'The Rule of Lore in the Rule of Law: Putting the Problem of the Rule of Law in Context' by Paul Burgess in (2020) 12
Hague Journal of the Rule of Law 333 comments
In this article, I identify a number of commonly accepted assumptions from the literature associated with the Rule of Law and suggest that—whilst the assumptions are accepted as part of the conceptual narrative of the concept—the cogency of the assumptions falters when they are considered collectively. This article represents, in many respects, both a critique of current practices and a rallying cry in relation to future practices. Through illustrating that the form of conceptual change across canonical conceptions of the Rule of Law can impact the relative level of consistency in the assumptions that are used and relied on in the opening of so many Rule-of-Law-focused works, I demonstrate that there must—if we are to provide the strongest possible arguments relating to the contemporary idea of the Rule of Law—be consideration of the actual way in which change has occurred across conceptions. I argue that consideration of collective cogency is necessary for conceptual clarity and illustrate the essentiality of doing so by considering the assumptions in relation to two hypothetical mechanisms of change. This approach illustrates not only the general inconsistency, but also that inconsistency varies between the mechanisms. This variance leads to a fundamental problem: without the identification of the change mechanism that has operated across Rule of Law related ideas, there is no way to assess whether the Rule of Law’s common assumptions are, or can be considered to be, consistent with one another. I also suggest one way to solve this problem.
Burgess argues
In this article, I identify, and question the collective cogency of, a number of familiar and commonly accepted assumptions that form a recurring contemporary narrative in the Rule of Law literature: the Rule of Law is over 2000 years old; there have been a number of canonical Rule of Law ideas; contemporary ideas of the Rule of Law differ to earlier Rule of Law ideas; and, the Rule of Law is a highly, or essentially, contested concept. By illustrating that these assumptions could be seen as inconsistent if change across conceptions of the Rule of Law has occurred in particular way, and as there is little research into the exact nature of change across conceptions, I identify an important problem in the Rule of Law literature: without the clear identification of the actual change mechanism that has operated across Rule of Law related ideas—something that we do not yet have—there is no way to assess whether various common assumptions in the Rule of Law literature are, or can be, consistent with one another. In this respect, my argument sounds both a cautionary tale of using assumptions that may be inconsistent and acts as a call to investigate the nature of change across conceptions in order that the assumptions can, more clearly and accurately, achieve the aims for which they are commonly deployed.
I describe the assumptions as assumptions because they are generally cited as forming part of the conceptual backstory of the Rule of Law; they represent foundational, generally unexamined, beliefs about the Rule of Law on which more substantive arguments are based. The assumptions derive from both primary works that could be seen to form a canon of work associated with the concept—for example, accounts by Aristotle, Hobbes, Locke, Dicey, Hayek, and Fuller—and secondary literature that analyses that canon. Within this body of work the assumptions’ collective cogency has not previously been considered. As further ideas are based on the assumptions—and where the assumptions are often provided with a view to establishing a shared understanding about the concept—I argue that consideration of this collective cogency is necessary for conceptual clarity. I expose the potential for inconsistency when the assumptions are considered together by considering their cogency in terms of two hypothetical (and extreme) mechanisms of change. The result is not only the identification of inconsistency generally, but also the finding that the inconsistency varies between the mechanisms. It is this variance that leads to the problem identified in this article’s first paragraph. I suggest a contextual assessment of Rule of Law accounts as being one way that the problem can be solved. In circumstances where the concept is so often cited, referred to, and deployed in academic argument, yet where potentially inconsistent assumptions play a foundational role, enhanced clarity is undoubtedly both necessary and long overdue.
This paper is couched and expressed in necessarily abstract terms. My argument relates to the concept of the Rule of Law. Whilst this concept undoubtedly has practical applications and an operational function, my discussion does not directly relate to these aspects (although, as noted later in the paper, there may be some indirect effects). Not only do I consider only the abstract aspect of the concept, but I also primarily explore the academic debates and discussions that relate to the meaning and nature of the abstract aspect of the concept as well as its relative change over time. It is because I am exploring the way in which the concept is discussed and the way in which is it viewed that my argument in this paper is necessarily abstract. In this respect, the paper only occasionally includes practical examples; however, even these frequently point to specific conceptions of the Rule of Law and not to its practical application in the world.
I cite a number of sources that identify, and rely on, various common assumptions in relation to the analysis of the Rule of Law. These citations are generally found in the opening paragraphs (or opening sentences) of the works cited. This is, as will become apparent, a clear and recurrent theme. The authors offer their statements to describe what the Rule of Law is and, relatedly, as an account of where the concept’s origins lie. The foundational importance of this analytic approach is apparent from Martin Krygier’s observation: ‘It is common to start discussions of the rule of law by saying what it is before going on to ask what, if anything, it might be good for and worth…’ (Krygier 2011, p. 65). In establishing an agreed, and agreeable, foundation for what the Rule of Law is, the assumptions—whilst relating to different characterisations of the concept—provide a shared understanding about the concept on which further arguments about its meaning or operation can be based. In this respect, the assumptions do a lot of—largely hidden—work. The assumptions each offer a relatively weak notion of what the Rule of Law is but, through their collective cogency, they purport to provide a strong base on which to structure a Rule of Law argument. The way in which these ideas come—or are brought—together reflects a consilience of inductions: where ‘an Induction, obtained from one class of facts, coincides with an Induction, obtained from another different class. This consilience is a test of the truth of the Theory in which it occurs.’
