Rule of Law

What are Fuller’s 8 precepts of the Rule of Law?

1. Generality

2. Promulgation

3. Non-retroactivity

4. Clarity

5. No contradictions

6. Laws should not require the impossible

7. Constancy of law through time

8. Congruence between official action and the declared rule

What are Raz’s 8 precepts of the Rule of Law?

1. Laws should be prospective, open, and clear.

2. Laws must be stable.

3. Law-making is guided by open, stable, clear and general rules.

4. Judicial independence.

5. Principles of natural justice.

6. Judicial review of compliance with the precepts.

7. Access to courts.

8. Crime-preventing agencies’ discretion should not be permitted to pervert the law.

What is Raz’s purpose for the Rule of Law, and how does it relate to Gardner’s ‘modal ideal’? (2)

1. Rule of Law makes law capable of guiding the behaviour of its subjects.

2. Gardner’s calls the RoL a “modal ideal” — A set of attributes law must possess to be capable of guiding conduct. → An ideal towards which law aspires, but not the only or ultimate ideal.

What is the 'complete social philosophy' conception of the Rule of Law? (2)

• Craig = ROL encompasses a complete set of ideals to which law should aspire, rather than merely the formal conditions that make legal guidance possible.

• Bingham's conception includes values such as democracy, human rights, equality, and compliance with international law.

How does Raz criticise the 'complete social philosophy' conception? (2)

• If RoL = “rule of good law”, the concept loses its useful independent function.

• Need to distinguish whether law possesses Rule-of-Law characteristics from whether the law is morally good overall.

What is Gardner’s central objection to Bingham? (3)

1. Gardner argues that Bingham effectively folds other ideals of good government into the RoL, without adequately establishing that they are themselves requirements of the RoL.

2. e.g. Fact that torture is abhorrent establishes a strong reason for prohibiting torture, but does not by itself establish that prohibition of torture is conceptually required by the RoL.

3. Bingham is answering the right moral question but a different jurisprudential question.

How does Gardner characterise Bingham’s first argument concerning torture? (2)

1. Bingham’s argument confuses different hallmarks of civilisation.

• Conformity with the ROL is a hallmark of civilisation.

• Prohibiting torture is a hallmark of civilisation.

• Thus, prohibiting torture is part of conformity with the ROL.

2. Considers this invalid reasoning. → Two things being characteristics of civilisation does not establish that one forms part of the other. → Both may be desirable without being identical.

What is Gardner’s “argumentative gerrymandering” objection to Bingham? (3)

1. Bingham — Excluding human rights protections would strip the RoL of much of its virtue.

2. Gardner — This begs the question. → How important is the RoL relative to competing ideals of good government is itself something requiring argument?

3. Can’t just incorporate those other ideals into the definition of the RoL until the concept becomes as morally important as we want it to be.

How does Craig distinguish formal and substantive conceptions of the RoL?

Craig — Formal conceptions concern the manner in which law is promulgated, without judging the actual substantive content of the law.

What is the objection to describing Fuller’s requirements as purely “formal”? (3)

• Many of Fuller’s supposedly formal requirements actually require judgments affecting legal content.

• e.g. An impossible law must have its content changed to become possible to obey. → Generality and stability concern what a law regulates and whether that changes. → Clarity primarily concerns the law’s content.

• Thus, the formal/substantive distinction may not map onto Fuller’s requirements neatly.

Why does Fuller think the RoL possesses positive intrinsic moral value? (3)

1. Fuller argues that conformity with the RoL respects human dignity and autonomy.

2. Lawmakers treat subjects as responsible agents capable of understanding rules, following them, and being held responsible for defaults. → Respects their powers of self-determination.

3. Recognises individuals as autonomous agents rather than merely objects of governmental power. → Clear, prospective and stable laws enable people to plan their lives and adjust to legal changes.

What are Waldron's 2 arguments connecting the ROL with dignity?

Waldron = RoL respects each individual as a centre of intelligence.

1. Self-application → Publicity and generality recognise people’s capacities for understanding, self-control, and voluntary compliance. → Respects the dignity of rational self-control and voluntary action.

2. Reasoning → Coherent laws and judgments make law intelligible as a unified enterprise, allowing rational analysis and argument. → Respects the dignity of reasoning and argumentativeness.

What distinction does Kramer draw between 2 kinds of autonomy? (2)

1. Autonomy as a Cognitive Fact — The sheer capacity to deliberate and make choices.

2. Autonomy as a Moral/Political Ideal — The ability to choose in circumstances where one’s will is not unduly coerced or constrained by another.

What does Kramer argue that ROL compliance respects regarding autonomy?

Respects autonomy as a cognitive fact, but does not necessarily protect autonomy as a moral/political ideal.

