The guest for the latest RevDem Rule of Law podcast is Professor Jeff King. He is a Professor of Law at University College London, and he is the Director of Research at the Bingham Centre for the Rule of Law. He has previously acted as a legal adviser to the House of Lords Select Committee on the Constitution. The conversation with Oliver Garner discusses Jeff’s ‘regulatory’ conception of the Rule of Law and its application to contemporary challenges.
Your most recent contribution on the Rule of Law is part of the upcoming Cambridge Handbook of Constitutional Theory co-edited with Richard Bellamy. Your paper, titled The Rule of Law, breaks down concepts of the Rule of Law into two approaches: ‘legal essentialist’ and ‘limited government’. Can you explain this for our listeners?
Sure. It’s a big question so I need to explain the distinction and then say why I took the side of the limited government tradition.
There has for a long time been a distinction offered between formal and substantive conceptions of the Rule of Law. The former category included conceptions that emphasised formal properties that make for a well-functioning legal system, such as general, prospective, open and clear laws that were applied by independent and impartial judges, and not excessive executive discretion. Some theories suggested that access to justice was required by a formal conception. Leading examples include the account by Lon Fuller in his book The Morality of Law and of Joseph Raz in his book, The Authority of Law. Substantive theories by contrast included these elements but often claimed that the Rule of Law also required the protection of human rights. A version of that argument could be attributed to scholars such as Ronald Dworkin, and the influential account of the late judge Lord Tom Bingham. You see elements of it in the account of FA Hayek, especially in his earlier book, The Constitution of Liberty.
When writing about the Rule of Law I found that the grounds for distinguishing between these accounts was not always illuminated well. Why did thinkers develop their list of Rule of Law features? I posit in my chapter – and here I derived insight from discussions with others and most notably with an Australian legal scholar Julian Sempill – that we can distinguish between two theoretical approaches. One such approach seeks to derive an account of the Rule of Law from a theory of what the essence of legality is. I call this the legal essentialist approach. It posits that a legal system needs to have certain things to function as law, instead of, say, raw political power. Both Lon Fuller and Joseph Raz define it in that way, and so too does Jeremy Waldron. They ask: what are the structural conditions for subjects to be guided by law and law to function as law? And their answer to this question is their account of what the Rule of Law is. In this approach, the Rule of Law is derived from a theory of what law itself is.
There is a quite different tradition, on the other hand, that emphasises the Rule of Law as a normative political value. It is derived from a political tradition – liberalism – that emphasises the importance of individual liberty. This has been called the ‘limited government tradition’, a label I’ve gotten from the work of Julian Sempill. The Rule of Law in this tradition is defined as a normative political value, one which states that, without legal controls, political authority over the individual is arbitrary and therefore unjustified. The basic idea is that, without law, there is only arbitrary and unaccountable power, and that is incompatible with the very idea of liberty. Some famous statements in the history of political philosophy evoke this kind of idea, even if the modern conception of the Rule of Law is different from anything considered by those writers. So, Aristotle said that it is better to live under the governance of laws and not men. The writer James Harrington claimed that that where society is founded on the foundations of common rights and interests it is ‘the empire of laws and not men.’ In his Second Treatise of Government, John Locke had a quite famous statement – ‘where law ends, tyranny begins.’
That kind of impulse is behind the modern preoccupation with understanding the Rule of Law as the legal antithesis of arbitrary political power. It’s not hard to see why the protection of human rights at some point makes it on to this list – although the intellectual basis for the move is at times mysterious, and not uncommonly denied even by people working broadly in that tradition.
Now, both of these approaches to defining the Rule of Law have their adherents. The first is more common among legal theorists. The second is closer to the way the idea is deployed in most real legal systems and international documents, and also in the work of theorists like Gerald Postema, Martin Krygier, Julian Sempill, and myself.
It seems to me that the limited government account perhaps takes a more contextual approach to what the function of law is within a society rather than just that narrow focus on law itself.
You argue that the limited government account is more persuasive than the legal essentialist account due to how it deals with the three puzzles of anarchy and order, discretion, and the historical background of the Rule of Law. Could you summarise your argument for our listeners?
