Governing Law and Law-Making
Likewise, “government under law” differs from “government by laws”.
The Russian pravovoe gosudarstvo is often translated as “government under law” but is usually interpreted to mean, essentially, “government by laws” — which, of course, is a great improvement over a system in which officials act without reference to laws.
Although an improvement, however, “government by laws” is not sufficient for a constitutional democracy — because it still begs the central question: What binds, or ought to govern, those laws? Who shall watch the watchman? This is the most fundamental question undergirding Rule of Law and Due Process of Law.
Is “law” anything the sovereign says it is? Is the “law-maker” merely whoever has a monopoly of coercive power? Is law (as Mao said) whatever comes out of the barrel of a gun? Does the U.S. Constitution ordain that the Vice President shall preside over his own impeachment trial in the Senate? Or is law, properly understood, itself governed by basic norms of law-making?
And, if so, what are those norms? Do they include such “unenumerated” rights, privileges, immunities, and entitlements, etc., as the presumption of innocence? May judges sit in judgment of themselves? What “core values” undergird enumerated and unenumerated rights, etc?
Can a parliament’s legislation be unlawful? Can a constitutional provision be “unconstitutional” in the sense that it violates fundamental global norms of constitution-making which are themselves premised on that “presumption of Ordered Liberty” to which the Rule of Law is itself subordinate? The answer, since the Nuremberg trials following World War II, is — or ought to be — very clear. Yes. Some “laws” are lawless, and to obey them is a crime.
Under Hitler, the German Rechtsstaat was (at its very best) merely a Gesetzesstaat — a state that rules by laws — and that turned out to be very bad indeed. Since the Nazi era, German jurisprudence has rightly sought to define the Rechtsstaat as a “law-based state” in which “law” is itself “based” on principles that cannot be defied by anyone or anything, including the parliament and (perhaps) the German constitution or (as it is called) Basic Law.
The theory that law is whatever the ruler says it is was very popular, worldwide, prior to the rise of Stalin and Hitler. That theory is called legal positivism. Following World War II, the world increasingly abandoned legal positivism, but it remained central to Soviet law and remains imbedded in post-Soviet law. See Theory of State and Law. See also Lustration in Transitional-Justice Context.
A pre-war critic of legal positivism, and one of the leading philosophers of law during the past century, was the late Lon L. Fuller, a professor at Harvard Law School. His book, The Morality of Law (1964, rev. ed. 1969), sought to articulate the “unarticulated major premises” underlying the Rule of Law. The “unarticulated and even unarticulable major premises” he sometimes added, as I recall.
The following discussion is based largely on Fuller’s work. A further discussion of Fuller’s work and these “Ten Principles” appears in The Enterprise of Integrative Jurisprudence.
The Ten Principles
First Principle: The Hierarchy of Sources of Law
Law, properly understood, consists of more than the written texts of “positive” — that is, enacted — treaties, constitutions, statutes, decrees, and administrative rules and regulations. Although these, as well as judicial decisions, etc., point to the Rule of Law, it transcends them.
The Rule of Law is like a map or blueprint: it is about something else — the territory, the evolving global house. And its most fundamental rules govern how this blueprint should be constructed, organized, interpreted, construed. The fact that the sources of law must be hierarchicalized, and the methods by which all law should be interpreted and implemented, are vital to the Rule of Law and, hence, to constitutional democracy. Indeed, this hierarchy grows naturally from the Rule of Reason that animates the Rule of Law.
A special kind of reasoning … as explored elsewhere in these Jurlandia writings.
A good constitutional horse should be harnessed in front of the legislative cart prior to loading decrees, edicts, regulations, and the machinery of administration. But the “genetic code” by which good horses are made deserves paramount consideration: How constitutional law is made governs the viability and legitimacy of the resulting product; process and product are inextricably tied; how you get there will determine where you will arrive.
As any good biologist knows, genetic codes are less “things” than evolving activities, less nouns than verbs. So are constitutions.
