Basic Concepts of Legal Thought
George P. Fletcher
Oxford University Press
The Rule of Law
Of the all dreams that drive men and women into the streets, from Buenos Aires to Budapest, the “rule of law” is the most puzzling. We have a pretty good idea what we mean by “free markets” and “democratic elections”. But legality and the “rule of law” are ideals that present themselves as opaque even to legal philosophers. Many American jurists treat the rule of law as though it were no more than governance by rules. Thus we find Justice Scalia arguing explicitly that the rule of law is no more than the law of rules.1 And philosophers, such as Friedrich Hayek and Joseph Raz, make the same assumption that the rule of law means that the government is “bounded by rules fixed and announced beforehand.”2 Plying by the rules is, in some dubious contexts, a great achievement, but once societies have minimized graft and arbitrary rule, the “rule of law” seems to promise more than blindly playing the game. After all, the rules of the game might be horribly unjust.
There are in fact two versions of the rule of law, a modest version of adhering to the rules and a more lofty ideal that incorporates criteria of justice. We shuffle back and forth between them because we are unsure of the import of the term “law” in the expression “rule of law”. To explicate a rarely perceived ambiguity in English, we turn to a distinction between two concepts of law that is widely recognized in other languages but ignored in English.
Continental European languages, for example, use one term for law that express the idea of laws enacted-laid down, legislated-by an authoritative body. Thus Germans use the term Gesetz, French loi, Russian zakon, Spanish ley, and speakers of Hebrew hok. All these languages also contain a second word for law that expresses a higher notion of Law as binding because it is sound in principle.3 This alternative conception of law is expressed in the Continental European languages as Rech in German, droit in French, pravo in Russian, derecho in Spanish and mishpat in Hebrew.4 The closest translation of these terms in English would be “Right”, an arhaic expression for Law sometimes used in the translation of philosophical works.5 The connotation of Right (or Law with a capital L) is typically that of good or just law, which is binding on us because it is good or just . In many modern European languages (not Hebrew) the term for Law in this higher sense is used to refer to personal rights in the plural (Rechte, droits, prava, derechos). The appeal to human rights, therefore, is an indirect appeal to the same word “Right” that in European languages signifies law in a higher sense.6 When we speak today of protecting human rights, such as the rights to life, liberty, and dignity, we always have in mind rights that appeal to us because they are just as a matter of principle.7
Each of these two terms for law generates a distinct conception of the rule of law. If someone argues that the “rule of law” simply means that “the government is bound by rules fixed and announced beforehand”,8 they would be content with having the rules laid dawn by an authoritative lawgiver or legislature. This is what the Germans would call a Gesetzesstaat or the Communists once labelled “socialist legality” (sotsialisticheskaja zakonnost’). The rules are binding whether they they are good or bad.
Those who think that the rule of law is an ideal for good government stress the dimension of Right in the rule of law. The vision of state based on ideal law is captured in the German notion of a Rechtsstaat. The European notion of the “rule of law” is based always on the term for Law in the higher sense. In the dying days of the Soviet Union, President Mikhail Gorbachev, a lawyer, expressed his commitment to reentering European culture by reformulating the ideal of Soviet law. For several generations, the governing aspiration of Soviet law was “socialist legality” or, in Justice Scalia’s terms, conformity to the rules enacted by the state (except, of course, when the Party ordered a temporary deviation). As the state became more democratic in the Western sense, the ideal of law became the Rechtsstaat-the state based on higher law, expressed in Russian as pravovoe gosudarstvo. Gorbachev attempted to shift the foundational value of his legal system to the ideal version of the rule of law. The terminological shift that Gorbachev introduced is used today as Russia slouches toward a Western-style legal system.
In English, we are never quite sure what we mean by the “rule of law.” Do we mean rule by the laws laid down-whether the legal rules are good or bad? Or do we mean “rule by Law”, by the right rules, by the rules that meet the tests of morality and justice? Because we have only one word for law in place of the two commonly found in other legal systems, we suffer and perhaps cultivate this ambiguity.
Unlike typical European constitutions, the basic charter of the United States says nothing about a commitment to the rule of law. The closest constitutional analogue is the phrase prohibiting the deprivation of life, liberty, or property without due process of law.”9 The notion of “due process” provides a conduit for our best understanding of justice and principles of Right. In the language of Justice Cardozo the due process clause
expresses “the concept of ordered liberty.”10 The practice of bringing to bear higher law in constitutional interpretation constitutes part of the American commitment to “constitutionalism”.11 The same vision of a civilized legal order is embedded in the European conception of a Rechtsstaat. American legal thinkers seem, therefore, to split their faith in legality between two different nations of the rule of law. The quotidian work of the legal system conforms to Hayek’s and Scalia’s prescription: the rule of law means following the rules laid down. The invocation of higher la, of the principles that infuse justice in the legal order, is reserved for interpretation of the Constitution and, in particular, of the due process clause.
