intuitive understanding (Weber 1968 [1922]: 882–95). The best that can be hoped for is some sort of occasional consonance between enacted law and informal understandings, and the sporadic character of that may well heighten rather than reduce unpredictability.

Is it reasonable to use the Rule of Law to evaluate the way a society responds to emergencies? It is often thought that emergencies require forms of state action that are more peremptory and less procedurally laborious than those required in normal times. As a matter of fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the Rule of Law, that existing constitutional safeguards should remain in force; that, after all, is what they were designed for and these situations are where they are most urgently needed. Alternatively, in emergencies, one might rely on a general spirit of flexibility and circumstantial sensitivity in state action that is encouraged even in normal times. On this second option, the Rule of Law does not present itself as a major constraint on the flexibility of state action in face of danger. As a third option, one might seek to preserve something like the Rule of Law by laying down in advance specific legal rules to govern emergencies—rules that suspend ordinary civil liberties guarantees for example or authorize widespread discretion on the part of officials to undertake action that would normally be governed by general rules of law. (Machiavelli proposed a version of this in his Discourses (1517), extolling the institution of dictator in the Roman republic.) This option has the advantage of predictability; but its disadvantage is that it endorses a sort of Rule-of-Law- lite , which may eventually infect or supersede the conception of the Rule of Law that is supposed to be normally applicable.

The Rule of Law applies not only within national polities but also increasingly between them, but in this arena its use remains under-theorized (for a helpful discussion, see Crawford 2003). Much of the work that has been done on the international Rule of Law simply adopts uncritically the perspective of those who say, at the national level, that the Rule of Law requires determinacy, clarity, and predictability (see Chesterman 2008). But this may be misconceived when we are talking about states rather than individuals as the subjects of law (Waldron 2011b). States are in a much better position to be informed of what their legal requirements are than individual men and women in society, since they are parties to the treaties and practices that establish international law. (Maybe, though, this point does not hold to the same extent when we consider the murky depths of customary international law.)

Anyway, the liberty of an individual state is not such an important value as the liberty of an individual person. It is not clear that national states need protection from international law and the power that it represents in the way that ordinary men and women need protection from the exercise of political power in society. Moreover, in areas like international human rights law, any presumption based on the Rule of Law in favor of the liberty of national states will tend to have detrimental effects on the liberty or well-being of individual men and women. We have to be careful therefore that invocation of the Rule of Law in the international realm does not undermine the values that are supposed to be secured by this ideal within national polities.

One additional point. It remains controversial whether international institutions themselves—like the United Nations and its agencies—should be bound by the Rule of Law. This odd because these agencies are among the most vociferous advocates of the Rule of Law so far as its application to national states is concerned. The reluctance here stems in large part from an estimation of the importance of diplomatic immunity. UN officials worry that if they and their agencies are held legally liable for malfeasances of various kinds associated with peace-keeping activities, there is a danger that the whole basis of international action might unravel. The danger is probably exaggerated, however, and those who make this argument would not for a moment countenance a similar argument in the sphere of national states.

The Rule of Law is often cited as the key to nation-building and to the establishment of new democracies. Indeed it is often argued (e.g., Barro 2000) that a new state needs Rule-of-Law institutions—effective courts and commercial codes that can secure property rights and the enforcement of contracts—more than or even before it needs democratic institutions such as an elected legislature. It is said that a legal system in a developing country dominated by legislative action will neither inspire the confidence nor establish the stability that modern governance and investment require. (For discussion of these arguments, see Carothers 1998 and—more critically—Carothers 2009.) This raises once more the question of relation between the Rule of Law and legislation—only now it takes us also in the direction of considering an rather uncomfortably direct trade-off between Rule of Law values and democracy.

Finally, an analytic question. What is the relation between the Rule of Law and the concept of law? A case can be made—controversial, no doubt—for bringing the two of them together (see Waldron 2008 and also Simmonds 2008). The concept of law could be understood to embrace the fundamental elements of legality, though this identification looks less plausible the more substantive the conception of the Rule of Law is held to be. On this account, a system of governance doesn’t count as law unless it exhibits the characteristic forms and processes that we associate with legality. Otherwise we lose our sense of the institutional distinctiveness of law as a way of ruling a society. We saw earlier that Lon Fuller (1958 and 1964) envisaged a connection along these lines. So, in his later work did Ronald Dworkin. Dworkin (2004) asked us to consider a situation in which judges and lawyers were grappling with hard issues of interpretation or with difficult dilemmas posed by multiple sources of law. He said that in such cases, we might say that what was required as a matter of law might be different from what was required as a matter of justice. That is a familiar separation (even if Dworkin thought it was narrower and more blurred than most legal positivists believed). But he said, it would make no sense to say that what was required as a matter of legality or respect for the Rule of Law was different from what the legal solution was to this case. To figure out the legal solution we have to address the various legal and political materials precisely in light of our commitment to legality.

A conception of legality is … a general account of how to decide which particular claims are true…. We could make little sense of either legality or law is we denied this intimate connection. (Dworkin 2004: 24–5)

However this is not the received position. According to Joseph Raz (1977) and others you cannot understand what the Rule of Law is unless you already and independently understand what law is and the characteristic evils that law is likely to give rise to (which the Rule of Law tries to prevent). On this account, legality represents a particular set of concerns about law that have emerged in our civilization. The fact that these concerns are undoubtedly moral in character (even though they are not comprehensive moral concerns) means that—in Raz’s view—it is better to keep them separate from the concept of law itself, for fear of introducing a moral element into that concept.