The activity of thinking about, debating, and adopting a constitution is, arguably, as important as the resulting document. Highest in the hierarchy of law are those standards by which the adequacy of a constitution — and the methods by which it was adopted — must be judged. These standards focus on the basic question: What is a constitution?
What is a good constitution, a competent constitution? It depends partly on the viability of the Conversation of Democracy on which constitutional democracy feeds daily.
Here is a thought experiment. We have constructed a box, with an opening to let in pigeons. Outside this opening is a black button, and inside are several different-colored buttons. We have designed this experiment as follows: If a pigeon enters the box and pecks the green button, a two-day supply of food pellets will enter the food trough, but thereafter that pigeon will get no food for one week; if a pigeon pecks any other button inside the box, little or no food will reward it. However, if a pigeon, before entering the box, pecks the black button outside, then pecking any color inside will reward it with a nice little meal — unless it is in the seven-day punishment period for having pecked the green button without first pecking the black button. Question: Will pigeons learn the value of pecking the black button before entering? Will they thus “limit” themselves by a hierarchy of rules — thereby improving their lives?
This thought experiment was suggested by Prof. Lawrence H. Tribe. It helps to focus our attention on a key aspect of constitutional law — self-limits.
As a constitution limits (or should limit) all legislation, etc., so too a constitution must itself be limited, governed.
Everybody agrees that the rules by which documents like constitutions should be interpreted are, in a sense, “higher” than constitutions. Put differently, some of the components of a good constitution can never be contained within the document itself. 
Understanding self-limits and self-governance requires understanding how “governance” and “cybernetics” are related, both linguistically and in practice. I address this question in these Jurlandia writings.
Humans are not pigeons, of course. But the question remains: Will humans learn to “limit” themselves by a hierarchy of rules — thereby improving not only their lives but also the chances for worthwhile evolution of rational, experience-based civilization?
Our highest value, Freedom of Inquiry, allows and perhaps inclines us to discover that some rights, etc., come as a “package” in the sense that all seem equally necessary for Ordered Liberty.
Rights relating to freedom of belief, conscience, expression, and association (and all that these imply, including “correctives” — such as libel laws — to curb abuses) are, arguably, neither higher nor lower than is Freedom of Inquiry or the transcendent values of Due Process of Law: that no person shall be deprived of life, liberty, property, or other fundamental rights, privileges, immunities, of entitlements (including the “package” listed above) except by rational, proportional, generally-applicable laws that are enforced equally and fairly. Clearly, these highest values compose a “much of a muchness” whose parts are interdependent, interpenetrative.
On balance, however, I conclude not only that there is (or ought to be) a hierarchy of such highest values, but also that there is (or ought to be) accompanying “highest value” (a) in seeking to explore and articulate what those values are and mean, and (b) in recognizing similar “highest value” in our inevitable failure — despite our best efforts — to identify most of these values with anything approaching linguistic or jurisprudential exactitude.
Second Principle: Rationality
Rationality, properly conceived, must suffuse all law and law-making. The scope of this principle is vast. Without rationality, so-called “law” is mere sound and fury, signifying nothing worthy of human evolution. The reason of the law is the life of the law.
Lawyers, who compose one of the three coordinate branches of government in the United States and (arguably) elsewhere, have a special fiduciary obligation towards upholding the rationality of law.
Rational law seeks to translate present wisdom, based on past experience, into future action. Such wisdom should be disciplined by “logic” (rules of clear thought and expression), nurtured by “science” (the evolving sum and substance of all hypotheses embracing all credible experience, observation, and experiment), and inspired by the discovery that to be human means to exercise free will, to aspire to make meaningful and good choices — rational, balanced, and “impeccable” selections among various options … leading to good actions, value-rich conduct, that mosaic of qualities which the ancient Greeks called areté.
See Rule of Reason.
This second principle reinforces the ninth and tenth, and is also central to the Natural Law prohibition against absurd laws or unreasonable “under-color-of-law” conduct. For example, it “goes without saying” in U.S. constitutional law that one may not be a judge in ones own quarrel with another. Indeed, according to Natural Law fundamentals, “God can do anything except work an absurdity”; if true for Divinity, this must be (even more?) true for Humanity.
