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The rule of law is much in vogue today on all sides of the political spectrum as an indispensable constraint on the exercise of political power. Historically, the phrase was first introduced to counter the obvious totalitarian risk associated with this chilling maxim of Justinian: quod principi placuit legis habet vigorem – that which is pleasing unto the prince has the force of law. Under this legal regime, despotic impulses from a king or a legislature can overcome the steady and even-handed application of general legal directives known and articulated beforehand that give ordinary individuals fair notice of the line between legal and illegal conduct in both the public and private law. In both contexts, the dominant conception, closely associated with John Locke and Friedrich Hayek, demands all parties should enjoy the venerable due process guarantees of natural law, including the right to be heard and to present evidence on one’s own behalf before a neutral judge.
Note that this “thin” conception of the rule of law makes no reference to the substantive content of the applicable rules. Yet I know of no serious thinker who rejects this minimum conception of the rule of law, even if there are many who think that a thicker conception of the rule – i.e., one with serious substantive commitments – is needed to complete the system. But even before we reach that issue it is important to note that the appeal of the rule of law is ubiquitous. It is key both in continental European countries that derive from Roman law, and in common law countries that follow the British tradition, and other countries of various wealth and development that incorporate elements of either or both traditions.
Yet worldwide, this simple procedural model of the rule of law runs up against the simple proposition that the greater complexity of the administrative state makes it ever harder to satisfy these conditions. The first point is that virtually everywhere modern administrative law is not overly fond of black-and-white rules, but constantly seeks to accommodate an expanded set of substantive goals by developing general principles – the need for equity in the workplace, to control threats to the environment from all sorts of activities, from mining to using fossil fuels. These broad substantive aims cannot be implemented by legislatures, whose broad principles commonly devolve into multifactorial tests whose content is necessarily refined and amplified, first by administrative regulation and then by specific rulings addressed to individual cases. Such conflicts include efficient reductions of pollution with special solicitude for poorer or marginalized groups.
Enormous amounts of slippage can take place within this framework, even on exclusively technical issues. The delegation of administrative authority can empower an unelected board whose own agenda can easily deviate from that of the legislative body, opening a door to political intrigue that is difficult to close. Ideally, the delegated body should fill in the details of basic schemes instead of developing its own schemes. But many courts are unwilling to impose tight restraints out of fear that they lack the technical expertise to second-guess an agency in its area of supposed competence. Thus, many courts prefer to defer to such administrative agency not only on factual matters, but also on the interpretation of the governing legal principles. Administrative activity inevitably runs the gamut from sensible to foolhardy, so that in any given case it is unclear whether an agency has exceeded its administrative authority or whether a court has abused its oversight authority.
It is important to note the enormity of the stakes. A statute may give an agency the power to regulate the use of navigable waters. One reading of that command allows the government to dredge and fill waterways to keep the channels of transportation open. A second allows the government to issue permits to regulate the construction of businesses and homes located miles from any navigable river in order to prevent the possibility of future pollution. Another statute may require that power plants adopt the best systems of emission control. The narrow view permits the government to put safety valves on any piece of equipment, while a broader view includes in emissions control the power to reduce the use of fossil fuels, coupled with a forced reliance on wind and solar energy.
Sadly, it is not clear how an appeal to the rule of law finds the middle ground. In my estimation, the best approach defers to administrative agencies on findings of fact but denies any such deference on matters of legal interpretation of statutes and regulations, where courts, regardless of subject matter, tend to have a comparative advantage. But the deeper problem is that the range of potential solutions in all these areas is so great that the discretion exercised by either administrators or judges could be the soul of good reason in some cases, and destructive of the overall legislative intent in the others. The plot thickens because many ambitious regulatory schemes may be challenged on the grounds that they abridge freedom of religion (for instance, the lockdown of churches during Covid-19), freedom of speech (e.g., by limiting criticism of government Covid programs), or constitute takings (e.g., by onerous health-related restrictions on the use or disposition of private property). At this point, the strength of constitutional norms could influence how regulation is interpreted.
The rule of law alone is insufficient
The multiple challenges that the administrative state poses to the rule of law gives rise to a second round of attack: The thin model of regulation, even if achievable, leaves much to be desired because its procedural virtues are at most necessary conditions for the rule of law. But it is too easy to imagine that many totalitarian regimes could impose deadly sanctions while giving hearings before impartial judges and enforcing rules that allow state agents to arrest speakers who object to any government policy. Such rules may also outline precise procedures that allow governments to shut down religious bodies after full and fair notice, or let government agents seize private homes and businesses after any government statement of public need.
It is no accident that each of these examples reflects a situation in which constitutional claims against the suppression of speech, liberty and private property are at their highest in Western democracies. It seems therefore virtually incumbent upon us to add in these safeguards. And once that is done, it becomes clear that the connection between the rule of law and classical liberal theory becomes tight. The only way to ensure the control of discretion sought by the rule of law is to develop a comprehensive system of individual property rights with clear boundary conditions and clear rules of the road. This general prescription does not preclude the state from punishing speech that is fraudulent or an incitement to violence, religiously motivated human sacrifice, or the use of poisonous gases to overthrow the government. Answering this challenge in turn leads to the question of which proposed justifications should be included in the system, and which excluded.
At this point, we come to another junction in the road. The classical liberal position has no difficulty with the use of some form of rate regulation to deal with natural monopolies that cannot sensibly be broken up, nor with the use of antitrust laws to stop cartels and mergers that operate in restraint of trade. But that theory precludes many of the common justifications for government power, including the notion that some inequality of bargaining power justifies the formation of unions, or the application of some antidiscrimination law in competitive markets. Both Great Britain and the United States resisted these incursions until the first half of the twentieth century, where the rise of unions has in turn generated multiple efforts to limit them, without eliminating their monopoly power. In my view, the huge discretion that these laws give to administrators is a strong strike against the initial creation of these monopoly powers, especially concerning government workers who supply such key services as sanitation, education, and law enforcement, where the free entry of nonunionized firms cannot serve as a limit on union power.
«At this point, the rule of law is a useful device
to limit discretion. But it is never powerful
enough to dictate sound collective decision.”
Even this aggressive application of the strong rule of law approach runs into insuperable objections when governments must take key actions dealing with the provisions of public goods: how much to spend on public roads and infrastructure; how much to spend on military operations, and how and when to deploy these resources against our enemies or on behalf of our allies and friends. At this juncture, a move toward a thinner conception of the rule of law becomes inevitable even in well-governed states. Procedures must be designed to organize the level of deliberation required before some government actors are allowed to set budgets, train and compensate key personnel, enter into treaties, declare war, and conduct operations, especially when the polity is sharply divided on matters of policy. At this point, the rule of law is a useful device to limit discretion. But it is never powerful enough to dictate sound collective decision, all of which explains why politics contains at its core a contestable judgment beyond the power of any lowly political theorist to correct.