I was led to this by working with a series of intuitions about the right way to understand the Rule of Law idea. I address the first point which is more minor. I felt that there is an intellectual history of thinking about the Rule of Law that doesn’t start with A.V. Dicey in the beginning of the 20th century. It’s found in constitutions and legal documents around the world and that intellectual heritage is part of the appeal of the idea and how this occurred. The formalist approach for the most part totally disregarded that background, whereas the limited government approach made great sense of the canons when it was set out. This point is not really a conceptual flaw but it points out a limitation of the explanatory appeal of the formalist approach.
Another and more serious issue is that the formalist approach does not explain well the intuition that anarchy is incompatible with the Rule of Law. In my view, anarchy is a real social problem – just like tyranny. I mean here a lack of legal regulation, the Wild West etc. The approaches taken by Fuller and Raz, and to an extent Waldron, don’t really explain well why anarchy is not compatible with the Rule of Law. In fact, Raz even says that the Rule of Law is a value that exists to deal with the negative consequences that having law in the first place produces. I think that’s completely wrong.
The most obvious is interpersonal violence, theft, robbery, and the existence of paramilitary groups and militias. The legal essentialist tradition didn’t have a good account of those things that should be regulated by law. It only had an account of how law should be created and function if you decide to have law in the first place. That’s a deficiency. By contrast, the limited government tradition has a clear answer here – you need law to regulate interpersonal coercive power of one person over another. That’s a short, snappy and largely correct answer that immediately corresponds with our considered intuitions about the Rule of Law idea. That’s two-nil for the limited government conception.
A third issue for the formalist approach, but also the limited government approach, is how it deals with the problem of administrative discretion. The formalist approach either denies that there is any issue with extremely broad administrative discretion – that is Joseph Raz’s approach – or is ambivalent about it – that is Lon Fuller’s approach. Raz says that it’s true that the Rule of Law is incompatible with the modern welfare and regulatory state but that’s not a problem because it is only one constitutional value – there are others. I think that argument fails to reconcile the Rule of Law value with our other constitutional values and we need to reconcile them to make the scheme of governance a more or less coherent whole. We need to do the same with our conceptions of democracy and human rights, as leading theorists like Dworkin, Waldron, and Bellamy have done. There can be tragic choices and trade-offs in the margins of policy, but you can’t say convincingly that the entire modern state is at odds with the Rule of Law and that you are untroubled by it. The limited government approach is a bit better in this regard, by positing that discretion should be structured by law where possible but accountable in judicial review of administrative action. However, some writers who adopt a libertarian version of the Rule of Law under the ‘limited government conception’ advance this libertarian conception, and so while the approach is better it needs refinement in my view.
I find what you have said there about anarchy very interesting because I have often thought that perhaps the purpose of law is to prevent violence from below at the societal level, and then the Rule of Law becomes necessary to prevent that violence then occurring from above, from the state, once it has been monopolised.
You mentioned there the possibility of sliding into libertarianism and you say in your paper that this can be a risk with the limited government conception – it could become too hostile to all forms of state power and the functions that the state has to provide for its citizens. Therefore, you propose a ‘regulatory conception’ of the Rule of Law. Could you explain how this conception incorporates substantive policy objectives such as the welfare state?
Yes, the connection is built in the following way. The limited government tradition to the Rule of Law emphasizes the importance of controlling arbitrary power with law.
Other writers have begun to notice this as well. They think that private coercive power – like militias, sexual predators, etc. – needs to be legally regulated and controlled in a Rule of Law society. I go a step yet further than any others, though. My argument is that private non-consensual exploitation should likewise come within the ambit of what requires legal regulation. That is what I call the social dimension of the Rule of Law. Now, you may ask, what is exploitation, exactly? It sounds Marxist. But exploitation is not just a Marxist concept. I employ a non-Marxist, entirely liberal version. There are varying accounts of it, but I stipulate a particular version, as I am concerned with non-consensual exploitation whereas much of the philosophical literature is concerned with the wrongness of genuinely consensual exploitation. So, the definition I adopt is that exploitation occurs where one person takes unfair advantage of another person (e.g. they wrong them), where that latter person has no real choice but to accept the arrangement. The classic scenario is where a person with a rescue vehicle charges an exorbitant rate to carry someone to safety. In the 19th century, an example was where factory owners made extraordinary profits while paying what was barely a subsistence wage for an incredible number of working hours per week. My argument is that, where this situation occurs, the Rule of Law requires that the state intervene and regulate the practices with a credible scheme to prevent the exploitation.
