Law and Politics, Hong Kong Development Forum, April 16, 2007

Law and Politics
Through the Lens of the Western Tradition

Hong Kong Development Forum

April 16, 2007

Jeffrey S. Lehman

It is a pleasure to be here today to participate in this forum.  I want to express my thanks to Ronnie for inviting me, and to Dean Wang Zhenmin and Mr. Sin Por Shiu for joining me to discuss the relationship between law and politics as it has been discussed in different legal and political traditions.

My responsibility is to begin by describing the way this relationship has been discussed within the Western legal tradition, which is of course the tradition that I know best.  And you will note that I use the verb “discussed,” rather than “understood,”  because the relationship remains to this day the subject of questions and debate, rather than a settled understanding. I look forward to learning from Dean Wang and Mr. Shiu about how the same topic has been discussed in an Eastern tradition. 

I have provided you with a handout so that you may follow my discussion.  On one side is an outline of my remarks.  On the other side is my own effort to describe the “Rule of Law,” which I will reach in Part II of my comments.

In the west the relationship between law and politics is often approached by first asking about the relationship between law and morality.  

For hundreds of years, Western legal philosophers have debated whether there is a necessary overlap between law and morality.  The so-called Natural Law Philosophers, such as St. Thomas Aquinas and the English theorist Blackstone, contend that there is a natural law in the universe, which exists apart from the activities of politicians and judges.  

To these philosophers, a man-made rule that conflicts with natural law is not law at all.  People have no duty to obey it.  Perhaps the most eloquent voice for this perspective was that of Antigone in Sophocles’ play.  The political leader Creon had issued an edict prohibiting her from burying her brother.  But Antigone insisted that this edict was not law at all, because it was contrary to the natural duties of a sibling.  In her words, “’Twas not the voice of justice speaking.”

Opposed to natural law theory is that of legal positivism, which is often traced to the theorist Jeremy Bentham.  To a positivist there is no natural law in the universe, derived from morality.  All law is a human creation.  It may be moral, and it may be immoral.  But it is still law.

Now most people believe that there are moral principles that may or may not end up reflected in a particular piece of legislation.  So you might well ask, “What practical difference does it make whether we choose to call our overarching moral principles a ‘natural law,’ or we just call them ‘natural morality’?  Is this just a matter of semantics?”

The philosophers who debate this question believe it is more than just a matter of semantics.  Because it affects whether we have any duty to obey a piece of immoral legislation.

To a natural law theorist, there is no duty at all.  It’s immoral.  It’s not law.  No moral duty to obey.  And no other kind of social duty to obey.  And it would be wrong for the state to punish you for disobedience.

To a positivist, there might be a social duty to obey an immoral law.  To be sure, you might be morally justified in disobeying.  It might in some sense even be admirable.  But you would still be breaching a

social duty, and it would not be wrong for the state to punish you.

So if you are positivist, what makes a law binding on the citizens?  What creates this social duty to obey?

Perhaps the most influential modern-day positivist is H.L.A. Hart.  According to Hart, the validity of a law – its ability to legitimately bind the citizens – is a function of social convention.  It is really a matter of pedigree.  Was the law created in accordance with what he calls a master “rule of recognition,” that is generally accepted within the society as the test of whether the sovereign has spoken.  

Natural law theorists object that this view of law means that there is no moral duty to obey any law, even a moral law.  And positivists for the most part concede that is true.  The duty to obey the law is not a point of ultimate morality.  It is something different.  And the ability of the state to enforce its laws is not morally grounded either.

Now for many positivists this doesn’t feel quite right as a description of the societies that they live in, or at least of the societies they want to live in.  And so they suggest that a society might choose, as part of its rule of recognition, to incorporate certain tests that are morally derived.  These scholars, like Hart himself, or Jules Coleman, are sometimes called “soft positivists.”  And I want to suggest that the typical Western understanding of the Rule of Law is a soft positivist understanding.

On the back of my handout, I have offered my own description of what is meant by the Rule of Law.  I’m not going to read through it with you – you can do that at your leisure.  But I want to make a few observations.