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• American Bar Association Division for Public Education: The Rule of Law
• The United Nations Rule of Law Indicators
• World Justice Project Rule of Law Index ( WJP Rule of Law Index 2015 (static pdf version) )

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Eight cases from across history which still shape the law today

Senior Teaching Fellow, School of Law, University of Surrey

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New students are streaming into law schools across the country. But to become the next generation of lawyers, judges and activists, they’ll first need to read through a mountain of case law. In case law, judges define what acts of parliament actually mean, explain the common law and resolve disputes between citizens, organisations and sometimes state institutions.

Newspapers occasionally publish a list of the most important cases for students to be aware of. But it’s not just students who could benefit from learning about the law – after all, cases decided hundreds of years ago can set the precedent for decisions that the courts in England and Wales make today.

Here’s my pick of some of the most important cases throughout history: ones that can teach us all something about how the law mirrors social and political attitudes, while revealing the principles and patterns that make up the country’s version of justice.

1. The Case of Proclamations, 1610

Over 400 years ago, the chief justice, Sir Edward Coke, ruled that King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way.

By the end of that century, the Glorious Revolution laid the foundation for today’s constitutional monarchy, whereby whoever is king or queen respects the law-making authority of the elected parliament.

2. Entick v Carrington, 1765

Author and schoolmaster John Entick was suspected of writing a libellous pamphlet against the government. In response, the secretary of state sent Nathan Carrington, along with a group of other king’s men, to search Entick’s house for evidence. Entick then sued the men for trespass.

The court decided that the secretary of state did not have the legal authority to issue a search warrant, and therefore Carrington had trespassed. This case reflects the principle that “no man is above the law” – not even the secretary of state. To this day, law enforcement agencies may only do what the law allows.

3. R v Dudley and Stephens, 1884

In this case, the survivors of a shipwreck who killed and ate the youngest and weakest crew member were prosecuted for murder . Their defence was based on “necessity” – that they needed to eat the boy, as they were unlikely to survive and the boy probably would have died anyway.

It may have been a “custom of the sea” that cannibalism was allowed under such circumstances, but the defendants were found guilty on the basis that all life is equal – the law expected them to die, rather than kill another.

But the public was sympathetic to the defendants, and their sentences were later commuted from death to six months imprisonment. The boy was named Richard Parker, as is the tiger in the Man Booker prize-winning novel Life of Pi .

4. Carlill v Carbolic Smoke Ball Co, 1893

Mrs Carlill sued the manufacturer of the carbolic smoke ball – a device for preventing colds and flu – which had promised a reward of £100 for any one catching flu following the use of its product but then refused to pay out.

The court decided that this promise, together with Mrs Carlill’s use of the product as directed, amounted to a legally binding contract and she was entitled to the reward. The case explores many of the principles that must be present in modern day contracts, such as offer and acceptance, before we can make legally enforceable agreements between each other. Yet this most famous of cases may never have been brought at all, had Mrs Carlill not been married to a solicitor.

5. Donoghue and Stevenson, 1932

In a case originating in Scotland, Mrs Donoghue was given a bottle of ginger beer which allegedly contained the decomposed remains of a snail. She claimed to have suffered shock and gastroenteritis as a result. But as she had not bought the drink herself, she had no contract on which to sue.

Nevertheless, the court extended the law of negligence to require reasonable care towards those likely to be affected by a person’s or company’s actions. Was there really a snail? We don’t know for sure, as Mr Stevenson died before the evidence could be heard.

6. Fagan v Metropolitan Police Commissioner, 1969

To be guilty of a criminal offence, there often needs to be unlawful act accompanied by a guilty state of mind, such as a criminal intent. So, having accidentally driven his car onto a policeman’s foot, did Mr Fagan commit an assault when he decided not to remove it?

Mr Fagan suggested not because he had no criminal intent at the time the car first went on to the foot, but the court held that deciding to leave the car there was a combination of act and intention, which meant he was guilty of the offence .

7. R v R, 1991

The law is constantly evolving to meet changing social attitudes. In this case, the House of Lords swept away the common law rule that a man could not be guilty of raping his wife. The previous rule was based on a 1736 pronouncement that:

By their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract.

The House of Lords ruled that for modern times, marriage is a partnership of equals and any other suggestion was “quite unacceptable”.

8. The Belmarsh case, 2004

The Human Rights Act empowered judges to review acts of parliament, to check if they are compatible with the European Convention on Human Rights. Using this power, the House of Lords ruled that a statute which allowed terrorist suspects to be detained indefinitely without trial breached the suspects’ human rights.

The case shows how modern courts ask not just whether government action is authorised by law, but also whether it is compatible with our rights. Parliament amended the law as a result.

In 2016, Gina Miller brought a case against the UK government, claiming that it couldn’t trigger Article 50 – and therefore Brexit – without an act of parliament. Ruling in Miller’s favour in 2017, the Supreme Court drew on the 1610 case of proclamations. So there’s no doubt that even the oldest cases still have the power to shape society today.

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How to write a case brief for law school: Excerpt reproduced from Introduction to the Study of Law: Cases and Materials,

Third Edition (LexisNexis 2009) by Michael Makdisi & John Makdisi

C. HOW TO BRIEF

The previous section described the parts of a case in order to make it easier to read and identify the pertinent information that you will use to create your briefs. This section will describe the parts of a brief in order to give you an idea about what a brief is, what is helpful to include in a brief, and what purpose it serves. Case briefs are a necessary study aid in law school that helps to encapsulate and analyze the mountainous mass of material that law students must digest. The case brief represents a final product after reading a case, rereading it, taking it apart, and putting it back together again. In addition to its function as a tool for self-instruction and referencing, the case brief also provides a valuable “cheat sheet” for class participation.

