[Editor’s Note: This is the fifth entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, the third is available here, and the fourth is available here.]
—Jeff King, Professor of Law, University College London
One question about constitutional boundaries relates to whether constitutional principles require the state to take regulatory action in the private sphere. An exploration of that idea is sometimes found in discussions of constitutional social rights. Less has been said about it in connection with the rule of law concept. In this post, I outline some of the thinking set out in my paper for the constitutional boundaries workshop, which has led me to conclude that the best conception of the rule of law would require the provision of a legally structured welfare and regulatory state.
Anglo-American jurists in the post WWII period have tended to embrace a quite narrow conception of the rule of law. The idea, described as ‘justice as regularity’ by John Rawls and as a ‘formal’ account by Joseph Raz, is that the rule of law is a political ideal that imposes obligations on states to (1) make clear law; (2) do so in a transparent and consistent manner; (3) apply it consistently to all persons without distinction, and especially to public officials; (4) adjudicate all legal disputes fairly before independent and impartial courts; and (5) secure access to such courts. In brief: the rule of law is here concerned with how any given law is made and applied, and the only demands on the substance of the law is that it be clear and prospective.
What drives this conception and its tidy list of features? Both Joseph Raz and Lon Fuller take the following justificatory tack: law cannot function as law if it cannot guide behavior; it cannot guide behavior unless it observes the features listed above; and so the rule of law ideal must be organized around enumerating and expounding such features. The capacity for law to guide its subjects’ behavior is the ‘basic intuition from which the doctrine…derives’ (Raz) and Fuller took the view that a failure to do that was to show exactly how ‘law can fail.’ And stopping with such a list, adds Raz, not only identifies a set of practices having great social value (the ‘virtue’ of the rule of law), but also avoids collapsing the rule of law idea into a complete social philosophy. His theory thus offers conceptual ‘hygiene’ (in the contemporary vernacular), and provides a rigorous account of those features that allow us to say that a legal system is in, following John Finnis, ‘legally good shape.’ Although Jeremy Waldron puts greater emphasis on the importance of procedure in his account of the idea, he largely agrees.
In the English-speaking legal academy, and perhaps among much of the readership of this blog, this account has become dominant. I reject it because the account offers no good reason for thinking that behavior guidance should be the dominant idea generating an account of the rule of law, and because the worry over conflating the rule of law with justice is not only exaggerated but falsified in practice. I’m in good company here. Among some leading judges and in international diplomacy, the narrow formal account is rejected. The Council of Europe’s Venice Commission of Democracy Through Law and the United Nations both subscribe to a more robust version, as did the highly esteemed but hardly radical British judge, Lord Bingham, after whose memory a leading institute on the rule of law was founded in London. In all these conceptions, articulated by publically appointed representatives of a wide range of legal systems, the rule of law is concerned with proscribing arbitrariness and also requires the state to protect human rights. The internationally recognised rule of law indices are similarly concerned with rights and substance.
This is not a modern reboot. As Julian Sempill has shown in his profound work on the rule of law, the ‘limited government’ conception that was evident in the work of John Locke, James Harrington, Algernon Sidney and notably by the Founding Fathers of the American constitution in the seventeenth century, was much richer than the formal tradition that Sempill also rejects. And as I show in my contribution to the constitutional boundaries workshop, the approach taken from Locke through Kant and into the 19th century flowering of the Rechtsstaat principle in Germany – as well as in the related work of Friedrich von Hayek in the 20th – was also bound up with substantive political theories of the role of law in a modern state. In this broader, often called ‘substantive’ tradition, a core theme is that the rule of law entails the rejection of arbitrary power. It requires that such be tamed by legal rules, and often connected to basic rights and self-government.
If this account is accepted, the relevance of the welfare state comes quickly into focus. Even putting aside the fact that social rights are human rights, arbitrary power is a concern in private relations as much as it is in state-citizen relations. Indeed, far more so since we are at risk of it in the employment, banking, rental accommodation, and for many people, health and education contexts – at risk of it every day in other words. But precisely this line of reasoning is what worries Raz and others. If we bank on so loose an idea of arbitrariness then before long the rule of law and justice become indistinguishable. Those who use Philip Pettit’s work on republicanism as non-domination to animate their idea of the rule of law should feel that charge quite keenly. Pettit himself takes a narrower view of the rule of law.