First, the notion of the Rule of Law can be seen as a kind of Rule of Recognition that affects both the creation of laws and the enforcement of laws.

And second, as I understand it, the notion of the Rule of Law is a soft positivist notion.  It requires that laws be created with a certain minimal morality to them, respecting the dignity and fundamental equality of human beings.  And it requires that they be enforced in ways that also reflect a certain minimal morality, without corruption, without cruelty, and in ways that keep punishments proportionate to the seriousness of a legal violation.  

In the first footnote, I note that one might have a less substantive, “hard positivist” conception of the Rule of Law, one that requires only that laws be explicit, general, and validly enacted.  Personally, however, I fund that kind of hard positivism, that kind of purely formal notion of the Rule of Law, to be much less satisfying.

So for me the Rule of Law incorporates certain moral notions.  But let me be quick to say that for me the project of giving those moral notions practical content is not a philosopher’s project.  It is a collective task within a society.

So let’s talk, then, about these two elements of the Rule of Law – the creation of legal rules and the enforcement of legal rules.  

Now the creation of legal rules – the adoption of legislation – is in many ways the essence of what we call “politics.”  Legislation is made through politics.  Politics creates the law.

But the point of all my earlier discussion of soft positivism, and the rule of recognition, and the Rule of Law is this.  At the same time that politics creates the law, a certain conception of law is what creates politics.  Or at least, a conception of the Rule of Law like the one on my handout can determine what kinds of politics are permissible and appropriate, and what kinds of politics are impermissible and inappropriate.

Here I want to distinguish between two kinds of legislation – regulatory legislation that attempts to regulate individuals’ behavior, and non-regulatory legislation that does something else, like spending money.

Regulatory laws restrict individual freedom.  They say that you don’t have the freedom to punch your neighbor, or steal his car, or pollute his environment.  What makes such laws legitimate?  Using my description of the rule of law, what makes them respect the dignity and fundamental equality of all human beings?

For John Stuart Mill, the classic liberal, the answer was that they protect other members of the community from harm.  For Mill, that was the only justification.  Others, however, have found further regulatory activities to be legitimate as well.  For example, Patrick Devlin argued that it is legitimate to regulate behavior in order to create a common morality within the society – a fundamental agreement about good and evil.  And others have argued in favor of paternalism, the notion that the state might limit people’s freedom of action for their own good.

And what about non-regulatory activities?  When can we say that it is a legitimate exercise of politics for the legislature to spend public money on a road, or a hospital, or a swimming pool?  When is it legitimate to transfer public money to a private individual, such as an unemployed or retired person?  And when is it a legitimate exercise of politics for the legislature to raise money for public expenditure, either by coercive taxation or by profit-generating activities?  Perhaps the central debate in political philosophy at the end of the twentieth century concerned such questions: whether the most just society reflects the kind of expansive redistributive values advocated by John Rawls in his famous Theory of Justice, or the stronger commitment to individual property entitlements championed by Robert Nozick in Anarchy, State, and Utopia.

These decisions – about forms of regulation, and about defining what we know as the public sector – are at the core of politics.  How does the Rule of Law constrain them?

Some Rule of Law constraints are procedural.  Each society has rules that determine who has voice, who has a vote, and what kind of majority or supermajority or consensus or compact is required for enactment.  Whether these rules are adequate is, at the end of the day, a question of local acceptance, and that is something that may change over time.  The United States was created in part because the people were no longer willing to accept a system of taxation without representation.

But in order for lawmaking to be legitimate, the Rule of Law requires more from politics than just procedural niceties, with the right officials casting the proper ballots at the proper times.  Legitimate lawmaking also requires that the lawmakers exercise their power with a particular substantive orientation.  Expressed positively, that orientation is to be towards the promotion of the general public good.  Expressed negatively, that orientation is to be free of corruption.

I think it is worthwhile to pause for a moment to consider how much the legitimacy of politics depends upon that line between the public good and private corruption.  And also to consider how difficult it can sometimes be for the law to police that line.

