THE RULE OF LAW IN HISTORICAL PERSPECTIVE, PART 2

WILLIAM BURNETT HARVEY

INDIANA UNIVERSITY SCHOOL OF LAW – BLOOMINGTON

Basic in the thinking of both Dicey and Hayek is a sharp dis­tinction between law and administration. Law was conceived by them as a body of rather specific rules applied by the ordinary courts, while administration meant discretion and official arbi­trariness. Yet such a sharp distinction was not descriptive even in Dicey’s day and is even less realistic in the middle years of the twentieth century to which Hayek speaks. Surely no one beyond his first year in law school conceives of law as directions printed in heavy black type, susceptible of literal and mechanical appli­cation by the courts. Discretion in the administration of the law by the courts is inevitable. It appears when a judge scales punishment to fit the criminal and not the crime; it is invoked by the application of such concepts or standards as reasonableness, bona fides or the jurisdictional test in equity of the inadequacy of the remedy at law. The crucial point, perhaps, to the theories of Dicey and Hayek, is who exercises the discretion. As Sir Ivor Jennings has pointed out, Dicey’s asserted goal of “rule by the law alone” comes close to meaning “rule by the judges alone.”7

Finally, insofar as Dicey proposed the Rule of Law as a sub­stantive safeguard of individual rights against the ravages of government, he is caught in an irreducible contradiction. His entire catalog of the ancient rights of Englishmen, developed and protected by the ordinary courts, stands under the deep shadow of the initial characteristic of English constitutional law — the su­premacy of Parliament. Ultimately it would seem therefore that the preservation of individual liberties is less dependent upon the Rule of Law, as conceived by Dicey, than upon the threat of political action should the acceptable bounds for official action be exceeded.

Thus this first concept of the Rule of Law purports to reflect certain constitutional principles of 19th-century Britain. On an­alysis, it seems more accurately reflective of the political ideology of a late 19th-century Whig valiantly fighting a rear guard action against the inevitable governmental developments arising from an increasingly complex, technological society. In terms of the allo­cation of governmental powers essential to an adjustment of the legal order to the life of society, the theory implicitly prefers the

1 Jennings, op. cit. supra note 5, at 294.

dominance of the judicial branch. Its political thrust is inherently conservative.

The second basic meaning of the Rule of Law is essentially procedural. The following succinct statement by Professor Harry Jones of the Columbia Law School provides a highly satisfactory summary:

“For want of a commonly understood American version of the rule of law, I will hazard my own understanding of the term’s connotation in the American legal order. The rule of law is a tradition of decision, a tradition embodying at least three indispensable elements: first, that every person whose interests will be affected by a judicial or administrative deci­sion has the right to a meaningful ‘day in court’; second, that deciding officers shall be independent in the full sense, free from external direction by political and administrative supe­riors in the disposition of individual cases and inwardly free from the influence of personal gain and partisan or popular bias; and third, that day-to-day decisions shall be reasoned, rationally justified, in terms that take due account both of the demands of general principle and the demands of the par­ticular situation. This enumeration does not purport to ex­haust the meaning of the ‘rule of law’; doubtless there are other essential attributes to be included in the term’s full in­tension. But any American lawyer would say, I think, that the three features just given characterize the best of our legal insti­tutions — for example, our criminal litigation when properly conducted — and make up the adjudicative ideal of our legal tradition.”[1]

This concept, usually referred to in this country as due process of law, surely is part of the conditions of responsible and re­spectable government. Yet if the Rule of Law purports to encom­pass all significant aspects of the individual’s relation to his gov­ernment, this procedural perspective can be only a partial view. In the Anglo-American common law tradition it is not surprising that regulative ideas germane to the judicial process should claim the center of the stage. Yet these ideas speak indirectly, if at all, to the innumerable impacts between government and citizen which do not result in litigation either in the ordinary courts or in the new administrative agencies exercising quasi-judicial powers.

Perhaps the gravest inadequacy of this primarily procedural view of the Rule of Law is its lack of relevance to the legisla­tive process and its unresponsiveness to felt demands that the legislative power be subjected to substantive curbs. One poignant illustration of this point comes from the Union of South Africa.

In the pre-dawn hours of December 6, 1956, one hundred and fifty-six persons were arrested in various parts of the Union and flown by military aircraft to Johannesburg. There they were charged with high treason and other serious crimes. This miscel­laneous group was made up of Europeans and Africans, of laborers and professors, of militants and pacifists, of Christians and pagans. They shared only one obvious characteristic — an avowed opposi­tion to apartheid, the South African version of white supremacy.