In other words, if two (or more) independent notions lead to the same conclusion, this provides support for the wider theory; ideas, by their consilience, reinforce one another. The assumptions I identify reflect different—historical, analytical, or ontological—characteristics of the concept. To provide consistent support for the wider theory of the Rule of Law, the assumptions—when viewed as independent notions—would be expected to support the same conclusion. However, as I will illustrate, the assumptions do not and cannot come together as various inconsistencies result in their—ultimate—failure to provide a base on which to structure more substantive ideas.
Notwithstanding their foundational importance, the assumptions do not, in this respect, represent positions of considered argument. The statements reflect the most commonly endorsed positions relating to the concept of the Rule of Law in the Rule of Law literature; their existence or correctness is simply assumed. The common assumptions are assumptions not only because they play a crucial foundational role on which further arguments are constructed, but also because they are treated in those arguments as—often—unspoken aspects of the argument; there is frequently no argument—other than mere citation of canonical works—offered in support of the various statements. Of course, we must, to some degree, rely on works that have come before us; it would be impractical to suggest—and I do not intend to do so—that in every mention of, for example, Aristotle, a complete exegesis of his works should be undertaken. I highlight this issue only to illustrate that the common assumptions are used as background information and as a way of setting the scene for the discussion to come. By highlighting the assumptions’ incompatibility—where our reliance on robust and consistent assumptions is advantageous—I expose the nature and scope of a problem inherent in the literature: that without identifying the way in which Rule of Law ideas have changed, there is no way to assess whether the common assumptions in the Rule of Law literature are, or can be, consistent with one another.
By stipulating two crude ways of conceiving a macro-process of change, I expose the potential for substantial inconsistencies across the assumptions and suggest that, if clarity is important, it is, therefore, necessary to identify the change mechanism that has operated. The problem arises when the assumptions are considered in terms of potential mechanisms of change. If it is accepted that there has been some form of change in relation to the idea of the Rule of Law—a position that must be accepted if the various works that form the Rule of Law literature relate to the same overarching family of ideas—the operative mechanism of change can impact the extent of any inconsistency across the common assumptions. To demonstrate this, I stipulate two hypothetical and extreme forms of conceptual change: evolutionary and, revolutionary. When the assumptions are considered in terms of these forms of change, the nature of inconsistency varies considerably. In short, I demonstrate that the operation of either of the change mechanisms impacts the nature, extent, and frequency of the inconsistencies across the assumptions: if revolutionary change has occurred, the assumptions that form the foundation for a number of Rule of Law papers are largely inconsistent with one another. To facilitate the avoidance of the use of inconsistent assumptions in the future, the nature of change across conceptions must be identified.
It is useful to explain exactly what I mean by a ‘mechanism of change’. In using this term, I mean the process by which change occurs or is brought about. In considering the way that I explore this idea in this paper, the mechanism in its simplest sense relates to the nature of the conceptual change that occurs between two (or more) conceptions of the Rule of Law. The operation of the mechanism is intended to reflect a number of questions regarding the change. These include: when two Rule of Law conceptions are different, in what way, if at all, do they relate to one another? Does one conception rely on another to take effect/operate? I intentionally do not specify whether the mechanism relates to human action or not. This is because—at some level—change in conceptions of the Rule of Law necessarily involves human agency as humans must posit a conception; however, it is not necessarily the case that a change in the way the Rule of Law is viewed is necessarily intended. If one author had no knowledge of a previous idea of the Rule of Law, this does not proscribe a contribution to the debate around the concept that forms the contemporary discussion of the Rule of Law. As will be touched upon below, many of the authors that are frequently relied upon in discussions about the concept of the Rule of Law do not appear to be responding to other earlier authors in that debate. Yet, the conceptions that are put forward may still cause the idea of the Rule of Law to change in either an evolutionary or a revolutionary fashion.
Identification of the nature of the change will, then, provide a solution to the problem. A question remains, however, on how this should be achieved. By suggesting one possible solution I seek to avoid merely identifying the problem without even hinting at a solution. Whilst I explore this, albeit briefly, toward the end of my argument, it is relevant to note here that one way to achieve this is to identify precisely what (a particular conception of) the Rule of Law is (or, more properly, was) at the point at which the idea was stated. A closer examination of canonical Rule of Law ideas, in the context of their creation, will more clearly illustrate exactly what the Rule of Law was (for each canonical author) at that time and, thus, when compared to any subsequent canonical conception, the mechanism of change can be identified. Change can only be considered—and, hence, the problem identified in this article be answered—once this has happened. Before we can begin to explore the problem, however, some conceptual ground-clearing is required.