Who will read your brief? Most professors will espouse the value of briefing but will never ask to see that you have, in fact, briefed. As a practicing lawyer, your client doesn’t care if you brief, so long as you win the case. The judges certainly don’t care if you brief, so long as you competently practice the law. You are the person that the brief will serve! Keep this in mind when deciding what elements to include as part of your brief and when deciding what information to include under those elements.

What are the elements of a brief? Different people will tell you to include different things in your brief. Most likely, upon entering law school, this will happen with one or more of your instructors. While opinions may vary, four elements that are essential to any useful brief are the following:

(a) Facts (name of the case and its parties, what happened factually and procedurally, and the judgment)

(b) Issues (what is in dispute)

(c) Holding (the applied rule of law)

(d) Rationale (reasons for the holding)

If you include nothing but these four elements, you should have everything you need in order to recall effectively the information from the case during class or several months later when studying for exams.

Because briefs are made for yourself, you may want to include other elements that expand the four elements listed above. Depending on the case, the inclusion of additional elements may be useful. For example, a case that has a long and important section expounding dicta might call for a separate section in your brief labeled: Dicta. Whatever elements you decide to include, however, remember that the brief is a tool intended for personal use. To the extent that more elements will help with organization and use of the brief, include them. On the other hand, if you find that having more elements makes your brief cumbersome and hard to use, cut back on the number of elements. At a minimum, however, make sure you include the four elements listed above.

Elements that you may want to consider including in addition to the four basic elements are:

(e) Dicta (commentary about the decision that was not the basis for the decision)

(f) Dissent (if a valuable dissenting opinion exits, the dissent’s opinion)

(g) Party’s Arguments (each party’s opposing argument concerning the ultimate issue)

(h) Comments (personal commentary)

Personal comments can be useful if you have a thought that does not fit elsewhere. In the personal experience of one of the authors, this element was used to label cases as specific kinds (e.g., as a case of vicarious liability) or make mental notes about what he found peculiar or puzzling about cases. This element allowed him to release his thoughts (without losing them) so that he could move on to other cases.

In addition to these elements, it may help you to organize your thoughts, as some people do, by dividing Facts into separate elements:

(1) Facts of the case (what actually happened, the controversy)

(2) Procedural History (what events within the court system led to the present case)

(3) Judgment (what the court actually decided)

Procedural History is usually minimal and most of the time irrelevant to the ultimate importance of a case; however, this is not always true. One subject in which Procedure History is virtually always relevant is Civil Procedure.

When describing the Judgment of the case, distinguish it from the Holding. The Judgment is the factual determination by the court, in favor of one party, such as “affirmed,” “reversed,” or “remanded.” In contrast, the Holding is the applied rule of law that serves as the basis for the ultimate judgment.

Remember that the purpose of a brief is to remind you of the important details that make the case significant in terms of the law. It will be a reference tool when you are drilled by a professor and will be a study aid when you prepare for exams. A brief is also like a puzzle piece.

The elements of the brief create the unique shape and colors of the piece, and, when combined with other pieces, the picture of the common law takes form. A well-constructed brief will save you lots of time by removing the need to return to the case to remember the important details and also by making it easier to put together the pieces of the common law puzzle.

D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND HIGHLIGHTING

So now that you know the basic elements of a brief, what information is important to include under each element? The simple answer is: whatever is relevant. But what parts of a case are relevant? When you read your first few cases, you may think that everything that the judge said was relevant to his ultimate conclusion. Even if this were true, what is relevant for the judge to make his decision is not always relevant for you to include in your brief. Remember, the reason to make a brief is not to persuade the world that the ultimate decision in the case is a sound one, but rather to aid in refreshing your memory concerning the most important parts of the case.

What facts are relevant to include in a brief? You should include the facts that are necessary to remind you of the story. If you forget the story, you will not remember how the law in the case was applied. You should also include the facts that are dispositive to the decision in the case. For instance, if the fact that a car is white is a determining factor in the case, the brief should note that the case involves a white car and not simply a car. To the extent that the procedural history either helps you to remember the case or plays an important role in the ultimate outcome, you should include these facts as well.

What issues and conclusions are relevant to include in a brief? There is usually one main issue on which the court rests its decision. This may seem simple, but the court may talk about multiple issues, and may discuss multiple arguments from both sides of the case. Be sure to distinguish the issues from the arguments made by the parties. The relevant issue or issues, and corresponding conclusions, are the ones for which the court made a final decision and which are binding. The court may discuss intermediate conclusions or issues, but stay focused on the main issue and conclusion which binds future courts.

What rationale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the rationale of the decision. The goal is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one side or the other.

A brief should be brief! Overly long or cumbersome briefs are not very helpful because you will not be able to skim them easily when you review your notes or when the professor drills you. On the other hand, a brief that is too short will be equally unhelpful because it lacks sufficient information to refresh your memory. Try to keep your briefs to one page in length. This will make it easy for you to organize and reference them.

Do not get discouraged. Learning to brief and figuring out exactly what to include will take time and practice. The more you brief, the easier it will become to extract the relevant information.

While a brief is an extremely helpful and important study aid, annotating and highlighting are other tools for breaking down the mass of material in your casebook. The remainder of this section will discuss these different techniques and show how they complement and enhance the briefing process.

