THE RULE OF LAW IN HISTORICAL PERSPECTIVE, PART 1

WILLIAM BURNETT HARVEY

INDIANA UNIVERSITY SCHOOL OF LAW – BLOOMINGTON

Events of the past two decades have made imperative a funda­mental re-examination of the basis of government and the legal order. The gross inhumanities of the German and Japanese regimes during the Second World War are fresh in our memories. In many areas of the world today, the force of law is being used for the systematic suppression of claims to freedom and human dignity. The revolutionary ferment of the post-war years has brought into existence new governments with the task of determining their fundamental orientation and the direction of their legal orders.

In such times the basic problems of government and law de­mand re-examination. Older societies, contemplating the barbar­ities of their own governments or of those they have defeated with the incalculable cost of war, press the question — what safeguards can and should be erected to restrain within decent bounds the acts of public officials. The emerging societies and older ones as well challenge traditional concepts of government and law with insistent demands for positive action on broader fronts to pro­vide a better life for the people.Events of the past two decades have made imperative a funda­mental re-examination of the basis of government and the legal order. The gross inhumanities of the German and Japanese regimes during the Second World War are fresh in our memories. In many areas of the world today, the force of law is being used for the systematic suppression of claims to freedom and human dignity. The revolutionary ferment of the post-war years has brought into existence new governments with the task of determining their fundamental orientation and the direction of their legal orders.

In discussion of these problems the phrase, “the Rule of Law,” recurs. In recent years two great international conferences, re­flecting the principal political division of the world, have met in Chicago and Warsaw to examine the Rule of Law in the West and in the East. The American Bar Association, under the leader­ship of its recent president Charles Rhyne and with the imprimatur of the President of the United States, has inaugurated an annual “Law Day” to memorialize’ our devotion to the Rule of Law. A dis­tinguished university has established a “World Rule of Law Cen­ter” to further the study of this concept in international affairs.

All this is probably worthwhile but what do we mean by the Rule of Law? Are we using a notion of determinate content to illuminate the dark comers of government and law, or are we tilting with Leviathan with only the emotive force of a cliche?

It seems especially appropriate in a gathering of this kind to turn our attention at least briefly from the technical knowledge and skills of our profession to a consideration of the meaning and func­tion of this concept and, hopefully, to the fundamentals of the legal order.

It would be a digression today to speculate on the origins of government and law in small, primitive kinship groups. It is enough to note that man’s life in society has seen an inexorable movement toward larger governmental units and toward ever- widening areas of official power. This development had not pro­gressed beyond the city states of ancient Greece, however, when the philosophers raised the basic questions which still perplex men’s minds: Whence comes the authority of the State? What title to re­spect and observance has the law? And, ever recurring in different contexts, the agonizing dilemma of Antigone whose conscience and sense of justice demanded that she perform the customary burial rites for her brother, though Creon, regent of Thebes, had decreed that he should remain unburied as punishment for his treason. This apparent conflict between law and justice is still a part of our daily lives.

Greek thought, funneled into the main stream of Western ideas about government and law primarily by the Roman Stoics, postu­lated a view of the universe, of man, and of law which retains its vitality today. Cicero stated:

“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it sum­mons to duty by its commands, and averts from wrongdoing by its prohibitions. . . . We cannot be freed from its obliga­tions by senate or people, and we need not look outside our­selves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. . . -”1

Christian thought built on these foundations and provided a theory of government and law which appeared to reconcile authority and justice. The cosmic order, emanating from the mind of God, ac-

cording to St. Thomas Aquinas, to some extent is perceptible to man’s rational faculties and, as Natural Law, provides a uni­versal standard for the formulation and administration of human law by those invested with the care of the community. The ob­jective of government and law is thus the common good. While some deference even to unjust law may be warranted by the gain of civil peace, the commands of reason are ever present to guide the lawmaker, to inform and support the governed, and in the ex­treme case to justify a rejection of the demands made by human law.

The Reformation ended the harmony of medieval thought which was based on this view. The unity of the Church was de­stroyed — with a consequent undermining of confidence in a uni­versal and cognizable standard of justice. Concurrently the emerging spirit of nationalism produced increasingly powerful states whose diverse enactments rendered untenable the earlier justification and validation of positive law as the enactment of universal justice. To explain and justify the law-making and -enforcing aspirations of the new national states, the theory of territorial sovereignty was developed. While not the earliest, certainly one of the most pow­erful formulations of this theory was presented by Thomas Hobbes in 1651. Starting from the postulate of a pre-governmental condi­tion of man, which was a war of all against all and in which the life of man was “solitary, poor, nasty, brutish and short,” Hobbes attributed the institution of civil government to a compact grant­ing unlimited authority to the sovereign. To Hobbes, the meaning and content of justice were determined by the sovereign’s enact­ments of positive law. The only consolation he offered to men ground under the heel of Leviathan, the mortal God, was the con­templation of their far worse condition in the absence of civil government.