Set out Kramer’s autonomy objection to Fuller as 2 points and a conclusion

P1 = Compliance with the RoL respects autonomy as a cognitive fact, but not necessarily autonomy as a moral/political ideal.

• Can have clear, promulgated, and prospective laws while still severely restricting citizens’ civil and political liberties.

• Recognise someone’s ability to choose while leaving them with an extremely restricted range of choices. → “Man in the pit” example

P2 = Respect for cognitive autonomy is not morally valuable.

• ‘Bank robber’ example

Conclusion = RoL compliance does not necessarily respect autonomy in a morally valuable sense.

How does Kramer's 'man in the pit' example support his objection to Fuller? (3)

• Man permanently trapped in a pit can still make choices such as when to eat, sleep or scratch his ear.

• BUT these options are trivial, short-term, and severely constrained.

• Retaining cognitive ability to choose does not guarantee morally valuable autonomy or meaningful freedom.

How does Kramer's bank robber example challenge Fuller? (3)

• Robber saying “Hand over the money or I’ll shoot” recognises that V is capable of understanding the demand and choosing whether to comply.

• BUT this recognition is coercive, not morally valuable respect for autonomy.

• Similarly, clear legal rules can acknowledge rational agency while severely restricting freedom.

How can Kramer's objection be extended to Fuller's argument from dignity? (3)

1. Legal system might promulgate a clear, prospective rule requiring everyone except its leader to be tortured 6 days a week.

2. People can understand the rule and plan around their one day of freedom, BUT the law still subjects them to degrading treatment.

3. Thus, recognising people's capacities to understand and follow rules does not necessarily respect dignity in a morally valuable sense.

What are Simmonds' 2 dimensions of freedom? What does he argue about the ROL?

1. Range of options available without interference.

2. Extent to which that range of options depends upon another’s will.

• ROL protects this 2nd dimension by placing stable, prospective limits on legal duties, making individuals less dependent on the sovereign's present will.

What is the slavery objection to Simmonds' argument? How does Simmonds respond?

• Regime may comply with ROL while legally establishing slavery, making slaves' options entirely dependent on their owners' wills.

• Simmonds = Slaves are treated as objects of proprietary rights rather than bearers of legal rights and duties, placing them outside the system of jural relationships.

How does Kramer respond to Simmonds' defence against the slavery objection? (2)

1. Excluding slaves from jural relationships does not eliminate the fact that ROL can establish and maintain chattel slavery.

2. The objection does not depend on slavery. → Clear laws could give employers unfettered discretion over employees' working hours or pay, leaving workers dependent on another's will.

Why does Raz argue that the ROL has negative intrinsic value? (3)

1. Conformity with ROL avoids harms that the law itself can create.

2. Violations cause:

• Uncertainty, preventing people from forecasting developments and forming expectations.

• Frustrations of expectations, where law invites people to plan and act autonomously only to undermine their plans.

3. ROL protects against these threats rather than producing independent positive moral good.

How do Kimmel support Raz's negative value account? (2)

• Legal systems create dangers of monopolised coercive power, arbitrary government, attacks on dignity and erosion of autonomy.

• ROL limits these law-created dangers.

How does Gardner support Raz's negative value account? (2)

• ROL cannot establish that having a legal system is desirable.

• Can only establish that if we are going to have one, it should comply with the ROL.

What is Raz's sharp knife analogy? (3)

• A sharp knife may be used for good or evil purposes.

• Similarly, ROL makes law better at guiding conduct BUT does not ensure that its substantive aims are morally good.

• Compliance therefore remains compatible with wicked legal purposes.

Why does Hart deny that the Rule of Law has intrinsic moral value? (3)

1. Hart argues Fuller’s precepts are principles of efficacy, rather than morality.

2. They make law effective in achieving its purpose, regardless of whether that purpose is good or evil.

3. Treating purposive effectiveness as morality confuses 2 distinct notions.

What is Hart's 'morality of poisoning' analogy? (3)

1. Effective poisoning has internal principles, such as avoiding substances whose appearance will attract notice.

2. BUT calling these principles the 'morality of poisoning' confuses efficiency in achieving an aim with the moral worth of that aim.

3. Likewise, ROL principles make law effective, without necessarily making it morally good.

According to Kramer, what determines the moral standing of a legal regime? (3)

• Not the bare fact of compliance or non-compliance with the ROL.

• Instead, relevant considerations include:

(1) Whether enacted laws express immoral positions.

(2) Whether procedural deviations frustrate legitimate expectations.

• Moral evaluation thus requires attention to substantive aims and the effects of procedural practices.

Why does Fuller argue that unjust laws do not comply with the ROL? (2)

1. Uses historical examples, such as apartheid South Africa, where morally undesirable laws failed to satisfy ROL requirements.