Annotating Cases

Many of you probably already read with a pencil or pen, but if you do not, now is the time to get in the habit. Cases are so dense and full of information that you will find yourself spending considerable amounts of time rereading cases to find what you need. An effective way to reduce this time is to annotate the margins of the casebook. Your pencil (or pen) will be one of your best friends while reading a case. It will allow you to mark off the different sections (such as facts, procedural history, or conclusions), thus allowing you to clear your mind of thoughts and providing an invaluable resource when briefing and reviewing.

You might be wondering why annotating is important if you make an adequate, well-constructed brief. By their very nature briefs cannot cover everything in a case. Even with a thorough, well-constructed brief you may want to reference the original case in order to reread dicta that might not have seemed important at the time, to review the complete procedural history or set of facts, or to scour the rationale for a better understanding of the case; annotating makes these tasks easier. Whether you return to a case after a few hours or a few months, annotations will swiftly guide you to the pertinent parts of the case by providing a roadmap of the important sections. Your textual markings and margin notes will refresh your memory and restore specific thoughts you might have had about either the case in general or an individual passage.

Annotations will also remind you of forgotten thoughts and random ideas by providing a medium for personal comments.

In addition to making it easier to review an original case, annotating cases during the first review of a case makes the briefing process easier. With adequate annotations, the important details needed for your brief will be much easier to retrieve. Without annotations, you will likely have difficulty locating the information you seek even in the short cases. It might seem strange that it would be hard to reference a short case, but even a short case will likely take you at least fifteen to twenty-five minutes to read, while longer cases may take as much as thirty minutes to an hour to complete. No matter how long it takes, the dense material of all cases makes it difficult to remember all your thoughts, and trying to locate specific sections of the analysis may feel like you are trying to locate a needle in a haystack. An annotation in the margin, however, will not only swiftly guide you to a pertinent section, but will also refresh the thoughts that you had while reading that section.

When you read a case for the first time, read for the story and for a basic understanding of the dispute, the issues, the rationale, and the decision. As you hit these elements (or what you think are these elements) make a mark in the margins. Your markings can be as simple as “facts” (with a bracket that indicates the relevant part of the paragraph). When you spot an issue, you may simply mark “issue” or instead provide a synopsis in your own words. When a case sparks an idea — write that idea in the margin as well — you never know when a seemingly irrelevant idea might turn into something more.

Finally, when you spot a particularly important part of the text, underline it (or highlight it as described below).

With a basic understanding of the case, and with annotations in the margin, the second read-through of the case should be much easier. You can direct your reading to the most important sections and will have an easier time identifying what is and is not important. Continue rereading the case until you have identified all the relevant information that you need to make your brief, including the issue(s), the facts, the holding, and the relevant parts of the analysis.

Pencil or pen — which is better to use when annotating? Our recommendation is a mechanical pencil. Mechanical pencils make finer markings than regular pencils, and also than ballpoint pens. Although you might think a pencil might smear more than a pen, with its sharp point a mechanical pencil uses very little excess lead and will not smear as much as you might imagine. A mechanical pencil will also give you the freedom to make mistakes without consequences. When you first start annotating, you may think that some passages are more important than they really are, and therefore you may resist the urge to make a mark in order to preserve your book and prevent false guideposts. With a pencil, however, the ability to erase and rewrite removes this problem.

Highlighting

Why highlight? Like annotating, highlighting may seem unimportant if you create thorough, well-constructed briefs, but highlighting directly helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract information.

Highlighting takes advantage of colors to provide a uniquely effective method for reviewing and referencing a case. If you prefer a visual approach to learning, you may find highlighting to be a very effective tool.

If annotating and highlighting are so effective, why brief? Because the process of summarizing a case and putting it into your own words within a brief provides an understanding of the law and of the case that you cannot gain through the process of highlighting or annotating.

The process of putting the case into your own words forces you to digest the material, while annotating and highlighting can be accomplished in a much more passive manner.

What should you highlight? Similar to annotating, the best parts of the case to highlight are those that represent the needed information for your brief such as the facts, the issue, the holding and the rationale.

Unlike annotating, highlighting provides an effective way to color code, which makes referring to the case even easier. In addition, Highlighters are particularly useful in marking off entire sections by using brackets. These brackets will allow you to color-code the case without highlighting all the text, leaving the most important phrases untouched for a more detailed highlight marking or underlining.

Highlighting is a personal tool, and therefore should be used to the extent that highlighting helps, but should be modified in a way that makes it personally time efficient and beneficial. For instance, you might combine the use of annotations in the margins with the visual benefit of highlighting the relevant text. You may prefer to underline the relevant text with a pencil, but to use a highlighter to bracket off the different sections of a case. Whatever you choose to do, make sure that it works for you, regardless of what others recommend. The techniques in the remainder of this section will describe ways to make full use of your highlighters.

First, buy yourself a set of multi-colored highlighters, with at least four, or perhaps five or six different colors. Yellow, pink, and orange are usually the brightest. Depending on the brand, purple and green can be dark, but still work well. Although blue is a beautiful color, it tends to darken and hide the text.

Therefore we recommend that you save blue for the elements that you rarely highlight.