The Rule of Law spans a number of disciplines and is viewed in a discreet conceptual form within each. Further, it seems likely each individual in Rule of Law relevant fields may have his or her particular idea of what the Rule of Law is. So, to narrow the scope of this article, I only explore the body of work that looks to identify—or at least comment on—the precise nature of what the Rule of Law is . I do not explore the wide body of—practically or empirically focussed—work that seeks to identify or test the extent to which the Rule of Law can be measured in legal or political systems of the world. In this sense, defining the scope of this article is relatively straightforward. What is more complicated is the provision of a working definition or attachment of a meaning to the term the Rule of Law. As I criticise the wide body of literature that itself has seen much ink spilt in trying to define the Rule of Law, any superficial attempt to provide a specific definition seems to be both imprudent and arrogant. Focussing the conceptual scope is, however, necessary to provide some clarity. I do not offer a definition. Instead, I simply identify one feature that the Rule of Law necessarily possesses: whatever else the Rule of Law may be, I take it to be an idea that relates to the normative constraint of the exercise of power. This broadly stated feature encompasses commonly stated Rule of Law-ideas whilst further narrowing the relative conceptual scope of the discussion and provides clarity for my argument. To narrow the scope further, I consider the Rule of Law only in terms of its Anglo-American conception. My reasons for doing so are three-fold: first, I do not consider the Rule of Law and the often associated continental ideas of, for example, the >Rechtsstaat or theEtat de droit, as being directly comparable; second, sufficient space is not available for me to consider all of the various Rule of Law-relevant concepts here; and, third, the literature I critique is largely focussed on this same form.
Why, and for whom, is the problem I raise a problem? Why, and to whom, does my challenge matter? And, how is this paper likely—or intended—to change future work? These are valid and sensible questions to ask.
As my answers to the first and second questions overlap, I can deal with them together. The problem I raise is a problem for different people at various levels. As noted above, the problem means that there is no way to assess whether various common assumptions in the Rule of Law literature are, or can be, consistent with one another. In this sense, the problem directly impacts individuals that discuss the meaning of the Rule of Law with reference to the common assumptions. This would encompass the paradigmatic figures of this literature—like Brian Tamanaha, Martin Krygier, and Jeremy Waldron—as well as those of us that refer to their work and cite or use the common assumptions of the Rule of Law more generally. In addition, the relative unclarity that results from the problem also impacts the more practically based discussions of the Rule of Law. As the general abstract conceptual discussion blurs into, and can influence, the practical application, there is an indirect impact on those individuals that seek to apply an idea of the Rule of Law.
My answer to the third question—regarding how this paper is likely to change future work—also operates on two levels. At the first level, I hope that my argument will cause critical reflection on the use and application of the common assumptions in future work relating to the concept or conceptions of the Rule of Law. This follows from the fact that I intend only to raise the assumptions’ potential inconsistency. In echoing my comment from this paper’s first paragraph, my raising the problem (and the paper generally) is a call to investigate the nature of change across conceptions in order that the assumptions can more clearly and accurately achieve the aims for which they are commonly deployed. (Whilst I raise one possible solution to the problem I point-out, I do not suggest it is the only solution.) In this sense, the benefit that I hope flows from my argument is both that individuals working in this field do two things: critically evaluate practices that have defined discussions about the concept of the Rule of Law for at least the last couple of decades; and, facilitate the empowerment of those same individuals to establish new ways of considering the meaning and content of the Rule of Law. This abstract/theoretical reflection about the way in which the concept is described feeds into the second level of operation (regarding the answer to the third question). At this level, after considering any changes in theoretical approaches there may be some indirect impact on the way that practitioners use and apply cognate approaches in considering the Rule of Law.
Before diving into my argument proper, a final comment is apposite. This article represents, in many respects, both a critique of current practices and a rallying cry in relation to future practices. Through illustrating that the form of conceptual change across canonical conceptions of the Rule of Law can impact the relative level of consistency in the assumptions that are used and relied on in the opening of so many Rule-of-Law-focused works, I demonstrate that there must—if we are to provide the strongest possible arguments relating to the contemporary idea of the Rule of Law—be consideration of the way in which change has occurred across conceptions. In other words, the fact that there is little consideration of the form or nature of change in ideas of the Rule of Law results in our reliance on potentially inconsistent assumptions. Where these assumptions play such a vital role in articles exploring the nature and content of the concept of the Rule of Law it is imperative that the assumptions relied upon set the strongest possible foundation. The avoidance of inconsistency—even potential inconsistency—is, therefore, not only highly desirable but also, I would suggest, is essential. It is on this basis, and for this reason, that I seek to explore and expose the potential for inconsistency across the assumptions that are used and, in closing, suggest—albeit briefly—one possible solution to the problem.
In what follows, In Sect. 2, I identify the common assumptions in the Rule of Law literature before, in Sect. 3, explaining why they are inconsistent. After providing a brief re-statement of the problem in Sect. 4, I very briefly suggest one potential way out of (or around) the problem in Sect. 5. Section 6 concludes.
