Tamanaha and Bingham approach the history and use of the rule of law from somewhat different perspectives. Tamanaha leans more heavily on political theory and public affairs, describing contributions from Aristotle, the German lex salica, Thomas Aquinas, John Locke, Baron de Montesquieu, and James Madison. Bingham emphasizes Anglo-American legal history and international law, taking the reader from the days of King Alfred through the Magna Carta, Sir Edward Coke, and the 1701 Act of Settlement.
But both, like many others, describe it as emerging from the realization that sovereign arbitrariness was unacceptable. The political historian Francis Fukuyama traces this realization to the Investiture Controversy of the late 11th century. Pope Gregory VII and the Holy Roman Emperor Henry IV each claimed the right to appoint (invest) the Church’s prelates. Soon after his election in 1073, Pope Gregory VII excommunicated and dethroned the emperor until, begging reinstatement by standing barefoot in the snow outside the pope’s residence at Canossa, Henry IV conceded the exclusive right of investiture to the Church. Once in control of its own bureaucracy, the Church developed a natural law–based jurisprudence that subjected sovereigns to moral constraints on arbitrariness throughout Catholic Europe.6 One result was the Magna Carta in 1215.
Eventually, the Reformation destroyed the Church’s universality, and the Enlightenment’s appreciation of science and rational inquiry undercut its moral authority. Divine-right monarchies gave way to what Tamanaha calls the “liberal state,” which “[r]ather than a community integrated by shared values, amounts to an aggregation of individuals held together by a mutual non-interference pact.”7 That pact, originally designed, in Montesquieu’s words, “to protect the ruled against the aggression of those who rule,”8 became the rule of law conceived as a legalization of sovereign exercises of power through procedural restraints on arbitrariness.9
A.V. Dicey and F.A. Hayek, each writing approximately a century ago, most notably delineated this procedural approach to the rule of law. Each derived its requirements from common law because, in their view, its antiquity and pragmatic case-by-case nature legitimately expressed community moral and political ideals. The rule of law, in their view, required sovereigns to act through the medium of law as validated by independent judges.10 This would not simply replace the arbitrariness of sovereigns with the arbitrary rule of judges, as some critics feared. Judges would be constrained by the ethos of their profession, their legal training, and the powerful influence of an organized bar.11 This procedural definition is the prevailing current understanding of the rule of law, along with widespread agreement that, as the late law professor Lon Fuller specified, laws themselves must be “general, public, prospective, clear, consistent, followable, stable, and enforced as promulgated.”12
Should the Procedural Definition of the Rule of Law Be Expanded to Include Human Rights?
For two main reasons, many contemporary thinkers fault the procedural concept of the rule of law. First, it allows nasty sovereigns to claim adherence to the rule of law despite the immoral nature of their legislation. In Judith Shklar’s acidic words, “procedurally ‘correct’ repression is perfectly compatible with [the rule of law].”13 Second, as noted by legal realists and those who question literal approaches to the Constitution like those of Justices Antonin Scalia and Clarence Thomas, a legal system of formal rules that judges mechanically apply like umpires is a deceptive myth, simply masking prejudices, policy preferences, and assumptions.14
These powerful critiques have led Tamanaha, Bingham, and the British and U.S. organizations devoted to the international promotion of the rule of law to conclude that the “law” in the rule of law must also meet certain moral requirements. In one broad formulation of this principle, “even a structurally proper enactment does not and should not count as a ‘law’ if it is extremely unjust, or if the avowed purpose of the law is an inequitable one.”15
As a basic moral requirement, Tamanaha cites a provision in the German constitution specifying “respect for and the protection of the dignity of man as the guiding principle of all state action.”16 Noting that such measures resurrect natural law without the religious underpinnings,17 he would define the rule of law as based on “what limits on [government] are desirable and match prevailing social-cultural views and arrangements.”18
