Why Legislatues May Fail to Provide for the Rule of Law: A Response to Tamanaha
Brian Tamanaha has delivered a tremendously interesting post at Balkinization regarding liberals and legal formalism. (HT Larry Solum.) There, Tamanaha "comes out" as a formalist because, in short, he argues that the Rule of Law is a value that both liberals and conservatives should treasure. Although movements such as legal realism have taught us that judges often don't "apply the law," instead of making the law, it remains the ideal that we should ask our judges to aspire to.
There's a lot more in Tamanaha's post that is worth reading, and, I'm sure, in his book Law as a Means to an End (which I myself have not read), but I thought I would comment on one telling statement he makes regarding law-making.
Tamanaha states, again, that the ideal of judging should be to merely apply the law. He then backs this up by stating: "that is what judges are supposed to do! . . . After all, as is taught in civics classes from the fourth grade through high school, in a democracy the legislature makes the law and judges apply it." This is, indeed, the mantra that we repeatedly hear from both liberals and conservatives: activist judges are "activist" when they "make" law instead of interpreting what the legislature has said. As all legal scholars "know," however, this doesn't apply when we are dealing with common law. As my 1L torts professor stated: "judges make law every day." In the case of the common law, scholars must either admit that judges are making law (as Judge Posner would say), or are making law but doing so in a way that makes it seem as though they are applying law (as Justice Scalia has said).
However, there is a "third way" in viewing what judges do with law. It is a view that I must say was completely absent from my law school education, but which must be dealt with if one is to discuss "applying the law" versus "making the law." That is the idea that, at least in the case of the common law, the law is the product of human action but not of human design. The law is what the community accepts as the rules of just conduct, and the courts merely apply those rules to the parties before them. These rules of just conduct exist because they are the rules that the community, through generations of use, have come to accept. They are not the accepted rules because the community ever came together and consciously adopted them. In this way law comes to be in a similar manner that language does: no one person or group sits down and comes up with a language, but through the actions of many individuals over time a system of rules arise that people may use to communicate with each other. Such a system is known as a "spontaneous order."
This view is, as many will recognize, that of F.A. Hayek (1899-1992), as adopted in his trilogy Law, Legislation and Liberty. (Another thinker with a similar view is Bruno Leoni. His classic work on the subject, Freedom and the Law, is available for free here.) Hayek has been criticized for a rather simplistic view of law's origins (see, for example, Richard Epstein's short article here), but even if one thinks Hayek was naive that, for example, the legislature should only "improve" private law in very rare circumstances, one must admit that Hayek has a point that much of what we call "law" came into existence not because a legislature or a judge "made" it, but because it was the product of human action but not human design.
I plan on blogging more on law as a spontaneous order in the future, but for now I would like to point out that, in one way, formalism of the kind Tamanaha discusses (that is, formalism as a belief that courts should not "make" law) is compatible with law as a spontaneous order. It is not, however, compatible with a formalism that allows the legislature to wily-nilly change the law. 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.
There's a lot more in Tamanaha's post that is worth reading, and, I'm sure, in his book Law as a Means to an End (which I myself have not read), but I thought I would comment on one telling statement he makes regarding law-making.
Tamanaha states, again, that the ideal of judging should be to merely apply the law. He then backs this up by stating: "that is what judges are supposed to do! . . . After all, as is taught in civics classes from the fourth grade through high school, in a democracy the legislature makes the law and judges apply it." This is, indeed, the mantra that we repeatedly hear from both liberals and conservatives: activist judges are "activist" when they "make" law instead of interpreting what the legislature has said. As all legal scholars "know," however, this doesn't apply when we are dealing with common law. As my 1L torts professor stated: "judges make law every day." In the case of the common law, scholars must either admit that judges are making law (as Judge Posner would say), or are making law but doing so in a way that makes it seem as though they are applying law (as Justice Scalia has said).
However, there is a "third way" in viewing what judges do with law. It is a view that I must say was completely absent from my law school education, but which must be dealt with if one is to discuss "applying the law" versus "making the law." That is the idea that, at least in the case of the common law, the law is the product of human action but not of human design. The law is what the community accepts as the rules of just conduct, and the courts merely apply those rules to the parties before them. These rules of just conduct exist because they are the rules that the community, through generations of use, have come to accept. They are not the accepted rules because the community ever came together and consciously adopted them. In this way law comes to be in a similar manner that language does: no one person or group sits down and comes up with a language, but through the actions of many individuals over time a system of rules arise that people may use to communicate with each other. Such a system is known as a "spontaneous order."
This view is, as many will recognize, that of F.A. Hayek (1899-1992), as adopted in his trilogy Law, Legislation and Liberty. (Another thinker with a similar view is Bruno Leoni. His classic work on the subject, Freedom and the Law, is available for free here.) Hayek has been criticized for a rather simplistic view of law's origins (see, for example, Richard Epstein's short article here), but even if one thinks Hayek was naive that, for example, the legislature should only "improve" private law in very rare circumstances, one must admit that Hayek has a point that much of what we call "law" came into existence not because a legislature or a judge "made" it, but because it was the product of human action but not human design.
I plan on blogging more on law as a spontaneous order in the future, but for now I would like to point out that, in one way, formalism of the kind Tamanaha discusses (that is, formalism as a belief that courts should not "make" law) is compatible with law as a spontaneous order. It is not, however, compatible with a formalism that allows the legislature to wily-nilly change the law. 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.
posted by Nico Jacobellis at 3:05 PM
2 Comments:
I suspect that you are on to something with your point that the combination of legislation and formalism presents some problems, and I hope you will expand on those issues in later posts.
However, I have some questions about this statement: "... [T]he Rule of Law means law based on settled expectations, not law based on what a majority can shove through the legislature."
Are you saying that a statute that departs from the common law -- perhaps dramatically -- is inconsistent with the Rule of Law simply by virtue of the scale of its departure from previously established law? Do you intend this as a general statement or as an illustration of what a formalist of a certain stripe would argue? Does it matter whether and to what extent that law was clear? Does it matter whether social, scientific or technological changes have unsettled expectations that may previously have been settled?
It seems that in a representative system of government the assent of the legislature lends quite a bit of legitimacy to a statute. That assent may not be adequate to make a statute consistent with the rule of law, but it seems (to me, at least) to be going too far to say that a statute is inconsistent with the rule of law merely by virtue of its departure from common law or the fact that it is a statute.
Maybe you are not equating 'settled expectations' with the common law -- you never used the words 'common law.' But either way, I wonder how we are to discern the settled expectations of a community. On just about any issue there is disagreement within the community about just what the expectations of the community are or should be, which expecations should be enforced by the civil or criminal courts, and how. Statutes usually serve to establish a new, changed or clarified set of expectations in circumstances where the expectations were previously different or uncertain. (Of course, not every statute improves the certainty of outcomes.) I will not suggest that passed legislation actually reflects the 'will of the people,' if such a thing can be said to exist at all. But the conclusion that legislation is inherently inconsistent with the rule of law seems to me to be premised on an unduly narrow concept of the rule of law.
Your response is very interesting, and I agree with much of it. My statement about legislatures making law was not meant to be a theoretical one, but rather was a statement about how the public understands the role of judges in our society. The status of the common law in our system is ambiguous, to say the least. I agree with you that a Hayekian version of the rule of law can be built on common law terms (I discuss Hayek extensively in my book On the Rule of Law). Interestingly, Hayek switched his view of the common law, initially saying that it was not consistent with the rule of law, but later coming around to the opposite view. You are right to think that there is much here that bears further thought.
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