The crimes charged merit some explanation. The first was high treason. In South Africa, this is a Roman-Dutch common law offense of exceedingly broad inclusion, punishable by death. For example, one commentator suggests that it apparently may be com­mitted merely by suppressing information.9 The accused were also charged under the Riotous Assemblies Act which makes crim­inal a wide variety of acts “calculated to engender feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand. . . .”10 Why the actions of the government in implementing its policy of apartheid are not in direct contra­vention of this act is somewhat difficult to discern. The govern­ment, however, charged that the activities of the accused in op­posing that policy were in violation of the statute. The third basis of charge was found in the Suppression of Communism Act which defines “Communism” broadly enough to include any scheme or doctrine “ (b) which aims at bringing about any polit­ical, industrial, social or economic change within the Union by the promotion of disturbance or disorder, by unlawful acts or omissions or by the threat of such acts or omissions or by means which include the promotion of disturbance or disorder . . .” or “ (d) which aims at the encouragement of feelings of hostility between the European and non-European races of the Union

0 Dr. Eduard Hambro, former Registrar of The International Court of Justice, in 8 Bulletin of the International Commission of Jurists 46, 48 (1958).

  • Riotous Assemblies (Amendment) Act, Act No. 19 of 1930, § 1, amending Riotous Assemblies and Criminal Law Amendment Act, Act No. 27 of 1914.

the consequences of which are calculated to further the achieve­ment of any object referred to in paragraph (b).”[2] Again the apartheid government seemed to be exempt from accusations of this broadly-defined “Communism,” while those in opposition, even Christian moderates like Chief Albert Lithuli, head of the African National Congress, are “Communists” to be suppressed.

We cannot take time to follow the trial through its various proceedings in the tedious months and years which followed the arrests. My point can be made much more simply. The judges as­sembled to try the accused were steeped in the Roman-Dutch law, which has a tradition of judicial fairness comparable to our own. The proceedings have been orderly and full opportunity has been given to the defendants to be represented by counsel and fully heard. Thus there were procedural protections in full measure. But does all this make it possible to say that the Rule of Law prevails in South Africa?

Commenting on the South African Treason Trial, Dean Erwin Griswold of the Harvard Law School has stated succinctly the problem confronted by one who measures the Rule of Law pri­marily or exclusively by the conditions of a fair trial. He said:

“No question can be raised about the competency or the capacity of the court. Each of the judges named is a member of the Supreme Court of South Africa for one of the Provincial Divisions. South Africa has long had excellent courts main­taining high standards of fairness and justice; and this court will, of course, fit into the South African judicial tradition. Nevertheless, no matter how fair and competent a court may be, if the underlying legal situation is deeply unsound the Court may, simply because it must act according to law, be compelled to unsound results.”[3]

It seems clear, therefore, that if the Rule of Law is to define adequately the relations of men to civil government, it cannot focus entirely on one manifestation of governmental power. It must comprehend the legislature and the executive, as well as the courts.

The third basic meaning of the Rule of Law, to be discussed here, is the most ancient. Like many of our ideas it was expressed

in the thought of ancient Greece. Aristotle, you will recall, ob­served in the Politics:

“He who commands that law should rule may thus be re­garded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast. Appetite has that character; and high spirit, too, perverts the holders of office, even when they are the best of men. Law [as the pure voice of God and reason] may thus be defined as ‘Reason free from all passion.’ ”13

This same view appeared in the earlier quotation from Cicero’s De Re Publica. Many other exponents of this view of the Rule of Law, ancient and modem, might be cited, but I prefer to use as illustration the views of a contemporary American, far removed from sheltered academic halls.

During his year in the presidency of the American Bar Asso­ciation, Charles S. Rhyne, expressed on a number of occasions his view of the Rule of Law. At the dedication of the Association’s memorial to Magna Carta at Runnymede, Mr. Rhyne declared: “What do we mean by freedom under law? We mean a great deal more, surely, than mere obedience to written laws. We mean acknowledgement of the fact that there are moral limitations on civil power. We mean that human beings have rights, as human beings, which are superior to what may be thought to be the rights of the state or of society.”14 Though spelled out more fully in later statements15 the essentials of Mr. Rhyne’s view appear here: there is an order, a moral order, in the universe which is per­ceptible to man through his rational faculties. This order ascribes to the individual a status, a dignity, and certain fundamental rights. These rights antedate civil government and hence serve as morally, perhaps even legally, valid limitations on the power of government which primarily exists to safeguard those rights.

So stated, this view is a familiar one. It expresses the ancient belief in a law of Nature and of Reason. But unlike the classic view of Aquinas which postulated the Law of Nature as a criterion for

W Aristotle, Politics, bk. Ill, XVI, § 1 (Barker transl. 1946).

14 The Magna Carla Memorial Ceremonies: Runnymede, Sunday Afternoon, July 28, 43 A.BA.J. 900, 905 (1957).

is Rhyne, The President’s Page, 4A A.BA.J. 195 (1958); Rhyne, “Law Day – USA.”: Emphasizing the Supremacy of Law, 44 A.BA.J. 313 (1958); Rhyne, World Peace Through Law: The President’s Annual Address, 44 A.BA.J. 937 (1958).

human law to provide for the common good of the community, for Rhyne the central datum appears to be the individual with inalien­able rights. Thus Rhyne echoes the language of John Locke and the Declaration of Rights of 1688, of the American Declaration of Independence and the Bill of Rights — and of the Supreme Court of the United States in the period when it invalidated social legis­lation under the banner of the inviolable rights of liberty and property.