Bingham’s moral touchstone is the UN’s Universal Declaration of Human Rights because, as he says, “the rule of law now demands protection of fundamental human rights,” and the UN Declaration “has provided the common standard for human rights upon which formal treaty commitments have subsequently been founded. . . .”19 The ABA Rule of Law Initiative seeks to protect women’s rights and opposes human trafficking.20 Its British counterpart, the Bingham Centre for the Rule of Law of the British Institute for Comparative and International Law, seeks to demonstrate “how the rule of law upholds respect for human dignity.”21 And the World Justice Institute includes within its “Rule of Law Index” measures of civil and criminal justice, fundamental rights, and the absence of corruption.22
As law professors Sanford Levinson and Jack Balkin conclude,
the values behind the Rule of Law are as important as ever to restrain arbitrary power and violations of human dignity. . . . [But] mere adherence to legal formalities and the discourse of professional legal culture may not prevent arbitrariness, seizures of power, violations of human dignity, brutality, or even torture. Legal formality, or, we might say, adherence to legal “grammar,” is not the same thing as respect for the rule of law. . . .23
Despite these important arguments, I question the wisdom of incorporating moral requirements into the rule of law. Its formal version has enjoyed almost universal acceptance. Even repressive regimes claim to honor it, and in a commercial age its importance to business and commerce is well known.24 As Tamanaha says, it is as close to an absolute good thing as exists in political thought.25 Whether followed or not, the rule of law therefore remains an established ideal for societies to pursue.
But can we say that even the most cherished ideals of Western morality (such as the equal rights of all citizens; the dignity of all humans; or freedoms of religion, expression, and political participation) receive similar universal acceptance? As Tamanaha concedes, great complications arise when “substantial parts of the positive law, or limits on the law (like bills of rights), are transplanted from a Western society onto a non-Western culture. . . .”26 Justice Bingham asserts that the UN Declaration of Human Rights has “almost worldwide acceptance,” but many societies of different religious or customary outlook clearly do not share all its ideals, which derive largely from Judeo-Christian precepts that prevail in Western Europe and its former colonies.
In fact, the vigorous advocacy for human rights that occurs around the world is necessary precisely because so many disregard them. At best, to incorporate Western morality into the rule of law just adds another rhetorical exhortation to the array of arguments in favor of human rights. The outcome seems more likely to destroy the universal idealization of the rule of law than to effectively promote Judeo-Christian morality.
Another objection is that “the outer edges of some fundamental human rights are not clear-cut.”27 For example, Tamanaha and Bingham, as well as legal philosophers like Ronald Dworkin and Richard Fallon, insist that the rule of law “should always be subject to evaluation from the standpoint of justice and the good of the community.”28 To objections that this sets an extremely vague standard, they answer that any given community usually has “a large measure of agreement” about what the good of the community requires.29
But a standard like “the good of the community” creates dilemmas like that of Justice Potter Stewart, who famously concluded that although he couldn’t define pornography, “I know it when I see it.”30 Such a variable and subjective standard undercuts the rule-of-law virtues of reasonable certainty and predictability that are so cherished in the business community and by due process advocates.
In sum, a procedural rule of law can apply to bad legal systems as well as good ones. It does not prevent sovereigns from making and enforcing bad laws, nor fully delineate what makes legal systems admirable and desirable. Even so, to prevent the quest for perfection from destroying what is good, perhaps we should confine our notion of the rule of law to its universally accepted procedural sense, and leave the moral content of laws for other battles.
The great respect accorded to the rule of law makes it a valuable standard for measuring the quality of political communities and a worthy goal for them to pursue. Conversely, for countries considered to be exemplars of the rule of law, threats to the rule of law are reasons for alarm, even if statistical measures of the magnitude of threat are unavailable. Three current developments in the United States are examples.
Does Alternative Dispute Resolution Undercut the Rule of Law?
