Market Rights and the Rule of Law: A Case for Procedural Constitutionalism
Pincione, Guido, Harvard Journal of Law & Public Policy
I. INTRODUCTION I. SOME CONCEPTUAL ISSUES III. CONTESTABLE RIGHTS AND THE RULE OF LAW IV. INTEGRITY AND RULE FOLLOWING V. AM I PROVING TOO MUCH? VI. DEPENDENCE, CHARITY, AND WELFARE VII. NONINTERFERENCE, MARKET RIGHTS, AND THE RULE OF LAW VIII. THREE CONCLUDING CAVEATS
It is widely believed that a commitment to the rule of law is neutral among theories of rights. On the prevailing view, the classical liberal idea that market rights ought to be protected under the rule of law reflects a contingent substantive belief about which rights there are, rather than a more intimate relationship between the rule of law and market rights. Thus, Joseph Raz writes that "the rule of law ... can hardly be used to oppose in principle governmental management of the economy," as long as such management may "increase freedom" understood as "power of action." (1) By "market rights," I mean the rights to self-ownership, to exclude others from the use of certain external things, and to voluntarily exchange such things. Acknowledgement that individuals have welfare rights (i.e., rights to a minimum provision of welfare goods, such as health care) in addition to, or perhaps competing with, market rights should lead us, according to the prevailing view, to subject a wider realm of rights to the discipline of the rule of law. I disagree. I will argue that the rule of law requires that market rights be strong enough to exclude legal (2) welfare rights as they are upheld in typical welfare states. I will also argue that an important lesson of my exploration of the conflict between welfare rights and the rule of law is that the way in which liberal constitutionalism has addressed the protection of core rights and liberties must undergo major revision.
We frequently contrast the rule of law with the rule of men. In his classic work on constitutional law, A.V. Dicey wrote that the rule of law encompasses three ideals: (a) law prevails over arbitrariness and discretionary power, (b) "every man ... is subject to the ordinary law of the realm and amendable to the jurisdiction or the ordinary tribunals," and (c) "the general principles of the constitution (as, for example, the right to liberty, or the right of public meeting) are [...] the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts," rather than the result of legislation. (3) Only the ideal that law prevails over arbitrariness is close to the understanding of the rule of law that I shall adopt in this article. Dicey's ideal that no one is exempt from the duty to obey the law and to be subject to prosecution under the law requires equal treatment or non-discrimination, and is incorporated into the Fourteenth Amendment of the American Constitution. In my restrictive sense of the "rule of law," this can coexist with forms of discrimination or exemptions condemned by the Equal Protection Clause. Thus, if public officials are legally bound to apply laws involving gender discrimination, but lack discretionary powers to decide the form and scope of such measures, then their behavior is, in my sense, subject to the rule of law, even if those laws offend the Equal Protection Clause. This shows that violations of the Equal Protection Clause that are consistent with my understanding of the rule of law may be grossly objectionable. (4) For this reason, the rule of law, as I explain it in this article, is not sufficient for a legitimate polity. Whether the rule of law is necessary for a legitimate polity will turn on a theory of the trade-offs between the rule of law and other ideals of political morality. I shall not take sides in this issue, except to say that the rule of law is important enough to concern anyone whose theory of rights requires breaching it: we attach value to the fact that men are subject to legal rules rather than to other men. (5)
The rule of law is usually understood as requiring that even rule-makers be subject to legal rules. …