The Rule of Law is
Indispensable but Insufficient

Lesen Sie die deutsche Version hier.

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.

Administrative overreach

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,…