The manifest virtues of alternative dispute resolution (ADR) need no recitation here. Since receiving endorsements from the ABA (1955) and the U.S. Supreme Court (1984),31 ADR has enjoyed growing popularity. But ADR can also lead to less obvious and less happy consequences for parties, the judicial system, and the law itself.
Bargaining power is always a factor in resolving disputes, but courts exist to substitute justice and reason for the exercise of power. Many court procedures aim to reduce disparities of power at trial, and reason’s role in legal decisions is to find a just solution, not simply to yield to bargaining power. In some arbitration forums and in court-ordered mediation,32 however, legal procedures are minimized. Often such mediation occurs before the completion of discovery because a prime motive for the parties to participate is to avoid discovery’s costs. But this leaves them more certain about the potential costs of trial and appeal, which are reasonably predictable on the basis of experience, than about the ultimate legal outcome. That’s because without discovery, the legal posture of the case is harder to evaluate. The fairly high certainty of litigation cost weighs more heavily than the low certainty of a favorable outcome, driving the financially weaker party to accept an unfavorable settlement. In my experience, this calculus in court-ordered mediation often favors the rule of money over the rule of law.
The Judicial System
ADR can not only fail to deliver the rule of law in itself, but it may damage the judicial system’s ability as well. Since the 1970s, business litigation has significantly moved away from courts of general jurisdiction and into private ADR. Consequently, civil case filings have not kept pace with population growth. The parties—the main constituency for the courts—have shifted from businesses toward individuals.33 As the authors of a 2000 National Center for State Courts (NCSC) study predicted, “In effect, private ADR groups [will have] skimmed-off the lucrative civil litigation. . . .”34 In fact, in 2009 even Delaware, the capital of business litigation, passed a law allowing judges to engage in private arbitration because the legislature feared “losing its ‘pre-eminence’ in corporate litigation to a growing market in private dispute resolution.”35
Not only has the business proportion of civil filings declined, but the share of filed cases actually resolved in court is now dramatically lower (1–2 percent of filed cases compared to 30 percent in 1935)36—again, due in part to the growing popularity of ADR.37 Consequently, due partly to the rise of ADR, courts now play a substantially smaller role in legal outcomes of concern to business. In response, businesses presumably care less about the health of the courts38 and provide their budgets with less political support. As will be more fully described later, this consequence of ADR has a significantly adverse impact on the rule of law.
The Law Itself
The shift from trials to ADR also reduces the number of precedents created at trial or on appeal. Private or court-based ADR rarely leaves a public record of the facts or the legal thought involved. The substance of arbitral decisions hardly ever receives airing on appeal and consequently never appears in the body of law that guides practitioners, judges, and arbitrators. In short, the rule of law becomes a rule of less law.
As political support for courts of general jurisdiction wanes because of business defection to ADR and federal courts, the faltering structure threatens the rule of law itself.
The rule of law operates by judges and juries resolving disputes. These disputes get shaped into the form of cases, filed in court, moved to judgment, and resolved through an elaborate sorting and winnowing process. Each step involves trained people carrying out coordinated functions—lawyers, judges, court clerks, security officers, librarians, sheriffs, social workers, mediators, legal aid societies, probation and parole officers, and so forth, plus various caregiving, educational, and specialized entities. In other words, it takes an elaborate structure of court administration and ancillary institutions to animate the rule of law.
Inadequate funding and a failure to provide courts with the tools and support they need to do their work efficiently and effectively have recently brought about considerable faltering, and as Chief Justice John Roberts states in his 2013 Year-End Report, a continuation of the same will cause even greater damage. A freeze on federal court spending at current 2013 levels, he predicts, would lead to “the loss of an estimated additional 1,000 court staff . . . [and] greater delays in resolving civil and criminal cases. In the civil and bankruptcy venues, further consequences would include commercial uncertainty, lost opportunities, and unvindicated rights. In the criminal venues, these consequences pose a genuine threat to public safety.” As he concludes, “It takes no imagination to see that failing to meet the Judiciary’s essential requirements undermines the public’s confidence in all three branches of government.”39 There are undoubtedly several reasons for this dangerously declining support for the courts, but the loss of business interest mentioned earlier is certainly one of them.