In my approach, I do not try to extend the rule of law conception by appealing to a rich theory of arbitrariness, nor a theory of human rights. I rather argue from a different set of premises and intuitions. Among them is the claim that the rule of law has always (and in Kant explicitly) offered an idea that the state has a duty to protect people with law. In Kant’s theory it was to provide legal security for rights (securing the principle of external freedom), and in the Anglo-American conception it was to protect the general public with ‘law and order’ as well as to protect freedom from arbitrariness. To put the point more abstractly, we can say that anarchy is incompatible with the rule of law. I infer from that proposition that the absence of anarchy requires a positive programme of legal regulation. I illustrate the appeal of these propositions by reference to certain examples of private behavior that even the official allowance of which seems an affront to the rule of law: land invasions, bounty hunting, vigilante and paramilitary activity, and private security or law-enforcement in particular estates or domains, whether by criminal gangs or landholders and businesses. The principle that makes these activities seem an affront to the rule of law is that only the state can be legitimately authorized to use force in this way. The positive programme of legal regulation here, then, is that law must include proscriptions on the private use of coercion, whether by a complete ban or regulatory micromanagement. There is something special about coercion that requires especially careful legal regulation. If we have regard to the core functions of law, we can see why coercion must be prescribed. And it is entirely appropriate to look to the core functions of law in generating an account of the ideal of the rule of law.
I contend that non-consensual exploitation – which occurs when someone takes unfair advantage of another under circumstances in which that other has no choice but to consent – is analogous to coercion. Both coercion and non-consensual exploitation usually involve non-consensual harm. On my understanding, the rule of law concept suggests a proactive state duty to regulate both. A core function of law is to stop predatory behavior of this kind. No rule of law state can justifiably stand by idly while the strong prey on the weak.
The toleration of predatory behavior has also, interestingly, been linked to much social unrest that has disrupted many legal and social orders. We have see that happen in both wholesale fashion (e.g. revolution), and retail fashion (e.g. crime, corruption). We can thus recall in this context the oft-recognised relationship between legal obedience and the legitimacy of law. In brief: there’s no place for riots in a proper rule of law state.
Suggested Citation: Jeff King, I-CONnect Symposium on “Constitutional Boundaries” — The Social Dimension of the Rule of Law, Int’l J. Const. L. Blog, Apr. 27, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-the-social-dimension-of-the-rule-of-law
The author is a General Council member of the ICON Society, and the recipient of a 2017 Philip Leverhulme Prize in Law which will enable him to complete a monograph on this project.
 John Rawls, A Theory of Justice (Rev. Edn, HUP 1999) pp.206-213;, Joseph Raz, ‘The Rule of law and its Virtue’ (1977) 93 LQR 195. See also Lon Fuller, The Morality of Law (Rev. Edn, Yale University Press, 1969).
 John Finnis, Natural Law and Natural Rights (OUP 1981) 270.
 Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008-9) 43 Georgia L Rev 1; ‘The Rule of Law and the Importance of Procedure’ in J. Fleming (ed), Getting to the Rule of Law: NOMOS L (NYU Press, 2011); Jeremy Waldron, The Rule of Law and the Measure of Property (CUP 2013).
 Venice Commission for Democracy Through Law, ‘Report on the Rule of Law’, adopted at the 86th Plenary Session, on (Study No. 512 / 2009) (4 April 2011); Report of the Secretary-General of the United Nations: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616); Thomas Bingham, The Rule of Law (London: Penguin, 2010).
 See M Versteeg & T Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’ (2016) 42 Law & Social Inquiry 100.
 Julian Sempill’s ‘Ruler’s Sword, Citizen’s Shield: The Rule of Law and the Constitution of Power’ (2016) 31 Journal of Law & Politics 333.
 Friedrich August Hayek, The Constitution of Liberty (London: Routledge, 1960); and Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (London: Routledge, 1982).
 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997) 174-176.