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Nico Jacobellis (that's a pseudonym, in case you didn't know — so far as I know, the author has never operated a theater) has a post at First Movers titled " Why Legislatures May Fail to Provide for the Rule of Law: A Response to Tamanaha." That post was written partly in response to a blog post by Brian Tamanaha titled "Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)." Nico describes a way of viewing the development of the common law as a "spontaneous order," a "product of human action but not of human design." I haven't yet read the Hayek or Leoni works on which, according to Nico, that view is based. But I was initially taken aback by these statements in Nico's closing paragraph:
Courts can apply law made by the legislature just as they can apply law made as a spontaneous order, but when the law is changed by decree and not through a spontaneous diffuse process we are left with "law" that is not consistent with the Rule of Law. This is because the Rule of Law means law based on settled expectations, not law based on what a majority can shove through the legislature. In this way, Tamanaha's goal of tying modern liberalism (which, of course, requires legislative action) to the Rule of Law fails.
My initial reaction was that reducing the concept of "Rule of Law" to law based on settled expectations was too narrow a treatment of that concept. I still think that may be the case, but before getting to that point it seems worth asking what is meant by the phrase "rule of law."
Why fret over the concept of the "rule of law?" The proponents of concepts of the rule of law have used those concepts, among other purposes, as tests of the legitimacy or binding value of laws or legal systems, and it intertwines with notions and problems of bindingness that occupied the attention of theorists in the 20th Century (and still). So saying that some kind of law or legal process is inconsistent with the rule of law could be a harsh criticism of the kind of law or process in question.
The articulations of the concept of "rule of law" that I'm most familiar with are those reflected in this introductory post on the topic by Larry Solum, particularly that of John Rawls. Those sorts of understandings of the rule of law would appear to assign as much legal value to legislation as to law derived from custom, so long as the legislation is enacted and enforced in certain ways. Nico Jacobellis's description seems to rule that view out and to assert that legislation has, in some meaningful way, less value than law derived from custom and (accurately, one hopes) articulated by judges.
Brian Tamanaha, in his working paper "How an Instrumental View of Law Corrodes the Rule of Law" (SSRN), refers to Rawls's concept of the rule of law as a "formal" understanding of the concept "because it focuses only on the formal characteristics of law rather than on its content" (p. 23). Tamanaha reports that in the past, the view that the common law had more legal value, legitimacy or bindingness than statutes was a lot more common than it is today (pp. 9-12). Tamanaha's paper has a number of interesting things to say about changes in the notion of "rule of law" over time. I haven't finished reading his paper yet (let alone his book on the same topic), so I must defer for a while further discussion of what "rule of law" means to Tamanaha.
More to follow. But first, a question: Could we live in a complex and rapidly changing world while relying entirely on long-standing customs for our laws? As you might have guessed, my hunch is that the answer is "no," in which case, we must consider other criteria of legitimacy and bindingness, dispose of the notion that "the rule of law" encompasses or comprises part of those criteria, or reject entirely that there are such criteria.
I'm going to continue writing for a few moments on the idea from this post on outlines yesterday.
Prof. Lawley wrote about the objections to the idea that blogs are outlines, pointing out that people can use many forms of writing in their blogs, and that outlining as a writing procedure does not lend itself well to many of the forms that they might choose. "Outliners impose a specific structure on writing. They produce clear boundaries between sections, and between what's 'in' the writing and what's 'out.' . . . But I wouldn't use an outline for a poem. Or for an e-mail message to a friend. I don't use one for my blogging."
Doc Searls wrote the other day that "[b]logs are outlines, and blogging is a form of outlining."
My question is, are blogs any different from so many other forms of writing in this respect? At least in the non-fiction world, content organization is a hallmark of good, clear writing. Fiction writing forms may have different rules, but I'd guess they also depend on some kind of organization. The practice of organizing ideas into writing can itself contribute to analytical thinking. Some of my best thinking has been done while my fingers have been working a keyboard -- usually while drafting revisions, since the first paragraphs on the page are almost always crap.
Prof. Lawley's son Alex (6) asked her, "Mom, why does everything have to have an outline?" While we can't really tell if he was talking about the kinds of things that people in the weblog world are talking about, Alex's and Doc's remarks do make me wonder. Perhaps everything does have an outline, if outlining is just one of the ways that we engage in abstract thinking about the world we're in. We make the outlines, and we revise them as we learn and experience more.
Yes, this is a rather Deweyan or Kuhnian notion, but that won't come as a surprise to those who know me.
I found myself in an instant-messaging conversation about Plato's The Republic the other night. On the other end were a senior, a junior, and at least one freshman from my alma mater, who were inquiring about the Republic because it has long been part of the college's Freshman Studies program. The topics of pedagogical agony for the night were the metaphors for knowledge and thinking, the "divided line" and the famous allegory of the Cave. (Stephanus pages 509d-521b).
I always enjoy talking about this work with people who haven't encountered Plato or the Republic before, especially this particular segment of the book, because it offers an opportunity to introduce and question themes that repeat themselves in Western philosophy and that also turn up in Eastern philosophy. Just those eighteen or so pages of the text raise the question of what one considers to be "knowledge" and the extent to which people can possess it. That's only the fundamental question of epistemology. Plato's discussion of knowledge can be used to illustrate a kind of correspondence theory of truth and to discuss what that might entail as opposed to other theories. Even if going that far sets some students' heads spinning, it's still fun to play with those ideas to the extent that people are ready.