Third Principle: Generality
Law — and all rational governance — should apply equally to all similarly-situated persons and institutions.
This principle embraces the constitutional requirement of equal protection of the law, perhaps the most “general” element of Due Process of Law.
The many books and articles on due process and equal protection attest to the vital importance of the jurisprudence on these intertwined concepts. On reflection, we see that equal access to the blessings of liberty implies equal burdens. Blessings and burdens are reciprocal, interpenetrative, whether conceptually or “on the ground” where ideas must translate into choices and actions.
The ancient Athenian law-giver Solon first deduced that equality of liberty implies equality of limitations on liberty, and hence equality under the law. Arguably, all the rest is a footnote.
Fourth Principle: Congruence
Law must govern official action no less than personal or business relationships.
The requirement that official conduct be congruent with declared rules of law is especially important; law is not merely what is “given by the governor” to govern subjects; in a constitutional democracy, specifically, the “law-giver” is the people, instructed by history — and their law is directed as much at the government as at themselves.
This is crucial: Constitutional law focuses most penetratingly on governing “the government” — “the powers that be”; a fully integrated jurisprudence must come to terms with the issue of power, and hence the issue of wealth and its distribution within a free and responsible polity. But our power-analysis should carry us way beyond Marx’s mutterings, etc.
On balance, we might see that it is irrational to have constitutional law “given by the government”; such so-called “constitutionalism” cannot supply an adequate foundation for government under law. Likewise, it is irrational to allow the making and implementation of law to be manipulated by the highest bidder(s).
The scandal is less about people breaking the law (although too many do) than it is about people and corporations abiding within “the letter of the law” which they themselves helped to design, loopholes and all! The Rule of Law cannot tolerate such self-dealing.
Fifth Principle: Promulgation
Law must communicate; it should be published and knowable; rules and standards of conduct that are not communicated, that are not knowable, should have no force or effect. “Law” that is unknowable is absurd and hence lawless. See Why Publish Judicial Decisions?
An aspect of promulgation that is crucial, yet often ignored, requires judges to set forth the true reasons for their decisions. These reasons should not be formulaic syllogisms, but instead should reflect the actual mental processes that led to the judge’s choice of relevant facts and legal principles. Law students, lawyers, judges, the general public, need to be able to review all past judicial decisions, and need to be able to dissect them and critique the process of reasoning — of gathering and sorting and marshaling facts, and of applying to them the proper principles of the law — which led to the judge’s decision.
Sixth Principle: Clarity
Closely related to the principle of promulgation, law must communicate clearly; rules and standards of conduct must be ascertainable and comprehensible.
This test, of course, is context-specific; for example, the constitutional requirement of equal protection of the law should not fail this test merely because centuries of jurisprudence “define” that concept in all its nuance.
Likewise, the “Due Process of Law” — fundamental rationality and fairness — necessary for constitutionally depriving a person of a driver’s license, requires different official circumscriptions than does the “Due Process of Law” necessary for depriving a person of liberty or life. Yet, as any student of “Due Process of Law” jurisprudence knows, this phrase ordains ascertainable standards of conduct in each instance.
Those who have eschewed the value of history to the development of law will never be able to “define” what “Due Process of Law” requires in each instance, unless — unashamedly, indeed gratefully — they begin their own jurisprudence on this subject by borrowing from legal systems that have struggled with defining fundamental fairness for many centuries.
The history that defines the quest for fundamental fairness belongs to the whole world as much as do the ideas of Socrates, Plato, and Aristotle. First appearing in the ancient Statute of 28 Edward III, the phrase “Due Process of Law” specifically alluded to and explicitly restated Magna Carta — arguably the first “law” by which a people governed their government. Magna Carta, imposed upon the King of England in 1215, reflected evolving principles of law originating in Greek, Roman, Judaic, Christian, and Islamic jurisprudence. England borrowed unashamedly!