For each different section of the case, choose a color, and use that color only when highlighting the section of the case designated for that color. Consider using yellow for the text that you tend to highlight most frequently. Because yellow is the brightest, you may be inclined to use yellow for the Conclusions in order to make them stand out the most. If you do this, however, you will exhaust your other colors much faster than yellow and this will require that you purchase an entire set of new highlighters when a single color runs out because colors such as green are not sold separately. If instead you choose to use yellow on a more frequently highlighted section such as the Analysis, when it comes time to replace your yellow marker, you will need only to replace your yellow highlighter individually. In the personal experience on one of the authors, the sections of cases that seemed to demand the most highlighter attention were the

Facts and the Analysis, while the Issues and Holdings demanded the least. Other Considerations and

Procedural History required lots of highlighting in particular cases although not in every case.

Experiment if you must, but try to choose a color scheme early on in the semester and stick with it. That way, when you come back to the first cases of the semester, you will not be confused with multiple color schemes. The basic sections of a case for which you should consider giving a different color are:

(b) Procedural History

(c) Issue (and questions presented)

(d) Holding (and conclusions)

(e) Analysis (rationale)

(f) Other Considerations (such as dicta)

Not all of these sections demand a separate color. You may find that combining Facts and Procedural History or Issues and Holdings works best. Furthermore, as mentioned above, some sections may not warrant highlighting in every case (e.g., dicta probably do not need to be highlighted unless they are particularly important). If you decide that a single color is all that you need, then stick to one, but if you find yourself highlighting lots of text from many different sections, reconsider the use of at least a few different colors. Highlighters make text stand out, but only when used appropriately. The use of many colors enables you to highlight more text without reducing the highlighter’s effectiveness. Three to four colors provides decent color variation without the cumbersomeness of handling too many markers.

Once you are comfortable with your color scheme, determining exactly what to highlight still may be difficult. Similar to knowing what to annotate, experience will perfect your highlighting skills. Be careful not to highlight everything, thus ruining your highlighters’ effectiveness; at the same time, do not be afraid to make mistakes.

Now that we have covered the basics of reading, annotating, highlighting, and briefing a case, you are ready to start practicing. Keep the tips and techniques mentioned in this chapter in mind when you tackle the four topics in the remainder of this book. If you have difficultly, refer back to this chapter to help guide you as you master the case method of study and the art of using the common law.

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Reconciling Theory and Practice of the Rule of Law in the European Union

• Published: 21 November 2022
• Volume 14 , pages 101–105, ( 2022 )

Cite this article

• Barbara Grabowska-Moroz 1 ,
• Joelle Grogan 1 , 2 ,
• Dimitry V. Kochenov 1 , 3 &
• Laurent Pech 1 , 4  

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The rule of law is one of the fundamental principles of Europe’s constitutional heritage which is said to be common to the forty-six Member States of the Council of Europe, twenty-seven of which are members of the EU. Beyond the boundaries of Europe, the rule of law has also been recognised as a foundational value, and a central tenet of both constitutional democracies and international organisations. As regards the EU specifically, the rule of law is explicitly mentioned in the EU Treaties as one of the values that is common to the EU and its Member States, values which “define the very identity of the European Union as a common legal order” according to the European Court of Justice. Footnote 1 In the family of Article 2 TEU values, the rule of law plays a crucial legal role as it “forms part of the very foundations of the European Union and its legal order”. Footnote 2 Yet, as unprecedently warned by the President of the CJEU in November 2021, the foundations of the EU “as a Union based on the rule of law are under threat” and “the very survival of the European project in its current form” at stake. Footnote 3 This warning was subsequently echoed by the President of the European Court of Human Rights who spoke of “a worrying regression in the rule of law” in June 2022. Footnote 4

Worsening and spreading rule of law backsliding means that the EU is now facing an autocracy crisis, Footnote 5 with already one EU Member State no longer a democracy Footnote 6 and another one arguably no longer with an independent judicial branch Footnote 7 following years of sustained top-down implementation of autocratisation blueprints. Footnote 8 While the EU institutions have not been doing enough to ensure that the EU meets the challenges outlined by the President Lenaerts Footnote 9 and used every excuse, including the war in Ukraine, to do even less, Footnote 10 the body of “Rule of Law law” has been growing steadily, especially, due to the efforts of the Court of Justice, which managed to give the whole field a foundational overhaul. Footnote 11 Against this background, this special issue, which draws on several years of scholarly cooperation in the auspices of the RECONNECT Horizon 2020 project, Footnote 12 aims to make an inter-disciplinary contribution engaging with the multi-faceted complexity of the EU’s Rule of Law landscape as it stands, outlining a selection of crucial challenges and also offering some solutions. The articles span conceptual arguments of the definition and scope of the rule of law within the EU legal space, as well as how it can be measured. It also presents case studies on, inter alia, the enlargement process, Hungary, Poland and Spain, judicial reasoning in intra-EU investment, and the impact of the COVID-19 pandemic on legal systems.

Laurent Pech opens the special issue with “The rule of law as a well-established and well-defined principle of EU Law” which aims to assess the extent to which the European Commission is correct in asserting that the rule of law is a well-established and well-defined principle of EU law whose core legal meaning is shared across the EU. It examines the meaning and scope of the rule of law within the EU legal space, and takes aim at criticisms originating from representatives of authorities engaged in the systemic violation of the principles at the core of the rule of law and according to whom the rule of law would neither be defined in EU law, nor could it be defined in EU law.

Julinda Beqiraj and Lucy Moxam, in “Reconciling the Theory and the Practice of the Rule of Law in the European Union Measuring the Rule of Law'' consider the main and common elements of the rule of law across the institutions of the EU, Council of Europe and the United Nations, underlining the broad consensus of its core meaning. They evaluate the tools with which rule of law compliance is measured across these institutions, and on this analysis, consider the current trends in rule of law across a range of data sets including Varieties of Democracy (V-Dem) indices, the Democracy Barometer, the Bertelsmann Stiftung’s Transformation Index (BTI), and the World Justice Project’s Rule of Law Index.