Well, at least I think so.
"Ernie the Attorney" posted this quote and asked for comments. Here are my rough attempts at comments.
The quoted sentences are the work of Grant Gilmore, though I can't tell you where he said it, and I have to confess it took a bit of research on my part to track down who wrote it. From what I can tell, Prof. Gilmore was perhaps best known for his work on the Uniform Commercial Code. (A permutation of the syllables of his name yields the name "Gil Grantmore," a nom de plume for usually lighthearted writing by a small cadre of legal academics among whom I count a few friends.) Since I don't have access to more of the source material, I'm going to work on Gilmore's quote as Ernest quoted it, without any additional context.
I don't think that Gilmore's comments are very helpful from a jurisprudential standpoint. Perhaps his statments serve as a lament that people are not very adept at coordinating their social interactions without socially enforceable (and enforced) rules. Perhaps it's a complaint that there are lots of people who are (a) nasty, (b) stupid, and/or (c) careless, and that having these people in society means we need lots of laws. Perhaps it also laments that laws have collateral social costs. I'm not sure that it does much more, though, and I think it is so simplistic as to be misleading.
I find it hard to pigeonhole myself, but I guess one might say that I am generally a philosophical pragmatist; I believe that the good of any jurisprudential analysis lies in its ability coherently to explain what this "law" thing is that we work and live with and to advise us how we might best think about it, live with it, and work with it. I tend toward positivist modes of analysis, but I am not so naive as to think that the realists and crits don't have some good points to make. I think that any explanation of law must be rooted in carefully contemplated observations about the realities of human experience.
Gilmore appears to be saying at least two things at once. Part of the quote has to do with the values of a society being reflected in its laws. "The values of a reasonably just society will reflect themsleves in a reasonably just law. . . . The values of an unjust society will reflect themselves in an unjust law." These statements go to the quality of a society's laws, and are unremarkable. I'll just say that these statements are probably more likely to be true if a society is democratically organized than if it is not. They also fail to account for the rules that themselves establish law and organization. (Consider in this regard H.L.A. Hart, The Concept of Law.)
Gilmore also says, "The better the society, the less law there will be. . . . The worse the society, the more law there will be." These statements directly relate the quantity of law that a society has to the good nature of the society. This is a much more complex question.
Has the good society no use for governance? True, much law exists to counteract things that we affirmatively believe to be evil. If those evils could be removed by the inculcation of social values, or at least by social pressure based on those values rather than on the threat of punishment, then we would have no need for those laws. (One could still make a positivist argument that in that scenario, a different kind of rule of law has been imposed.)
However, even in that scenario we would still have a need for social coordination. One good example of this is the very sort of commercial law in which Gilmore himself specialized. Would we have no use for the UCC in a better society? Yes, a lot of what's in the UCC is there to deal with cheats and scoundrels; but a lot of it also serves to provide formal legal tools for people to transfer property and responsbility and to allocate risk of loss.
In imagining a hypothetical "good" (or at least "better") society, we can imagine away some of the evils; but we cannot imagine away mistakes and accidents. We cannot imagine that all costs are internalized. To hypothesize away all social costs and all risks perhaps does imagine away all need for law. However, that is not an imagined "good" human society, for it has been deprived of all of its humanity.
Gilmore's statements lose sight of the fact that a large amount of law exists to deal with social and technological complexity. I can only imagine that his vision of a good society would be a much simpler one than the one we live in. Or are we to imagine away all economic externalities, all transaction costs, and all failures of judgment? To what end?
Gilmore's comments are tinged with normative content in addition to [attempts at] descriptive content. Without context, I can't read more into the last sentence by Gilmore that Ernest quoted. Perhaps Gilmore is telling us that acts of governing and of enforcing laws themselves impose social costs and are often destructive. Laws restrict freedom of human action. Having to know all the complex laws that apply to a given situation is hard for a lawyer and even harder for the layperson -- at best this results in people anxious about whether they will overstep the bounds of law. A judicial system is expensive to run. "Correctional" systems spew social costs, not least upon their inhabitants. I can't tell if this is what Gilmore means.
If only I had the time, I'd love to take this further and to try to use Gilmore's statements as stepping-stones to describe the sorts of conceptual tools that I think are more useful in jurisprudential thought. For now, though, I have to stop, and I can only say I do not think that the quoted statements by Gilmore are especially helpful contributions to jurisprudence. They don't pay any attention to the wide variety of kinds of rules that we have, nor do they distinguish among the reasons that we have those kinds of rules.
In our world, people misjudge, people make erroneous assumptions, people have widely varying aptitudes, people hurt themselves, and people hurt each other -- intentionally, negligently, and accidentally. All transactions and activities have costs. Often, some of those costs get imposed on people other than the ones directly participating. We can try to imagine societies where this might not be so, but we wouldn't be imagining societies of people, and we wouldn't be making any progress towards addressing the problems that people face.
