As we saw in Hayek`s discussion (1973), the other side of the coin is the denigration of legislation, precisely because its adoption seems obvious and undeniable to represent the rule of powerful officials. Legislation is a matter of will. The legislative process produces laws simply because a group of people in an assembly decides that a particular law should be created. And this is done by the very men – powerful politicians – in whose power the rule of law is supposed to be an alternative. Fuller`s account of legality is best known for asserting that it represents an “inner morality” (or “inner morality”) of the law (1969, chap. 2). It plausibly points out that a legal system could not exist if all its laws lacked one of the following eight characteristics (or “desiderata”), which could be described as follows: (1) generality; (2) advertising; (3) prospectivity; (4) clarity; (5) non-conflict with other laws; (6) the possibility of complying with the law; (7) consistency over time; and finally (8) the congruence between the laws announced and their application. These represent the principles of legality which a legal system should strive to respect (1969: 41-44. For two insightful discussions of wishes, see Marmor 2007 and Kramer 2007, chap. 2).
What makes these principles an “inner morality” is an elusive question. Fuller`s key idea seems to be that society has the right to subject human behavior to the governance of rules (1969: 46, 49, 162). To succeed in this endeavor, the eight principles must be respected. In particular, principle (8) – the faithful application of the existing law – is necessary for citizens to obey the law (1969:209-10). In fact, the state undertakes (a) that it is possible for the citizen to know and obey the law, and (b) that if the citizen obeys the law, the state will also respect it (1969:39-40). Therefore, deviating from principles is an affront to the dignity of the citizen as a responsible actor (1969:162). Some jurists believe that there is a particular affinity between the rule of law and the defence and support of private property. Ronald Cass (2004:131) states that “an essential aspect of the commitment to the rule of law is the definition and protection of property rights.” This emphasis on the value of complexity—the ways in which complicated laws, particularly property laws, provide protections under which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258-69). No account of the rule of law is complete if it does not mention how this ideal is frowned upon. The glowing history of the rule of law in the works of thinkers such as Aristotle, Locke, Dicey, Hayek and Fuller was joined by opponents of legality such as Plato (in The Statesman), Thomas Hobbes (at least if the rule of law is to take us beyond the rule of law) and Carl Schmitt in 1923 (in his attack on parliamentarism and the liberal hypothesis, that rules may prevail even in conditions of endemic crises). Dicey had a knack for expressing the rule of law in terms of principles whose eloquent formulations beelied their deeper difficulties. His first principle of the rule of law was this: Yet critics have argued (for good reason) that something is missing from this normative representation.
Although the eight principles proposed by Raz to flesh out the content of the rule of law play a crucial role in explaining the legitimacy of political power4, the value of the rule of law also seems to encompass other important principles, such as the importance of legal procedures and forms of argumentation. 5 and the political responsibility of civil servants towards citizens or of each citizen towards others.6 An important conclusion emerges from the clarification of the concept of arbitrary government: respect for the rule of law means adopting the attitude towards public order necessary for the purposes of political power itself, i.e. for the aims and reasons, which can justify the existence of coercive government. This is a question whose answer may provide the key to understanding the virtue of the rule of law: What are the appropriate reasons for the government to act? What kind of rational action can meet the requirements of the rule of law? Before answering this question, we need to clarify two “crucial points” of the new Raz report. “First, any failure by the government to be guided by the law is not a violation of the rule of law. (page 6.) In other words, what matters is not that the government always gets a good answer to what the law, properly interpreted, requires of you. To put it in Ronald Dworkin`s vocabulary, it is more about avoiding “contempt” for the law and the reasons that apply to legitimate government.10 If a public servant attempts to act on these grounds, but fails to do so because of “error and incompetence,” he or she is not violating the rule of law until he or she “shows indifference to the motives, who should lead the government.” (Page 6.) (5) The principles of natural justice must be respected; The most fundamental limitation of Fuller`s account, however, is simply that it omits everything that is central to our ordinary conception of the rule of law, such as the independence of the judiciary, the effective ability of citizens to challenge the legality of government action in the courts, and due process in civil proceedings and suits. Fuller`s principles are simply those necessary to subject human behavior to the governance of rules. But they say nothing about the other conditions that must prevail if the law is to govern a community. (Indeed, Fuller may not have seen his principles of legality as consistent with the “rule of law,” a term he first uses in the “Response to Critics” in the revised edition of his book (1969: 187-242).) (3) The enactment of certain laws (of certain legal systems) should be guided by open, stable, clear and general rules; He recognized that some cases were so difficult that they could not be dealt with according to general rules – cases that required the concentrated insight of some judges; He used the term epieikeia (sometimes translated as equity). However, these cases should be kept to a minimum, and legal education and legal institutions should continue to play a role in how they are handled. Aristotle`s discussion of the general appropriateness of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994).
However, most people who value the rule of law do not accept this approach. If a law is properly drafted (if it is clear, understandable and generally expressed) and is promulgated and promulgated prospectively, and if it is administered impartially and with due process, they will describe this as a perfectly appropriate exercise of the rule of law. In fact, this is what many scholars mean by the rule of law: people are governed by measures that are usually established in advance and also applied according to the conditions under which they were publicly proclaimed. The argument that it should be set aside because it does not sufficiently contrast with the domination of the people seems perverse. Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume. At least the formal/procedural aspects generate some momentum in a substantive direction. It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements.
We can now see the full picture of the value of the rule of law: acting within the framework of the rule of law means that the government acts as the guardian of the interests of the governed. The rule of law concerns a specific form of political responsibility to perform a number of tasks “in the interest of the governed”. (p. 7.) It is a question of recognizing both a special relationship between the government and its subjects and a number of special duties. This means acting with the clear intention of “exercising [one`s] power in accordance with the law.” (page 7.) In summary, generality is an important feature of legality, which is reflected in long-standing constitutional antipathy to intattainder bills.