Ratio Juris. Vol. 2 No.

1 March 1989 (79-96)

copyright 0 Jeremy Waldron 1989

The Rule of Law in

Contemporary Liberal Theory*
JEREMY WALDRON

Abstract. Existing accounts of the Rule of Law are inadequate and require fleshing out.
The main value of the ideal of rule of law for liberal political theory lies in the notion
of predictability, which is essential to individual autonomy. The author examines this
connection and argues that conservative theories of rule of law claim too much. Liberal
theory equates the rule of law with legality, which is only one of the elements necessary
for a just social order.

In this paper, I shall discuss the relation between the procedural values and
principles associated with the rule of law and the liberal view that social predic-
tability is a necessary condition for individual autonomy. But it is worth noting
at the outset that the term "the rule of law" is used quite widely, and only some
of its uses have the connection with autonomy that I want to elaborate. In the
first few sections, therefore, I shall make some general comments about the use
of this idea before turning to the main theme.

I. One Law for All?

In 1885, in his Introduction to the Study of the Law of the Constitution,
A. V. Dicey used the term "the rule of law" to introduce what he took to be
three broad principles of the British constitution: ( a ) "no man is punishable or
can lawfully be made to suffer in body or goods except for a distinct breach
of law established in the ordinary legal manner before the ordinary courts of
the land"; ( b )"every man, whatever be his rank or condition, is subject to the
ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals"; and (c)"the general principles of the constitution. . .are. . . the result
of judicial decisions determining the rights of private persons in particular cases

I am grateful to Desmond King, Don Herzog, and especially Kim Scheppele for comments on
an earlier draft of this paper.
80 Jeremy Waldron

brought before the courts" and not vice versa (Dicey [1885] 1959, 188, 193,
195). These are, as Dicey notes, all attributes which some legal systems have
and others lack, and so they are expressed as desideranda rather than as the
essence of what it is for something to be a law or to qualify as a legal system.
Some of Dicey's principles are no longer regarded by many as desideranda
at all. The English legal system is widely believed to be impoverished by the
traditions embodied in ( b )- particularly the lack of a specialized body of public
law to cover the sort of activities (from the withholding of information to the
issuing of welfare cheques) that only state officials are likely to engage in (Harden
and Lewis 1987) - and in (c) - the lack, for example, of any body of constitu-
tional principle comparable to that of the United States, save what we have
managed to import under the auspices of the European Convention on Human
Rights. The inadequacy of the view that the same set of rules should be sufficient
to govern all aspects of social life - from disputes between neighbours, through
private commerce, to public administration and the workings of democracy -
is illustrated by the case of Malone u. Metropolitan Commissioner of Police
([1979] Chancery Law Reports 344). There it was held that a complaint that
one's telephone had been tapped by the police without justification could not
found an action in damages, since tapping a telephone at the exchange did not
constitute an actionable trespass in private law. The idea that no greater
safeguards against official power are needed than are provided against the
trespasses of one's neighbours seems antiquated in the context of the modern
state - as is the correlative assumption that police officers and others acting
in an official capacity have a background interest in freedom of action which
is no different in kind from that of the ordinary citizen.

11. Law and the Rule of Law

When modern English writers pay lip service to Dicey, it is usually on the basis
of a much less determinate conception of the rule of law than his. Principle
(a)is generally accepted, but in place of principles ( b )and (c), we have the vaguer
doctrine that there should be some laws governing and limiting the action of
state officials, and that there should be provision for the impartial enforcement
of those laws at the behest of the ordinary citizen whenever there is reason to
believe that they have been violated.
Part of the difficulty with Dicey's doctrine is that it presupposes we know
what is meant by "the ordinary law of the realm" and other similar phrases,
and that, in demanding that officials should be subject to law, we have a clear
idea of the sort of thing that we want them to be subjected to. But there are
conceptions of law in existence which would not satisfy those who make this
demand. Thomas Hobbes defined "law" as "the word of him, that by right hath
command over others" (Hobbes 1981, 217); but few of us would regard a state
as subject to the rule of law simply because officials selected for torture and
detention only those whom they had been commanded by their superiors to
 The Rule of Law in Contemporary Liberal Theory 81

