Democracy and the Rule of Law

Democracy and the Rule of Law

Democracy and the Rule of Law

Democracy and the Rule of Law

Synopsis

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to la, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest.

Excerpt

Our central question is why governments do or do not act according to laws.

The traditional answer to this question has been that the law has an autonomous causal efficacy. People obey the law because it is the law: actions follow prior norms. This view is now being contested by arguments that law cannot be treated as an exogenous constraint on actions. In some situations, the actions that individuals want to and do undertake are stable and predictable even if they do not implement any antecedent laws.

The normative conception of the rule of law is a figment of the imagination of jurists. It is implausible as a description. Moreover, it is incomplete as an explanation. Why do people obey laws? Why do they obey a particular law? Would they obey any norm just because it is a law?

By a normative conception, we mean only the following. First, a set of rules constitutes law if and only if it satisfies some formal conditions. Second, the rules that satisfy these formal conditions are obeyed. Hence, law rules when actions follow anterior norms. The question whether the law rules is thus one of obligation, obedience, or compliance.

Lists of the formal requirements for a set of rules to qualify as law converge. According to a standard formulation (Fuller 1964: ch. 2), laws are norms that are (1) general, (2) publicly promulgated, (3) not retroactive, (4) clear and understandable, (5) logically consistent, (6) feasible, and (7) stable over time. Moreover, these norms must have a hierarchical structure (Raz 1979: 210-29), so that particular norms conform to general ones.

Law rules if “those people who have the authority to make, administer, and apply the rules in an official capacity … do actually administer the law consistently and in accordance with its tenor” (Finnis 1980: 270). This implies that they also abstain from undertaking actions not . . .

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