A fair appraisal of Natural Law thought is exceedingly diffi­cult and requires far more time than is available today. Within the main stream are varying cross-currents, forming eddies of pro­found significance. They cannot be explored in full. We know that a belief in Natural Law has often been a rallying cry, enlisting men in the fight for human dignity and a fuller, richer life. Yet this same belief has at times served as shield and buckler for those who resisted the felt needs of their times in blindness to the vision of a better tomorrow.

I would make only two specific comments on the utility of a belief in Natural Law as the basis for a theory of the Rule of Law. First, despite a widely shared confidence in man’s rational faculties and in his capacity to perceive supra-mundane norms, history has not shown stable agreement on the substantive content of those norms. When Natural Law thinkers have seriously attempted to reconcile universally valid norms with the fluid needs of society in time and space, they have formulated the principles of Natural Law at such levels of generalization that the norms become purely formal, providing no significant guidance in solving the complex and harrying problems of the legal order. At the other extreme are those philosophers who, in attempting to delineate a substantive code of Natural Law, show a remarkable tendency to up-grade the positive legal system with which they are familiar to the level of cosmic norm. A central difficulty with Natural Law theory, then, is epistemological — how can we know it and how can we test the validity of the insights of those who offer precepts as the Law of Reason, of Nature, or of God?

The cardinal merit of Natural Law thought suggests at the same time its second basic inadequacy, even danger. The Natural Law exponent has always stood ready to remind the positive legal order that it is not the ultimate criterion of justice, that the positive law is subject to evaluation, and perhaps, invalidation, by reference to a higher standard. It is, of course, entirely appropriate to remind

those exercising civil power that theirs is a derivative and not ulti­mate authority, that it must be either justified and supported or condemned and displaced, by reference to a test of purpose —a purpose defined by an extrinsic set of values.

In subjecting the positive law to such a continuing critique, much Natural Law thought has insisted that basic harmony with supra-positive standards is of the very nature of the law. Thus the distinguished German philosopher, Gustav Radbruch, late in life and after the tragic experience of Nazi tyranny, appears to have concluded that certain moral restraints were implicit in the idea of law itself and that official action transgressing those restraints is not law, no matter how duly enacted, adjudged, or executed.16

One can sympathize with this insistence on the intimacy of law and morals and appreciate its utility in resisting the tyrant, while at the same time recognizing the danger in it. Briefly stated, the danger is this. It is a regrettably short step from insistence that nothing is law unless it is right, to the conclusion that whatever is law, in terms of legal enactment or declaration, is therefore right. From this perspective can be seen the significance of the Nazi slogan — Gegetz ist Gegetz, Law is Law. This is, of course, an ex­treme manifestation of the recurrently conservative impact of Natural Law thought — a tendency to take the old, the familiar, the existent, the legally-enacted, and defend it from attack on the ground that it represents the natural order of things. Implicit there­fore in Natural Law philosophy is the danger that it will devour itself, that instead of providing a significant basis for evaluating the positive law, it rather will substantially immunize the positive law from criticism and evaluation.

In brief summary, three basic meanings of the concept of the Rule of Law have been pointed out. The first is identified with certain assumed constitutional principles of 19th-century Britain; the second emphasizes the conditions of a fair trial, subsuming much the same specifics as the more typically American concept of due process of law; the third represents a more pervasive effort to subject government and law to the restraints of an axiology deriv­ing its validity from human reason, nature, or God. Each seems to me a partial view, susceptible of distortion.

18 See Radbruch, Vorschule der Rechtsphilosophie 27, 28 (1947); Radbruch, Gesetz- liches TJnrecht und Uebergesetzliches Recht, 1 Sueddeutsche Juristenzeitung 105-07 (1946); Radbruch, Fuenf Minuten Rechtsphilosophie, reprinted in Wolf, Radbruch-Rechtsphilo- sophie 835-37 (1950).

Those who are familiar with the work of the International Com­mission of Jurists may question why nothing has been said of its developing concept of the Rule of Law. The omission at this point is intentional. I have tried to suggest certain basic emphases in Rule of Law thinking. The work of the International Commis­sion of Jurists builds on these earlier formulations but is eclectic and much more broadly responsive to current needs. More will be said about the views developing in the Commission in my next lecture.

[1] Jones, The Rule of Law and the Welfare State, 58 Colum. L. Rev. 143, 145-146 (1958).

[2]  Suppression of Communism Act, Act No. 44 of 1950, §1.

[3]  Griswold, Treason Trial in South Africa, The Times (London) Sept. 25, 1958.

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