This ancient “Due Process of Law” jurisprudence can be traced, and all subsequent jurisprudence consulted, in order to discern the requirements of “Due Process of Law” in every particular case. This would not be possible, of course, without a record of the history — including, in this instance, many thousands of case histories — giving that concept meaning, clarity, and hence life.
No concept that has a history can be defined without reference to that history. The twinned concepts of fundamental fairness and proportional rationality — Due Process of Law — are defined in thousands of specific cases decided over hundreds of years. This wisdom belongs to everybody.
Seventh Principle: Dynamic Constancy
Law grows, its language evolves, and a legal system worthy of this name must be embraced within that evolutionary process; thus, law must be dynamic yet constant — changing, but only according to essentially changeless principles of legal evolution, including (as noted above) the principle that judges should give the true reasons for their decisions.
So-called “law” that blows hot and cold, fluctuating wildly, provides no predictable or rational bases for human foresight and action; it is absurd; it is not law.
Eighth Principle: Non-Retroactivity
The law should not hold a person accountable today for “illegal” conduct (as today defined) that was not illegal yesterday, when engaged in; that is the standard for criminal law; this principle is more complicated in other areas of the law.
The concept of “accountability” is central to any rational system of law; retroactive laws (with important exceptions) do irreparable harm to the integrity of that central concept. Again, these principles are not absolutes; they are not written in stone; they point towards values that themselves point beyond easy (or any) articulation.
As noted, during the end of his teaching career Professor Lon Fuller sometimes used the phrase “unarticulated and even unarticulable major premises” undergirding the Rule of Law. I recall an after-class discussion in which he elaborated on his use of this phrase. That discussion referenced Korzybski’s discussion of “maps” and “territories” … and it was clear to me that Fuller used the term “unarticulable” advisedly. He was, after all, among the greatest teachers of contracts law during 1938-72; unarticulable “mutual undertakings” such as “good faith” compose a significant portion of contract law; and contract law has been a major metaphier for constitutional law. Fuller was interested in the subject of “good faith” in law generally. And that “faith” was based on humankind’s demonstrated capacity to learn and reason our way towards a fairer, more considerate future.
Of all these Ten Principles, that of non-retroactivity is the most intellectually complex; volumes have been written on exceptions, modifications, etc. As noted, in the criminal-law area this principle is fairly inflexible; in other areas of law, however, exceptions often seem to swallow the rule. Suffice it to say that any country seeking to implement this principle should avail itself of the jurisprudence already existing on this subject. A country that has been cut off from the nutrient-rich tides of global jurisprudence would be foolish to try to reinvent this multifoliate body of wisdom — as foolish as it would be to try to reinvent evolving science, technology, commerce, banking, security interests, letters of credit, and … the whole body of emergent global common-law.
Again, law — even more than science — is “borrowed” (use any word here you want, but do not reject the territory of global jurisprudence!); those who see farthest stand, unashamed, upon the shoulders of giants — generations of giants. The term “borrowed” might here remind us of the “good faith” undergirding all worthy civilizations, as well as of the “debts” those borrowings give rise to.
Ninth Principle: Non-Impossibility
The law should not require the impossible. As noted, Due Process of Law requirements are based on centuries of philosophy and jurisprudence regarding the meaning and value of “reason” in human affairs; unreasonable law is highly suspect and usually fatally flawed on that ground alone; laws that command the impossible are not only unreasonable, they are absurd — and hence lawless.
The world has proclaimed, however, that it does not consider as “impossible” its command that a person refuse to carry out various unlawful laws; for example, a superior’s order to commit genocide must be disobeyed. Yet, as a matter of practicality and fundamental fairness, the world should focus on prosecuting superiors, not inferiors; high officials who ordain tyranny are the worst of criminals.
Students of this Ninth Principle have noted that some technical achievements are ordained for future realization. The Environmental Protection Agency might require future fuel efficiencies that are not currently attainable but will be attained (if at all) due to an economic infrastructure that is built around achieving this EPA goal.