This idea seems to make the Rule of Law something that can lead to active political action rather than just being a restraint on such action. We both work for the Bingham Centre for the Rule of Law, and we have been active in this policy space. Based on what you have said about this regulatory conception, do you believe that there is a feeling amongst policy-makers and politicians that Rule of Law academics and policy actors seek to use the limited government approach to frustrate government policies by insisting on restrictions? Do you believe that your regulatory conception could reconcile NGOs as partners in the achievement of policy goals rather than being simply opponents?
There was a time I think where the Rule of Law idea was used to try to limit government in unhelpful ways. That was the case especially in the late 1980s, under the governments of Prime Minister Margaret Thatcher in the UK and Ronald Reagan in the United States. Societies like the Federalist Society and the Mont Pelerin Society continue to use their version of the idea in this anti-regulatory way. However, in my experience discussing the idea and of reviewing legal responses to Covid-19 around the world, that libertarian conception is hard to find these days.
So, NGOs can be a bit more careful at throwing rhetoric of the large state around – as they did during the Covid-19 crisis – and start seeing that a proper concern for liberty suggests that at times we need a robust state to take private autonomy seriously by giving people rights and remedies against private exploitation and coercion.
It will be interesting to see whether this libertarian instrumentalization of the Rule of Law could arise again in Argentina with the new government of Javier Milei.
There is a lot on the so-called “Chicago boys” – public officials and economists trained in the University of Chicago – basically importing the ideas of neo-liberalism and these conceptions of the Rule of Law into South America.
This is something we will try to trace at RevDem. Last year Cass Sunstein also released a working paper simply entitled The Rule of Law. Do you think that there is a greater need for academic conceptualisation of the concept following its greater politicisation in the last years with these examples of real-world Rule of Law ‘backsliding’?
I actually think that the opposite tendency is probably afoot.
In other words, they will say it’s not the time to push the boundaries, it’s time to batten down the hatches and dig trenches. I recognize and respect that concern. I would only add that it should not stop theorists from advancing the idea, and that unregulated areas of human activity such as social media, AI, and worker protections are very much serious concerns for the Rule of Law and liberty at present and I think that our account of the Rule of Law should recognize that.
On that theme of protecting the currently agreed version of the Rule of Law I thought that we would conclude our conversation on a matter that is closer to home. The United Kingdom is currently embroiled in a Rule of Law debate over the Safety of Rwanda Bill. You have written for the UK Constitutional Law Association blog about how this may not only threaten the UK’s international commitments on refugee protection, but also the balance between the judiciary and Parliament. How do you foresee the situation evolving, and can agreement on the importance of the Rule of Law be restored in the UK in the future?
I think that the Government will want to pass the Bill at all costs and put the first flight in the air before the next election. I can’t quite judge how much the House of Lords will insist on very potent amendments, but I think there will be some. There are at least two kinds of amendments being floated at the moment. One set seeks to create a condition that needs to occur before the scheme comes into place. That condition is that the Rwandan government is complying with the arrangements foreseen in the UK Rwanda Treaty on processing asylum claims. That is a major risk for the government because it could kick the scheme into the long grass beyond the election and look like a major climb-down for the Prime Minister.
The other approach is to widen the circumstances under which, in the bill, an individual can challenge their removal to Rwanda under the scheme. The Bill presently tries to limit that in an extreme way, but uses vague language that many expect the courts to give a wide reading to in order to allow more exceptional circumstances claims to arise under the scheme. At the moment, it only allows people to challenge removal when they can show they would face a real risk based on personal individual circumstances when they stay in the country of Rwanda itself. It deals with in-country risk. They cannot argue that Rwanda is unsafe in general and neither can they argue that they will be removed to another country. There are amendments to permit challenges based on the threat of removal and to make the role of the courts less restrained in overseeing the scheme.
So, on the Rule of Law question for the courts, I think that we are heading for a very difficult position for them because plainly the obvious point of the Bill is to try to make it so that almost everybody is removed to Rwanda to have their asylum claim processed. But there will be provisions in the Bill that, although they were only initially intended to open a trickle of claims, they can be widened to allow more claims to come and judges will have to make sense of those provisions as amended. They will be put in a position of having to read the Bill in a way that they know government ministers did not want it to be read.
It will be very interesting to see whether the upcoming elections this year will show us how democracy can influence these Rule of Law developments as we have seen in Poland.
This abridged transcript has been prepared by Professor Jeff King.
In collaboration with Oliver Garner.