Petra Bárd and Viktor Zoltán Kazai in “Enforcement of a formal conception of the rule of law as a potential way forward to address backsliding: Hungary as a case study” examine how the Court of Justice and other EU institutions charged with ensuring a high level of adherence to the rule of law have not yet exploited the potential of an emphasis on the formal elements of the rule of law, rather than a focus on the substantive elements so far seen in the case law of the Court. They argue that EU institutions have tools available to them which could be effectively used to address Hungary’s lack of compliance with formal rule of law elements. By using Hungary as a case study, they argue that a focus on formal elements of the rule of law would be beneficial in terms of both speed and desired effect in countering the process of autocratisation.

Dimitry Kochenov and Nikos Lavranos examine a specific judgment of the Court of Justice of the European Union in “ Achmea versus the Rule of Law: CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union”. They argue that Achmea presents the threat of tangible future harm for investors by disempowering them, and lowering standards of judicial protection. They underscore how, in a time of increasing and systemic undermining of judicial independence at EU Member State level, the Court of Justice’s aim to reinforce its monopoly on adjudication results in investors being deprived of effective judicial protection in the Member States where the Rule of Law is fading away. Fighting for supremacy of EU law has thus resulted in weakening the Rule of Law and the protection of human rights, as the two Hungarian case-studies from the paper demonstrate.

Elena Basheska, in “EU Enlargement in Disregard of the Rule of Law: A Way Forward Following the Unsuccessful Dispute Settlement Between Croatia and Slovenia and the Name Change of Macedonia”, underlines the importance of the rule of law as an aspect of the EU’s enlargement policy and shows that the overpoliticisation of the process can render relevant enlargement provisions futile and undermine the transformative effect of EU values. Through the case study of so far unsuccessful dispute settlement between Croatia and Slovenia, she argues for a reconsideration of the principle of conditionality.

Gisela Hernández and Carlos Closa provide an in-depth analysis of the Catalan crisis from a rule of law perspective. They argue that interpreting the Catalan secessionist challenge merely as a conflict between the Spanish state and constitution vis-à-vis pro-secessionist actors while ignoring its European dimension and consequences can be misleading. The article evaluates how secessionism may disregard the rule of law. Furthermore, the authors argue that much of the secessionist strategies were similar to the ones used by the political authorities that have engaged in democratic and rule of law backsliding blueprints in some EU member states, particularly in Poland and Hungary.

Edit Zgut takes a close examination of the erosion of standards of democracy and the rule of law in Hungary and Poland following their “authoritarian remaking” over the last decade in “Informal Exercise of Power: Undermining Democracy Under the EU’s Radar in Hungary and Poland”. The author highlights how, despite the introduction of various frameworks and other instruments, the EU has been unable to effectively enforce compliance with fundamental values. The article explores the under-theorized area of the link between informal power and the limited constraining role of the EU and argues that the exercise of informal power to further democratic deconsolidation and rule of law backsliding is as severe a threat as active legislative actions.

Mariam Begadze examines growing tensions between autocrats and opposition-led local authorities in Hungary, Poland and Turkey. With these countries as case-studies, the article identifies the emerging categories of abuse of law within the illiberal playbook. It carries a hopeful optimism that still antecedent and robust guarantees (paired with popular support) can still serve as a bulwark against illiberals in national executives, but cautions that this is not always the case. Reflecting on the phenomenon of incremental undermining of opposition in subnational contexts, the article concludes on the question of whether such instrumentalization of law can itself be judicially manageable, at least in situations when clear political opponents are targeted.

Barbara Grabowska-Moroz identifies and discusses the main systemic challenges related to the rule of law protection in the European Union. The article refers to results of the survey conducted as a part of the RECONNECT project, Footnote 13 which asked the respondents how important EU values are to them. The rule of law was not assigned the highest importance compared to other values. Furthermore, despite the continuing expansion and densification of the EU’s rule of law toolbox, rule of law backsliding still has not been eradicated, which raises questions about whether the EU is even able—or willing—to guarantee and enforce compliance with the foundational values which define the very identity of the EU as a common legal order. The article offers some key suggestions on how to tackle existing systemic deficiencies in the field of the rule of law in the EU.

Finally, Joelle Grogan examines the impact of the COVID-19 health crisis on the practice of democracy and the rule of law in the EU in “COVID-19, The Rule of Law and Democracy. Analysis of Legal Responses to a Global Health Crisis”. She underlines how emergency situations can incentivise rapid action without scrutiny and the use of power without restraint. She argues that this can be a potent and dangerous mix in the context of pre-existing trends towards authoritarianism and rule of law backsliding. The demands of emergency can provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. The article draws from the experiences of the EU and comparators beyond to offer an outlook on how to prepare for future emergencies by building on the lessons of the COVID-19 pandemic.