Those who govern execute a public trust.  They act on behalf of an entire political community.  They are invested with a power not granted to ordinary citizens.  They are expected always to exercise that power for the good of the community.  And they are expected to refrain from using that extraordinary power to direct special benefits to themselves, their families or their friends.

It is easy to think of extreme forms of corruption that deprive laws of their legitimacy.  Think of the legislator who supports the creation of a special park, not because of the park’s benefit to the public but rather because in his own mind the legislator wants to enhance the value of adjacent land that he owns.  His action is corrupt, and the legitimacy of the law is undermined, even if most people would say that the park is a good idea.

But what if, instead of owning adjacent land, the legislator simply knows that he and his family enjoy parks more than most citizens?  Or what if he knows only that about one third of the population likes parks and two thirds dislikes parks, but he happens to be among the one third that does and thinks that the one third has a better understanding of society than the majority?

What if the private benefit the politician seeks is limited to the benefit of remaining in power?  Suppose he believes that one constituent is unusually influential, and so he supports laws that are likely to please that constituent?

And what if the politician’s action is not even support for a particular law, but is limited to being available for conversation with the special constituent, always ready for a lunch or a private meeting to discuss the public good?

These are ferociously difficult problems.  They do not lend themselves to easy answers.  Let me say only that over the past few decades Westerners have embraced more and more strongly a few core ideas.  One is the so-called “publicity principle,” strongly defended by Immanuel Kant.  John Rawls described this principle as follows:  in a good society, the political order does not depend on deceptions that mislead us about how the institutions really work.  So, if an official would not want his activities described in the newspapers, then there is reason to wonder whether a de-legitimating corruption is at work.  In modern parlance, this is the notion of “transparency.”

Other core ideas for legal legitimacy have also been suggested.  For example, the scholar Lon Fuller made powerful arguments that statutes should be prospective and not retroactive, should be made widely known to the citizenry, and should not punish people for circumstances beyond their control.

Of course, legitimacy under the Rule of Law is not solely about the aspect of politics that concerns the

making of the laws.  It is also about the enforcement of the laws.

In most societies the process whereby laws are enforced upon the public involves two different branches of the government – the bureaucracy of the executive, and the altogether quite different judiciary.

How does politics relate to the enforcement of law through an executive bureaucracy?  This is of course a very large topic, and we can’t explore it in detail.  But at a general matter I would emphasize two insights from Western studies of bureaucracy.  The first is the argument of Max Weber that bureaucracies work well when they are professionalized – when there is a rigorous, thoughtful division of labor and each part of the structure is devoted to doing one task well.

The second is the so-called “principal-agent problem.”  The insight here is that whenever one party, the “principal,” charges another party, the “agent,” with responsibility for carrying out the principal’s wishes, the agent’s personal self-interest can get in the way.  A variety of techniques are used to address that problem, usually by trying to give the agent incentives to carry out the principal’s wishes.  They are all imperfect, and they are all expensive.  But political scientists have done a lot of work to analyze what kinds of responses are likely to be most effective in different circumstances.  In the case of government bureaucracies, the incentives usually relate to the reputation of the bureaucrat, and often they come back to the notions of transparency and publicity, just as they did with legislators.

But what about the judiciary?  How is it that judges implement and enforce legal rules?  What role does politics play in that activity?

For the past century, this question has been at the center of debate among American law professors and judges.  The question is a variation of the more general principal and agent question.  And it is, what exactly does a good, legitimate, non-corrupt judge do?  What is the judicial consciousness?  Is a judge a different kind of policy actor from a legislator?

In the nineteenth century, the prevailing view was what is today known as formalism.  In this view, the judge was a scientist.  The law existed “out there.”  It might have been made by legislators.  It might have been made by the people who wrote the Constitution.  Or it might have been part of the so-called common law – principles of law that judges “discovered” by thinking carefully about what the just outcome might be in an individual case, taking account of what the just outcome had been in other similar cases.

So to the formalist the job of the judge was to examine the available sources of law and discern the correct “principle” of law that “fit” the pattern of authorities that lay before him.  Next, the judge was to determine what the facts were in the case was before him.  Finally, the judge was to apply the law to the facts, producing the outcome in the new case.