Do Limitations on Recourse Diminish the Rule of Law?
The procedural concept of the rule of law that has achieved widespread support heavily emphasizes the role of laws, courts, and judges. Implicit in this understanding is the idea that, as the World Justice Project puts it, the rule of law requires that “[t]he process by which the laws are enacted, administered and enforced is accessible, fair and efficient.”40 Almost by definition, a law that cannot be contested is arbitrary. Access to the law-making process and to the courts is therefore integral to the rule of law. In that light, and regardless of their reasoning or wisdom, certain recent U.S. Supreme Court decisions foreclosing access appear to weaken the rule of law in the United States. I will cite a few examples; readers can certainly think of others.
In Shelby County v. Holder, the Supreme Court terminated a 1965 Voting Rights Act requirement that certain political jurisdictions with a history of voting rights discrimination obtain prior U.S. Justice Department approval for laws that would affect voting.41 In the Court’s stated view, and despite substantial recent congressional documentation to the contrary, discrimination has faded away, terminating the constitutional justification for treating those political jurisdictions differently from any other. The announcement of this decision unleashed legislation in many of those same jurisdictions that imposed new hurdles to voting that may in reality deprive many minority citizens of recourse to the law-making process.
Citizens United v. Federal Election Commission overturned federal restrictions on political campaign contributions by legally created organizations like labor unions and corporations.42 It accorded to them a right of free speech that such restrictions violated. A later decision nullified state campaign contribution limits for the same reason.43 As with Shelby County, these decisions reduce citizen access to the legislative process, in this case by awarding a vast advantage of political power to legal entities.44
The above two cases also challenge the rule of law in another way. They weigh especially heavily on the judicial independence that is central to the rule of law. Because many U.S. judges are either elected or subject to recall votes, those who seek to influence judicial decisions have increasingly financed judicial elections. Spending levels have jumped remarkably in the wake of Citizens United, and despite the legal profession’s strong ethos in favor of disinterested judging and fairness, empirical studies show that such spending has the desired effect.45 It is hard to imagine a more serious attack on the rule of law than corruption of judges.
In AT&T Mobility v. Concepcion, the Supreme Court ruled that the Federal Arbitration Act permits arbitration clauses that preempt lawsuits in consumer contracts, such as the licenses consumers sign for using cell phones or computer software.46 Such clauses therefore forbid them from participating in class actions, even though class actions provide the only practical way for them to get redress. The ruling also held that the Federal Arbitration Act supersedes state laws to the contrary. In American Express Co. v. Italian Colors Restaurant, the Supreme Court extended this reasoning to employment agreements.47 One highly respected legal commentator noted that by this decision employees with employment contracts were “effectively divested of their claims altogether for reasons of simple economics.”48 Such cases, economically impractical for individual pursuit, now involve perhaps the majority of interactions between businesses and U.S. citizens. By denying individuals legal recourse, has the Supreme Court stripped from them the benefits of the rule of law?
The rule of law is a code of conduct, an operating system for the application of coercion in a given political community. It mandates not when, where, or why, but how coercion may happen. Often enough disregarded, and hardly ever perfectly followed, the rule of law as a repudiation of and bulwark against arbitrariness nevertheless comes as close to a universally accepted value system as the world knows. In this quick survey of its meaning, history, and current status in the United States, I have challenged efforts to define the rule of law so as to serve substantive moral goals. I have also suggested that the trend privileging ADR over legal forums, as well as recent restrictions on voting access and legal recourse, may be undercutting the rule of law in many situations and for many people.
1. Sandra Day O’Connor, First Annual White Lecture, Indiana University School of Law, Apr. 2, 2002.
2. Rachel Kleinfeld Belton, Competing Definitions of the Rule of Law: Implications for Practitioners, in Carnegie Papers at 5 (Carnegie Endowment for Int’l Peace, Rule of Law Series No. 55, 2005).