Building on the foundations provided by Hobbes, John Austin in the early 19 th century defined law as sovereign command, deriv­ing its peculiar character from the naked fact that the manifesta­tion of the sovereign’s desire is coupled with a sanction, the threat of an evil, to assure compliance. It would indeed be unfair to Austin and many other positivists to suggest they ignored or were insensitive to the problem of evaluative standards for the positive legal order. Austin expressed his belief in a law of nature and suggested that the principle of utility was man’s best index to

this standard. But evaluative standards were carefully delimited from law and from the proper province of jurisprudence. It is not surprising, therefore, that the developed positivistic tradi­tion, whether derived from Austin or his modem continental coun­terpart, Hans Kelsen, has accepted the postulate of a going legal order, based on the sovereign monopoly of force, and has insisted that the primary, even exclusive, task of jurisprudence is to analyze and understand that order. Judgment or evaluation is someone else’s function.

The significance of these philosophical developments, divorc­ing law from evaluation, is brought into sharp focus by tech­nological, economic, and sociological developments of the last century and a half. The Industrial Revolution inundated the simple economy of household craft and stimulated the growth of great urban centers. The production and distribution of goods have become increasingly complex. Channels of commerce have lengthened to the far comers of the world and the significant forms of wealth have been fundamentally altered.

It was, of course, inevitable that such revolutionary develop­ments in socio-economic conditions should have affected deeply the nature and function of government and law. Demands have been insistent that government act to correct social and economic mal­adjustments and to provide public services. In meeting these demands the apparatus of government has grown phenomenally, with the result that official interest and regulation range broadly over the most significant aspects of men’s lives.

Against the background of a positivistic theory of law can we fail to be concerned by this development of the modem state? With its reserved monopoly of force, its economic power, its overpowering resources of information to be disseminated, or withheld, or spread in partial or distorted forms, with its fan­tastic proliferation of legislation and decision, how can we cope with it, whether as an individual, a minority group, or the broad mass of the population? Lord Acton’s famous aphorism that power tends to corrupt and absolute power corrupts absolutely focuses historic experience on our dilemma. In a demanding, complex society like that in which we live, it is unthinkable that governmental authority and the administration of justice should be reduced to the elemental level of preserving the public peace.

Yet how can we reconcile such great and pervasive power with the preservation of those values we cherish most highly?

It is, then, with this problem in view that we turn to an analysis of the Rule of Law. One common meaning of the term may be mentioned briefly and immediately put aside as not significantly responsive to the present interest. This meaning equates the Rule of Law merely with the existence of public order maintained through the systemized application or threat of force by a modem state. In this sense, the Rule of Law exists in every developed state, is not dependent upon any particular ideology, and applies no restraint on official action in relation to individuals or groups. On this basis, it is plausibly arguable that the Rule of Law is furthered as the scope of legal regulation is extended into the lives of citizens. In fact, this argument was made by the apologists of the late Nazi and Fascist regimes.

It is obvious that more than this notion is involved in the thought of those who offer the Rule of Law as a bridle for Levia­than. In their views, may I identify very briefly three basic meanings of the Rule of Law and suggest some criticisms of each concept.

The first of these, while in no sense prior in point of time, perhaps deserves first mention because of its association with Pro­fessor A. V. Dicey, who popularized the term, the Rule of Law. In his well-known work on The Law of the Constitution which first appeared in 1885, Dicey declared that since the Norman conquest two features had characterized English political institutions. The first of these was the supremacy of the central government, and specifically in modern development, the supremacy of Parliament; the second was the Rule of Law. To Dicey this second feature had three distinct facets: first, “that no 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.”[2] Therefore the Rule of Law, accord­ing to Dicey, is “contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or dis­cretionary powers of constraint.”[3] Second, the Rule of Law meant

that every man was subject to the ordinary law of the land and came within the jurisdiction of the ordinary courts; therefore Dicey vigorously rejected the idea of a separate body of adminis­trative law applied by special tribunals to the conduct of officials, best exemplified in the French Conseil d’Etat. Third, according to Dicey, the principles of English constitutional law, and spe­cifically the rights of individuals, were derived from judicial de­cisions and not from written constitutions.

Before commenting further on Dicey’s classic formulation, a Word might he said about the extreme theory of one of Dicey’s modem disciples, the Austrian economist, Friedrich Hayek. In his widely read book, The Road to Serfdom, Hayek asserts that the Rule of Law, stripped of all technicalities, means “that government in all its actions is bound by rules fixed and announced before­hand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circum­stances and to plan one’s individual affairs on the basis of this knowledge.”4 Thus the Rule of Law, according to Hayek, is anti­thetical to state planning, for planning necessitates the exercise of official discretion in regulating the affairs of determinate people.

Much criticism might be levelled against the theories of Dicey and Hayek. The former purported to describe the operative constitutional principles of late 19th-century Britain; yet even at this level his view was partial and hence distorted.5 He ignored the many privileges, powers, and immunities of the Crown which then existed and produced essentially different treatment of offi­cial and private conduct. He ignored the developing adminis­trative agencies in Britain and grievously misunderstood the nature of administrative justice on the continent which has suc­ceeded far better in developing meaningful review of adminis­trative action and curbs on abuses than have been achieved, even today, in England.6

[2] Lecture delivered on June 21, 1960, as part of a series of lectures on the general topic, “Post-War Thinking About the Rule of Law,” given in connection with the Special Summer School for Lawyers held at The University of Michigan Law School, Ann Arbor, June 20-July 1, I960.—Ed.

t Professor of Law, University of Michigan.—Ed.

[2] Dicey, The Law of the Constitution 183-84 (6th ed. 1902).

s Id. at 184.

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