Let us make no mistake: the significant recent case-law and the multi-faceted developments this special issue engages with did not come as a panacea. Although enriching the level of EU’s legal engagement with the Rule of Law as a fundamental principle of law, Footnote 14 recent developments this special issue analyses have not resulted in solving the challenges on the ground in the troubled Member States. Footnote 15 If anything, the on-going upgrade and elaboration of the Rule of Law as a principle of crucial significance in the European legal space has resulted in new cleavages. The first of these appeared between the practice of the Rule of Law as applied by the supranational institutions to their own level of governance, as opposed to what is applied to the Member State level. Footnote 16 The second of such cleavages consists in the growing discord between the key approaches to the Rule of Law by the Court of Justice as opposed to the standards articulated and applied by the European Court of Human Rights. Footnote 17 The two are mutually reinforcing, as the growing departure of the Court of Justice from the ECtHR standards contributes also to the growing rift between the EU and its Member States. Footnote 18 The attempts to solve the most outstanding Rule of Law problems has thus cleated new challenges, and new research, building on what this special issue offers, will be indispensable for the fuller understanding of the on-going Rule of Law processes in Europe.

Case C-156/21, Hungary v Parliament and Council , EU:C:2022:97, para. 127 And Case C-157/21, Poland v Parliament and Council , EU:C:2022:98, para. 145.

Case C-156/21, para. 128 and Case C-157/21, para. 146.

K. Lenaerts, ‘Constitutional relationships between legal orders and courts within the European Union’, FIDE 2021, XXIX FIDE Congress, 4 November 2021, p. 2: https://fide2020.eu/wp-content/uploads/2021/11/FIDE-Opening-Ceremony_-4-November-2021_Koen-Lenaerts.pdf

R. Spano, Solemn Hearing for the Opening of the Judicial Year, 24 June 2022, p. 5: https://www.echr.coe.int/Documents/Speech_20220624_Spano_JY_ENG.pdf

R.D. Kelemen, “Europe’s Unused Tools” (2022) Journal of European Integration (forthcoming).

European Parliament resolution of 15 September 2022 on the proposal for a Council decision determining, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, P9_TA(2022)0324, para. 2 (Hungary has turned ‘into a hybrid regime of electoral autocracy’).

L. Pech, P. Wachowiec, D. Mazur, “Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action” (2021) 13 Hague Journal on the Rule of Law 1.

L. Pech, K.L. Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” (2017) 19 Cambridge Yearbook of European Legal Studies 3.

D. Kochenov, A. Magen, and L. Pech (eds) ‘The Great Rule of Law Debate in the EU’, 54 Journal of Common Market Studies , 2016, pp. 1045–1104.

P. Bárd and D. Kochenov, ‘War as a Pretext to Wave the Rule of Law Goodbye? The Case for EU’s Constitutional Awakening’, 27 European Law Journal , 2021, pp. 39–49.

L. Pech and D. Kochenov, Respect for the Rule of Law in the Case-Law of the Court of Justice (SIEPS, 2021).

Reconciling Europe with its Citizens through Democracy and Rule of Law . RECONNECT received funding from the European Union’s Horizon 2020 Research & Innovation programme under Grant Agreement no. 770142.

C. Plescia, J. Wilhelm, S. Kritzinger, T. Schüberl, J. Partheymüller, ‘RECONNECT 2019 European Parliament Election Panel Survey (SUF edition)’ (2020) <  https://doi.org/10.11587/MOV0EZ  > AUSSDA, V1.

D. Kochenov, ‘De Facto Power Grab in Context: Upgrading Rule of Law in Europe in Populist Times’, XL Polish Yearbook of International Law 2021, pp. 197–208.

D. Kochenov and Graham Butler, ‘Independence of the Court of Justice of the European Union: Unchecked Member States Power after the Sharpston Affair’, 27 European Law Journal , 2021, pp. 262–296.

B. Grabowska-Moroz, Annotation of the Noble Bank Case, CMLRev. 2022 (forthcoming).

D. Kochenov and P. Bárd, ‘Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe’, 60 Journal of Common Market Studies , 2022.

Author information

Authors and affiliations.

CEU Democracy Institute, Budapest, Hungary

Barbara Grabowska-Moroz, Joelle Grogan, Dimitry V. Kochenov & Laurent Pech

King′s College, London, UK

Joelle Grogan

CEU Department of Legal Studies, Vienna, Austria

Dimitry V. Kochenov

UCD Law School, Dublin, Ireland

Laurent Pech

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Grabowska-Moroz, B., Grogan, J., Kochenov, D.V. et al. Reconciling Theory and Practice of the Rule of Law in the European Union. Hague J Rule Law 14 , 101–105 (2022). https://doi.org/10.1007/s40803-022-00183-9

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Published : 21 November 2022

Issue Date : December 2022

DOI : https://doi.org/10.1007/s40803-022-00183-9

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Case Study - 19: Rule of Law vs Social Norms

• 09 Nov 2019

You are the Superintendent of Police (SP) in the district where instances of honour killing are rampant. One day you receive a phone call from a girl informing you of the potential threat to her and her partners’ life from her family as she has decided to marry a boy belonging to a lower caste. Moreover, the local police station is not filing the FIR or granting them protection. You ask her to visit your office but she demands police protection to come out from the hideout as her father’s goons are chasing her.

On further inquiry, you come to know that the girl is the daughter of one of the most powerful Minister of the State and both girl and boy are legally eligible to get married. The family is concerned about the family prestige due to the lower caste of the boy and also of the financial stability of marriage as they both are unemployed. You are under extreme political pressure to charge the boy of kidnapping the girl or else face the consequences.

In such circumstances, point out the ethical dilemma faced by you and options available to you. Also, chalk out the course of action you would prefer to follow. (250 words)

Ethical dilemmas

• Personal v/s professional ethics: Adhering to the demands of political leaders by not providing protection to the couple or following legal duty to provide safety and security to the couple.
• Following social norms v/s ethical norms: Accepting inter-caste marriage is not socially acceptable but moral standards suggest to allow the couple to exercise their free will.