Tenth Principle: Non-Contradiction
Law should compose a coherent “body” of law; the right side of the “mouth” should not forbid what the left side requires, although — as noted — good judgment does require weighing contrasting values.
In an imperfect world, various sources of law do in fact ordain conflicting standards of conduct, etc.; that is why we must attend to the “hierarchy of sources” of law — from global-constitutional to domestic-constitutional, and, within each so-called sovereignty, from constitutional to legislative to administrative, etc. Together, those sources should form a coherent body of law.
We therefore return, full cycle, to the necessity for hierarchicalized law whose principal component is rationality — balanced wisdom, circumspect will.
 I offer links to “authorities” with the understanding that, whether Aristotle or Bacon or Einstein or the Supreme Court said something is not the end of the discussion about whether it is true or relevant to a specific inquiry. (Go back)
 I follow Friedrich A. Hayek and others in using initial capital letters for “Rule of Law” and similar fundamental concepts in order to denote that they are “elevated” terms of art. Not every “rule of law” reflects the Rule of Law. That is the key point of this essay. My initial-cap usage throughout the Jurlandia website reflects the crucial distinction between so-called “laws” and that fundamental “Rule of Law” by which the adequacy (rationality, fairness, etc.) of any law or governmental action must be judged. In this regard, I quote an early work by Hayek, The Road to Serfdom (1944, 50th anniv. ed., Chicago, 1994):
Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this 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. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts. [Hayek, Chapter 6, p. 80.]
The above includes the following footnote:
According to the classical exposition by A.V. Dicey in The Law of the Constitution (8th ed.), p. 198, the Rule of Law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.”
I should note that, for Dicey, “regular law” is also a term of art. His “law of the constitution” is about a specific model, that of England, in which “the constitution” and “the rule of law” are essentially identical. These elevated Ideas (which I denote by using initial caps) originated even before the 1215 Magna Carta, that “Law of the Land” by which “Due Process of Law” is secured. In addition to the “absolute supremacy” of regular law, Dicey notes that there must be “equality before the law” and a recognition that “the law of the constitution … [is] not the source but the consequence of the rights of individuals.” (p. 199)
In point of fact, I think Liberty and Law and Justice and Due Process and Equal Protection, etc., compose Idea-sets “in perichoresis” — that is, in philosophical and existential interdependence. Each participates in defining all others.
Interestingly, while Dicey’s text does not use initial-caps, his “side notes” accompanying the text do. His side note to page 198 is “Summary of meanings of Rule of Law” and his side note to page 199 is “Influence of ‘Rule of Law’ on leading provisions of the constitution.” The first edition of Dicey’s classic was published in 1885. The eighth and final edition was published in 1915.
Finally, I note that some on the U.S. Supreme Court uses initial-caps for “Rule of Law”; thus, in Hamdan v. Rumsfeld (2006), Justice Stevens, writing for the majority, asserts that fundamental principles of “the law of war” (such as Common Article 3 of the Third Geneva Convention) are part of the law of the United States. He concludes his Opinion: “[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.” (Go back)
 Dicey (see Footnote 2) is focused on a unique situation, England before its membership in the European Union. Arguably, since joining the E.U. England has come closer to the model of a country with a “written constitution” — that is, a country with a single writing (as distinct from numerous writings, starting with Magna Carta) that sets forth its constitutional foundations. Even so, there is a deeper issue here: Dicey’s assertion that constitutional law is part of “regular law” seems to suggest that, to him, there is no hierarchy of sources of law. If so, I disagree with him. If, as quoted above, “the law of the constitution … [is] not the source but the consequence of the rights of individuals” (as I think is profoundly true), then “regular law” must likewise serve those rights, and no right seems more fundamental than the right to “regular law” that conforms to the Ten Principles here illuminated. A constitutional democracy must “regularize” — and necessarily balance — limited and accountable governance, individual rights and corollary responsibilities, and those “democratic processes” undergirding the Conversation of Democracy which, together, constitute Ordered Liberty. This requires “regulation” subordinated to legislation subordinated to constitutional law subordinated to the Rule of Law … including these Ten Principles. (Go back)
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