3. Brian Tamanaha, On the Rule of Law: History, Politics, Theory (2004); Tom Bingham, The Rule of Law (2011).
4. Tamanaha, supra note 3, at 114.
5. Bingham, supra note 3, at 8.
6. Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution 265 (2011). The capitulation was not just a matter of religious belief; many of Henry’s rival German princes supported the pope.
7. Tamanaha, supra note 3, at 33.
8. Judith N. Shklar, Political Theory and the Rule of Law, reprinted in Judith N. Shklar, Political Thought and Political Thinkers, ch. 2 (Stanley Hoffmann ed., 1998) (originally in The Rule of Law 24 (A. Hutchinson & P. Monahan eds., 1987).
9. Id. at 42.
10. The requirement that sovereigns act through the law served Hayek as a basis for rejecting the validity of administrative exercises of coercion because many such administrative actions are not reviewed, in substance, by the courts. See Tamanaha, supra note 3, at 67.
11. See Richard H. Fallon Jr., Rule of Law as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 11–12 (1997). Tamanaha, in On the Rule of Law, roots the professional constraints on judges in the establishment of the academic study of law, the increased complexity of law as a specialized body of knowledge with its own language and concepts accessible only to initiates, the consolidation of the legal profession as a self-regulating guild with a monopoly over legal services, the insinuation of lawyers as indispensable participants in the criminal law system, in establishing property ownership, and in facilitating commercial transactions, and the central role that persons trained in law came to play as advisors to kings and popes, and as advisors to, as well as becoming, gov’t officials and legislators, among other positions of public and private authority. Tamanaha, supra note 3, at 123.
12. Lon Fuller, The Morality of Law 33–39 (rev. ed. 1964) (paraphrased in Carnegie Peace Project, “History and the Importance of the Rule of Law”; Belton, supra note 2, at 20).
13. Judith N. Shklar, Legalism 17 (1964).
14. Tamanaha, supra note 3, at 78. The comparison to umpires comes, of course, from the testimony of Judge John Roberts in Senate hearings concerning his nomination to become chief justice of the Supreme Court. See also Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 116–130 (2005).
15. Belton, supra note 2, at 4.
16. Tamanaha, supra note 3, at 109.
17. Shklar, Legalism, supra note 13, at 30 (“If the core of natural law theory is the proposition that law and morals intersect, positivism lives to deny that proposition.”) Shklar means by “positivism” a procedural concept of the law.
18. Tamanaha, supra note 3, at 139.
19. Bingham, supra note 3, at 32–33.
20. Our Origins & Principles, ABA Rule of Law Initiative, http://www.americanbar.org/advocacy/rule_of_law/about/origin_principles.html.
21. Bingham Centre for the Rule of Law, http://binghamcentre.biicl.org.
22. WJP Rule of Law Index 2014, World Justice Project, http://worldjusticeproject.org/rule-of-law-index. The fundamental rights measure takes note of freedom of speech, religion, and assembly, and measures protection for labor rights and privacy among other elements.
23. Sanford Levinson & Jack M. Balkin, Morton Horwitz Wrestles with the Rule of Law, in Transformations in American History: Law, Ideology, Politics, and Method 21 (Daniel W. Hamilton & Alfred L. Brophy eds., 2010).
24. See Brian Z. Tamanaha, The History and Elements of the Rule of Law, 2012 Sing. J. of Legal Studies 232, 233–36.
25. Tamanaha, supra note 3, at 3.
26. Id. at 138.
27. Bingham, supra note 3, at 68.
28. Tamanaha, supra note 3, at 141. See Ronald Dworkin, Taking Rights Seriously (1977); Ronald Dworkin, Law’s Empire (1986).