Options available

Option (2) should be the correct approach to handle the situation.

Course of action

Measures to deal with the crisis

• Initiate steps for attitudinal change to reduce caste prejudices, abolish untouchability and spread the values of liberty, equality, fraternity, etc in the society.
• Utilizing Dr Ambedkar scheme for social integration through inter-caste marriages to extend financial incentive to the couple to enable them to settle down in the initial phase of their married life.
• The SP must show spirit of service and conviction to ensure justice to the couple. He must ensure that a safe and secure environment is created in the district so that no one should fear of moral policing.
• Taking confidence building measures to regain the trust of people on the administration.

The false notions of honour and pride are so deep rooted that people even forget the social bonds of love and emotions with their own children. Thus, the attitudinal change programmes must target the revival of social bonds and realizing them about need to give respect to human lives and compassion.

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• > Émile Durkheim and the Collective Consciousness of Society
• > ‘The Rule-of-Law’: A Case Study

Book contents

• Frontmatter
• Introduction
• Part I The Concept of the Collective Consciousness of Society
• Part II The Form of the Collective Consciousness
• Preface to Part II
• Introduction to Part II: The Conditions of the Collective Consciousness of Society
• 4 The Form that the Collective Consciousness(es) of Society Takes in a Late-Industrial Society: I. Macro -sociological or ‘General’ Characteristics
• 5 The State as the ‘Organ’ of the Common Consciousness
• 6 ‘The Rule-of-Law’: A Case Study
• 7 The Form that the Collective Consciousness Takes in Early Twenty-First Century Britain: II. Micro -sociological, Individual or Small-Scale Factors
• Conclusion to Part II
• Part III Durkheim on Crime and Punishment
• Part IV Social Fact or Social Phenomenon ? Durkheim's Concept of the Collective Consciousness as a ‘Social Fact’
• Part V Some Problems with Durkheim's Concept of the Common and Collective Consciousness
• Appendix: On Paying a Debt to Society

6 - ‘The Rule-of-Law’: A Case Study

from Part II - The Form of the Collective Consciousness

Published online by Cambridge University Press:  05 October 2014

• 4 The Form that the Collective Consciousness(es) of Society Takes in a Late-Industrial Society: I. Macro-sociological or ‘General’ Characteristics
• 7 The Form that the Collective Consciousness Takes in Early Twenty-First Century Britain: II. Micro-sociological, Individual or Small-Scale Factors
• Part IV Social Fact or Social Phenomenon? Durkheim's Concept of the Collective Consciousness as a ‘Social Fact’

Before we leave the realms of what Durkheim describes as the general characteristics of the collective consciousness of society – the macro-sociological features we have considered above – and go on to look in greater detail at those other very strong, but smaller-scale or ‘individual’ characteristics which might serve this purpose, there is one other very strong macro-sociological candidate that I want to consider for inclusion under the heading of ‘rules forbidding acts contrary to the sentiments of the collectivity’ and this is one which, interestingly enough, is in fact entirely missing from Durkheim's discussion of this question in The Division of Labour . I am referring here to what Barbara Hudson (1998), calls the role of the ‘Rule-of-Law’ in society. Departing then for the moment from Durkheim's list of all possible candidates for inclusion in the collective consciousness of society (table v.1 in The Division of Labour ), I want to emphasize once again how revealing it is that any discussion of this point is conspicuously lacking from Durkheim's own account of this matter, at least as outlined by him in The Division of Labour , and that the reason for this is almost certainly due to the analytical distinction that Durkheim makes between the disciplinary function in society and the collective consciousness as such. The criminal law is part of the disciplinary function of society and as such, as we have seen, it is not part of Durkheim's concept of the collective consciousness.

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• ‘The Rule-of-Law’: A Case Study
• Kenneth Smith
• Book: Émile Durkheim and the Collective Consciousness of Society
• Online publication: 05 October 2014

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Neurophysiological correlates of expert knowledge: an event-related potential (erp) study about law-relevant versus law-irrelevant terms.

1. Introduction

2. materials and methods, 2.1. participants, 2.2. stimuli, 2.3. procedure, 2.4. electroencephalography (eeg), 2.5. analyses, 3.1. event-related potentials (erps) and topographical maps, 3.2. analytical statistics, 4. discussion, 5. future research, 6. limitations, 7. conclusions, author contributions, institutional review board statement, informed consent statement, data availability statement, acknowledgments, conflicts of interest.

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Walla, P.; Kalt, S.; Lachmayer, K. Neurophysiological Correlates of Expert Knowledge: An Event-Related Potential (ERP) Study about Law-Relevant Versus Law-Irrelevant Terms. Brain Sci. 2024 , 14 , 1029. https://doi.org/10.3390/brainsci14101029

Walla P, Kalt S, Lachmayer K. Neurophysiological Correlates of Expert Knowledge: An Event-Related Potential (ERP) Study about Law-Relevant Versus Law-Irrelevant Terms. Brain Sciences . 2024; 14(10):1029. https://doi.org/10.3390/brainsci14101029

Walla, Peter, Stefan Kalt, and Konrad Lachmayer. 2024. "Neurophysiological Correlates of Expert Knowledge: An Event-Related Potential (ERP) Study about Law-Relevant Versus Law-Irrelevant Terms" Brain Sciences 14, no. 10: 1029. https://doi.org/10.3390/brainsci14101029

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