But what does it mean to live under rules governed by “the concept of ordered liberty” or “due process” or in a Rechtsstaat? It is not easy to specify the characteristics of this ideal. A minimum requirement might well be a commitment to some form of equality, at least to the avoidance of arbitrary discrimination between equality situated persons.12 Another requirement would be the maintenance of fair procedures for resolving disputes. There are, of course, merely the bare bones. The effort to introduce substantive values into “the concept of ordered liberty” has produced great controversy. In 1905 the Supreme Court ruled that unrestrained freedom of contract was one of these higher values;13in 1973, the focus had shifted to the right to have an abortion.14 Very few people support both decisions. Many of the political left condemn the former decision and support the letter; some on the political right condemn the letter and support the former. The rejection of both decisions has spawned a school of interpretation called “originalism”, which insists that all basic rights be spelled out in the Constitution.15
In the end, it might be as difficult to specify the characteristics of this ideal of due process or of a Rechtsstaat as it is to define the physical ideal of good health. The best approximation of health might be this: an organism is healthy if it is not ill. The burden falls on perceiving illness, and if there is no illness, the organism is healthy. We recognize breakdowns more easily than we can define the positive ideal.16 In the same way lawyers have a strong sense for the perversions that prevent a legal system from realizing the rule of law. One of them is willy-nilly decision making by judges who either do not follow the rules or exercise too much direction. Another is retroactive criminal justice, or punishing people for a crime committed before the law is announced. But even this approach of documenting perversions of the rule of law may run dry rather quickly. No one has yet given an adequate account, by this approach or any other, of the ideal conception of the rule of law.
In this chapter I take a novel approach to this nagging problem of definition by reflecting on three case studies taken from recent pages of post-Communist political life. After the changes of 1989, the Eastern European governments were in a state of great sensitivity to the ultimate value that should guide their new democratic orders. The events in Hungary from 1990 to 1993 provide a good window on one society’s struggle to establish the rule of law in the wake of forty-five years of dictatorship and repression. The three case studies that will engage us will be the taxi strike in the fall of 1990; the decision to prosecute a man named Miklos Vegvari who violated the old in the name of new democratic values; and the legal activism of the newly created Hungarian Constitutional Court. Each of these tales has something to teach us about the rule of law as a democratic ideal.
The Taxi Strike
It is worth beginning with taxi strike, for it is one of the most unusual phenomena of post-Communist political life. On Thursday night, October 25, 1990, the government made a sudden announcement that the price of gas would increase at the pumps. The new prices would slightly higher than in Austria, the closest Western country. The price increase came as an obvious consequence of tensions in Iraq and other oil-producting countries, of price hikes in the world market for oil, and of increasing efforts by the Soviets to shut off the spigot of subsidized gas that had flowed freely when Hungary was a dutiful colony. For Hungarians, nurtured on Communist subsidies, this was the first direct experience with the capitalist idea that consumers must pay the full (unsubsidized) price of the goods they buy.
The taxi drivers were upset not only by price increase, but by the government’s apparent duplicity in planning the move. The government actually had promised repeatedly not to raise the price of gas. The sudden declaration of the increase was designed to catch people off guard and when they were still exuberant after having celebrated on October 23 their national epic, the abortive 1956 revolution. With several days off from work, most people were in a good move. This was the first time since the transition to democracy that the Hungarians had openly and joyfully celebrated the passionate agony of 1956.
In 1990 it was not tanks but taxi cabs that clogged the streets and bridges of Budapest. Within a few hours after the government announced the price increase, the strikers managed to shut down the major traffic arteries in the city. They parked their taxies
all the major bridges, and threw up blockades around the city. Taxi drivers and private truck drivers cooperated spontaneously to generate blockades in provincial cities.
In the fall of 1990 I was in Budapest as a visiting professor at the local law school. I woke up that fateful Friday without advance warning of the strike. From my balcony overlooking the Danube, I noticed a large crowd milling around the Szabadsaghid- the “Freedom Bridge” leading from Old Market in Pest across the murky blue river to the palatial Gellert Hotel in Buda. I went out among the crowd. “Strike” was the word on the lips of the angry drivers hanging out by their cars blocking the bridge.
Events on Friday began to hint that this was more than a strike. The drivers had cordoned off the airport in Budapest; unless foreign businessmen were willing to walk the last few miles, they were better off sitting on the suitcases in the lobbies of luxury hotels. This ragtag collection of apolitical, tough-talking guys also managed to close the border to Austria. As in 1956, the only way to go through the fields and bypass the official checkpoints.
Business came to a standstill; shops closed early. Somehow people could get home, even if they lived and worked on opposite side s of the river. Though the subway was still running under the river, streetcars and private cars could not cross the Danube. The crowded subway stations became rumor mills. Reports began to circulate that food supplies were running low, that the hospitals could not receive deliveries of medicine. No one knew what was going to happen. The government was the fragile expression of a democratic order. Would it fail this first test?
The leaders of the leading half-dozen parties started speaking out, but in muted tones. The government, then run by the Hungarian Domocratic Forum party, tried to rally support by staging a counterdemonstration. The opposition parties, the Free Democrats and the Young Democrats, did nothing to exploit the situation. Their attitude was to keep their distance, watch what was going on, and urge a peaceful resolution. On Saturday, October 27, the mood began to stabilized. Standstill became the norm. Though the streets were still blocked, the crisp fall day invited strolling. Budapest came out onto the streets. Baby carriages and bicycles took over the lanes normally clogged with polluting vehicles. My sense on “Freedom bridge” was that most people were beginning to enjoy “sticking it” to the government. Then came the news that the police chief of Budapest had announced that, if the government ordered intervention, he would resign.
This was a curious situation for a country accustomed to order first and to law second. A group of workers now blocks the major traffic arteries of the city and everyone seems to applaud. At one level an act of force meets with general approval or, at least, indifference. Workaday citizens are deprived of their right to use the bridges, and they do not complain. They do not insist that labor be kept in its place. There was no doubt in my mind that if the Teamsters tried to shut down the bridges to Manhattan, the police would immediately don their battle gear.