29. Tamanaha, supra note 3, at 141.
30. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
31. Southland Corp. v. Keating, 465 U.S. 1 (1984); Ian R. Macneil, American Arbitration Law: Reformation-Nationalization-Internationalization 56 (1992).
32. In the absence of satisfactory information, or agreed-upon procedures for getting it, it would not be logical for a party to enter into voluntary mediation. But court-ordered mediation is not always so voluntary.
33. National Center for State Courts studies show that contract cases, primarily collections, dominate the civil caseload of the trial courts for which it has statistics. Contract cases represent 90 percent or more of civil cases in most states, and collections cases in a recent survey year (2008) ranged from 34 percent of contract cases in Connecticut to 92 percent in Utah. Robert C. LaFountain et al., Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads 28 (Nat’l Ctr. for State Courts 2010), http://www.courtstatistics.org/other-pages/~/media/microsites/files/csp/ewsc-2008-online.ashx.
34. John A. Martin & Brenda J. Wagenknecht-Ivey, Courts 2010: Critical Trends Shaping the Courts in the Next Decade 9 (Nat’l Ctr. for State Courts 2000).
35. Judith Resnick, Renting Judges for Secret Rulings, N.Y. Times, Mar. 1, 2014, at A19.
36. The 1935 study is cited in Judith Resnick, Managerial Judges, 96 Harv. L. Rev. 374, 385 n.53 (1982). Although the NCSC has stopped providing annual data about case dispositions, the author heard Gordon Griller, Director of Trial Court Leadership Programs at the NCSC, estimate that trials resolve 1–2 percent of civil cases filed in state courts of general jurisdiction. For U.S. cases during the 12 months ending September 30, 2011, 1.05 percent were disposed of during or after a trial. Table C-4. U.S. District Courts—Civil Cases Terminated, by Nature of Suit and Action Taken, During the 12-Month Period Ending September 30, 2011, uscourts.gov, http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/appendices/C04Sep11.pdf.
37. ADR is one of three main reasons. Nat’l Ctr. for State Courts, Trial Trends and Implications for the Civil Justice System, 11 Caseload Highlights: Examining the Work of State Courts, no. 3, June 2005, at 5, http://cdm16501.contentdm.oclc.org/cdm/ref/collection/civil/id/25.
38. Court efforts to counter this trend by creating specialized commercial courts have probably exacerbated this problem. Once given competent, comfortable, and efficient courts for themselves, businesses have less reason to advocate for the health of the court system in general.
39. Chief Justice John Roberts, 2013 Year-End Report on the Federal Judiciary 8–9 (Dec. 31, 2013), http://s3.documentcloud.org/documents/1001167/roberts-2013-year-end-report-on-federal-judiciary.pdf.
40. What Is the Rule of Law?, World Justice Project, http://worldjusticeproject.org/what-rule-law. See also Access to Justice & Human Rights, ABA Rule of Law Initiative, http://www.americanbar.org/advocacy/rule_of_law/thematic_areas/access_justice_human_rights.html (first thematic area) (emphasis added).
41. 570 U.S. 2 (2013).
42. 558 U.S. 310 (2010).
43. Am. Tradition P’ship Inc. v. Bullock, 567 U.S. 1179 (2012).
44. It should be noted that conservative 7th Circuit judge Richard Posner has publicly criticized the Supreme Court’s decision for underestimating this consequence. See Richard Posner, Restrictions on Campaign Contributions—A Good Thing?, The Becker-Posner Blog (Apr. 8, 2012), http://www.becker-posner-blog.com/2012/04/unlimited-campaign-spendinga-good-thing-posner.html.
45. See Joanna Shepherd, Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions (Am. Constitutional Soc’y 2013).
46. 563 U.S. 321 (2011).
47. 133 S. Ct. 2304 (June 20, 2013).
48. Edward Siegel, Waiver of Employee’s Right to Bring Class Action, N.Y. St. L. Dig., No. 647, Nov. 2013, at 1.