select. According to many positivists, a rule may be a law though it is kept

secret from the citizens; but again we are unlikely to say that a state is subject
to the rule of law if none of the ordinary citizens knows the principles by which
administrative action is controlled.
Modern discussion of the rule of law has therefore tended to focus on the
specification of certain formal or procedural characteristics which commands
and rules may have or lack, but which are thought to be desirable on various
grounds connected with liberty or justice. What are these characteristics? The
two most important ones are that laws should be universal in form and consis-
tently applied, and that laws should be sufficiently well known to the citizens
to provide a basis on which they can plan their lives. The two are, of course,
quite distinct: A secret law can be universal in application; and a law that
provides only that some particular person should be taken into detention can
be perfectly well promulgated and taken into account by that person and others
in the organization of their lives. Note also that insistence on these characteristics
is not by itself the principle of the rule of law. The principle of the rule of law
is the indeterminate version of the Diceyan doctrine I mentioned above: That
the actions of state agencies and officials should be subject to laws which the
ordinary citizen can enforce, and the ordinary citizen should not be subject to
state power except on the basis of law. The characteristics I have mentioned
tell us what the term "law" is supposed to mean for the purposes of this doctrine.
(A rule of law theorist need not be committed to the analytic claim that they
tell us about the meaning of "law" in itself.)

111. Universal Laws

In logic, a rule is universal if it does not contain proper names or other particular
referring devices: It says that action of a certain type is to be taken in situations
of a certain type rather than that a particular specified person or situation is
to act or be dealt with in a particular way. However, the issue is not just one
of formulation, for any legislator who wants to deal with just one particular
case can usually invent a general description that applies to it alone. So let us
say, more broadly, that a universal rule is one which has not been enacted purely
in order to apply to some particular person or situation. It is one which has
been enacted to deal with persons, actions or situations of a certain type, and
which can be justified on that basis. Of course, the rule of law does not prohibit
the making of particular legal orders (e.g., "Waldron must produce this paper"),
but it insists that the making of such orders should be guided by the application
of universal rules ("People must honour their undertakings," etc.), or at least
justified in terms of universal principles.
Why is it thought desirable that society should be governed by universal rules
or principles? The Kantian tradition identifies universality with reason: The idea
is that there can be no sufficient reason for distinguishing between particular
cases except on the basis of some universalizable feature which the one case
82 Jeremy Waldron

exhibits but the other lacks (Kant 1969). But we cannot deny that self-interest
or personal feelings may provide a reason for a legislator to single out a particular
case for special treatment. Instead of rationality, some ideal of legal equality
may be invoked to justify the requirement: Such laws as there are should apply
equally to all. But this is either too strong or too weak. It is too strong if it
amounts to Diceys original thesis ( b )that there should be no laws addressed
to or concerning the conduct of special categories of people (motorists, officials,
policemen, etc.). But legal equality is too weak if it amounts simply to the
doctrine that similar cases should be treated similarly. (Indeed that doctrine
is more or less identical to the universality requirement and so cannot be adduced
as an argument for it.) Certainly there is no guarantee that any substantive goal
of equality will be promoted by adherence to the universality requirement. In
the political circumstances of the real world, the reduction of inequality (along
some dimension such as civil rights, income, or opportunity) might sometimes
be better promoted by particularized decrees.
For Hayek, the virtue of universal rules is that their effect on particular
individuals cannot be foreseen at the time they are laid down so that a persons
subjection to law does not leave him at the mercy of the lawgiver (Hayek 1960,
153). But this is misleading: The most that the requirement protects against is
particular persons being made subject to the will of the lawgiver. It does not
protect against whole classes of people being made subject to the will of the
lawgiver, and that may be just as offensive to freedom.
Hayek also suggests that universal rules provide fixed features of the social
environment around which we can plan (Hayek 1960, 152-53). But though, as
we shall see, predictability and the capacity to plan are very important for the rule
of law, they have nothing to do with universality. A particularized rule, if it is
stable and well-known, can provide just as much of a basis for planning as a
universal one. And a set of universal laws may make planning impossible if they
are not also settled, well-known and general. (The distinction between generality
and universality may need explanation: One should not lie is more general than
One should not lie to ones wife on her birthday, but both are universal (Hare
1963, 37ff.) But Hayeks claim about predictability may be true of the demand
for consistent application of the laws. Unlike particdarized legislation, haphazard
or partial application of the laws by judges and officials cannot form a basis for
social predictability. The consistent application of even unjust laws has the virtue
that those subject to them at least know what is demanded and they can try to
protect themselves accordingly (Rawls 1971,59). But that advantage is bought at
a cost. If a law is unjust, a requirement that it be applied consistently may prevent
a good judge or official from surreptitiously rescuing anyone from injustice.