2. ROL is not ethically neutral between good and evil substantive purposes, because wicked legal aims are incompatible with its precepts.

What is Hart and Gardner's first objection to Fuller's argument about unjust laws? (3)

1. Fuller's examples only demonstrate that some historical injustices involved ROL violations.

2. This relationship is contingent, not necessary.

3. Logically possible for clear, public, prospective and stable laws to pursue morally wicked ends.

What is Raz’s objection to Fuller's position about unjust laws? (3)

1. Even if unjust norms necessarily violated the ROL, an otherwise compliant legal system could still contain individual unjust norms.

2. Raz — ROL compliance is a matter of degree and complete compliance is impossible.

3. e.g. System X ordinarily satisfies Fuller's 8 precepts but suddenly enforces an unpromulgated torture rule.

Why does Finnis argue that tyrants will not comply with the ROL? (2)

1. ROL embodies reciprocity, fairness and respect for persons.

2. Tyrants hold these values in contempt and therefore have no moral motivation to comply with ROL.

What is the objection to Finnis' argument about tyrants? (2)

1. Tyrant may perform an act for pragmatic reasons without accepting its moral justification.

2. e.g. Someone might help a friend solely to receive praise or secure future assistance. → Likewise, a tyrant might comply with the ROL for instrumental reasons despite rejecting its moral values.

Why does Simmonds argue that tyrants have pragmatic reasons to violate the ROL? (2)

1. Extra-legal state violence can intimidate opponents, discourage political resistance and prevent opposition activity from becoming visible.

2. A wicked regime may therefore see practical advantages in acting outside legally established rules.

What is Kramer's pragmatic objection to Simmonds, and what is its limitation? (2)

1. Kramer argues that wicked regimes may benefit pragmatically from ROL compliance, because violations can reduce citizens' incentives to obey the law.

2. BUT both this claim and Simmonds' argument are contingent on circumstances such as risk aversion, punishment severity and others' behaviour. → Neither establishes what all wicked regimes will do.

How can a tyrant achieve Simmonds' objectives without violating the ROL? (3)

1. A tyrant could promulgate a clear, prospective rule prohibiting media that does not expressly support the regime.

2. Such a law can suppress opposition and create a chilling effect while satisfying procedural ROL requirements.

3. Therefore, achieving tyrannical ends does not necessarily require ROL violations.

Why does Simmonds' argument fail even if tyrants have pragmatic incentives to violate the ROL? (3)

1. Having good reasons to violate the ROL does not entail that every wicked regime will actually violate it.

2. A regime may assign greater weight to incentives favouring compliance, such as improving its international reputation.

3. Alternatively, its leaders may misjudge which methods would best achieve their objectives.

Does the ability of law to guide conduct establish its moral value? What do Fuller, Kramer, Raz, and Hart each say?

Fuller = Yes, because guidance recognises rational agency and facilitates autonomy.

Kramer = Not necessarily. → Cognitive agency is compatible with coercion and severely restricted choices.

Raz = Guidance is valuable by avoiding law-created uncertainty and frustrated expectations.

Hart = Effective guidance is a matter of efficacy, not necessarily morality.

Can a legal system comply with the ROL while being deeply unjust? What do Hart & Gardner, Kramer, Raz, and Fuller each say?

Hart & Gardner = Yes — Procedurally compliant laws can pursue wicked purposes.

Kramer = Yes — A clear, prospective torture rule can still be degrading.

Raz = Yes — Compliance does not guarantee moral aims, as shown by the sharp knife analogy.

Fuller = Challenges the ethical neutrality of ROL requirements, using historical injustices as evidence.

Does the ROL necessarily protect individuals against domination? Simmonds’ argument, objection, Simmonds’ reply, Kramer’s rebuttal

Simmonds = Yes, because stable legal limits reduce dependency on another’s arbitrary will.

Objection = ROL could establish slavery or broad employer discretion.

Simmonds’ Reply = Slaves stand outside jural relationships.

Kramer’s Rebuttal = That does not prevent law from establishing slavery, and domination can also arise within recognised legal relationships.

Must a wicked regime violate the ROL? 2 points, 2 objections, and conclusion

P1 — Finnis = Tyrants lack moral reasons to comply with ROL.

Objection to Finnis = Tyrants may still comply for pragmatic purposes.

P2 — Simmonds = Extra-legal violence may assist oppression.

Objection to Simmonds = Tyrants can suppress dissent using clear, prospective law. → They may also value international standing.

Conclusion — Wickedness does not logically entail ROL violations.

What is the strongest distinction between Raz's and Bingham's conceptions?

Raz = Treats ROL as a distinct ideal concerned with making law capable of guiding conduct. → Does not require that the substantive law be just.

Bingham = ROL includes broader values such as democracy, equality and human rights.