None of this really called for the judge to exercise independent discretion.  What it required was intelligence, judgment, and an ability to apply the principles of formal logic.

In the 1920’s, this formalist view came under attack by a group of professors who called themselves realists.  Led by Karl Lewellyn, the realists declared that, in any case interesting enough to spend time on, the rules “out there” were not clear and precise enough to guide a judge to a single, unique answer.  

So how did judges choose among several possible answers?  According to the realists, judges could act whimsically.  As the realist judge Jerome Frank put it, the outcome in a case might be determined by what the judge had for breakfast.  More reasonably, judges could quietly draw on their own moral and political values, perhaps not even realizing they were doing so.  But the realists claimed that there was a better way.

For the realists, a good judge would go beyond the legal materials put before him – the statutes and the decisions other judges had made in other cases.  He would not rely on highly abstract categories, like what is a “legal right,” or a “property interest.”  Arguments about such fluffy categories were, in the words of Professor Felix Cohen, nothing but “transcendental nonsense.”  Indeed, for some legal realists, even the categories of “public” and “private” were not solid enough to be a basis for a decision.

So a good realist judge would not ground decisions in this kind of argument.  Instead he would apply a “functional approach.”  He would use the teachings of political science and economics and philosophy to think about how the different possible decisions would affect the larger society.  The judge would balance the competing interests involved (sometimes creating a so-called “balancing test”) and choose the result that best promoted good societal goals. 

The theoretical breakthrough of legal realism – in hard cases judges have to make policy – effectively won the day in American law schools.  For the past half century, the debate has been much more about how good realist judges should go about making policy.

I will conclude by noting the two most influential schools of thought to arise out of legal realism.  The first is known as “law and economics.”  

The law and economics movement arose in the 1960’s.  It argued that when judges decide cases and thereby create legal rules, they should pay attention to the property entitlements and behavioral incentives that those rules establish, and they should try to make decisions that maximize the society’s efficiency and social welfare.  The economist Richard Coase showed that in a world where there is no cost to people entering into transactions with one another, where one allocated entitlements would have no effect on efficiency.  But in a world where transactions are expensive, some forms of entitlement create more efficient societies than others.

The critical legal studies movement arose in the 1970’s.  In many ways, it took the realist movement to its logical conclusions.  It asked why, fifty years after legal realism burst onto the scene, lawyers and judges were continuing to talk in formalist, scientific terms.  It argued that this could be explained by larger social forces, in particular the struggle between the powerful and the weak in society.  To the critical legal studies scholars, it wasn’t just individual cases that reflect that struggle.  It’s the entire vocabulary of the law.  By using formalist, scientific terms, they claim, the powerful in society “mystify” what is going on.  They use that mystification to help persuade the weak to accept their fate, concealing the extent to which law is really being used to favor the powerful.  

Critical legal scholars drew heavily on European social theory to analyze the “structure” of the law in different areas, and to analyze what effects that structure had on the larger society.  Over and over again, they argued that judges were, consciously or unconsciously, accepting and using legal categories in ways that maintained indefensible arrangements.  

So where are we today?  Allow me to summarize.

In the west, the dominant view is against natural law, and in favor of a kind of soft positivism, a view that law is created within a society, but that societies might well include moral values into their rules of recognition.

Legislators create law through the process of politics.  But the notion of the Rule of Law requires that their politics follow certain constraints.  Regulatory and non-regulatory powers must be exercised for appropriate ends.  Legislators must be adopting a mindset that is oriented towards the public good rather than corrupt, private gain.  They must accept the requirements of transparency.

Of course, laws must be implemented.  The bureaucrats who implement are themselves open to political influence, and law constrains them in similar ways.  It tries to develop responses to the principal-agent problem.

And judges?  Well, western thought no longer thinks of them as mere scientists or technicians.  The Realist insight has prevailed.  It is accepted that they, too, are a part of the overall political structure.  The challenge is to ensure that they exercise their power in ways that support a judicial culture that is responsible and deferential to other branches of government, that promotes the social good, and is also honest about where and how it is exercising discretion.