IV. Arbitrariness and Integrity

Philip Selznick argues that the proper aim of the legal order. . .is to minimize
the arbitrary element in legal norms and decisions (Selznick 1969, 13). This
 The Rule of Law in Contemporary Liberal Theory 83

may be so, but Selznick's conception of non-arbitrary law takes us far beyond
the modest pretensions of the rule of law ideal:

Rules are made arbitrarily when appropriate interests are not consulted and when there
is no clear relation between the rule enunciated and the official end to be achieved. Rules
are arbitrary when they reflect confused policies, are based on ignorance or error, and
when they suggest no inherent principles of criticism. Discretion is arbitrary when it
is whimsical, or governed by criteria extraneous to legitimate means or ends. (Selznick
1969, 13, my emphasis)

The terms I have emphasized seem to indicate that a fully fleshed-out conception
of this kind will be in effect a complete theory of democracy and a complete
theory of what social ends and purposes are legitimate.
Is it possible to develop a more limited conception of arbitrariness? Selznicks
reference to "whimsical" action suggests one such conception: We expect legis-
lators and officials to act for reasons, not just on whim. But that is unlikely
to be of concern in the modern world, where most official action (even official
discretion) is in deadly earnest: The real concern is not about whether there
are reasons, but whether the reasons relied on are legitimate.
A more interesting conception of non-arbitrariness is suggested by Ronald
Dworkin's value of integrity - the idea that, even when legislation is the product
of deals and compromises struck between competing interests, it should still
express a coherent conception of justice (Dworkin 1986, 164ff .), "Coherent"
here means more than "non-contradictory"; we regard a law as coherent (even
though we may disagree with it) only if we can plausibly imagine it being held
by a person as his moral view. It is possible, for example, to imagine a com-
promise between opponents and supporters of abortion - abortion to be legal
only for women born in odd-numbered years - which would not satisfy this
test and which would therefore be arbitrary from a moral point of view. This
requirement of integrity may sound quite weak, particularly if it is applied
discretely to individual laws. But it has much stronger implications if it is taken
to require coherence among laws; consider, for example, the implications of
a requirement that each particular statute and decision cohere with the under-
lying principles which legitimate the operation of the legislature and the courts
(Dworkin 1986, 166).
Why is integrity, in this sense, important? Dworkin's answer is complicated,
but it has to do with the necessary conditions for political obligation. Dworkin
denies that the obligation to abide by the law is self-assumed on the social
contract model. A hypothetical contract argument may tell us what sort of social
order would be legitimate, but it cannot tell us why we have a n obligation to
obey or support it. (For the distinction, see Waldron 1987.) We need a theory
of what a community must be like if it is to be able to impose obligations on
people which they have not voluntarily assumed. Dworkin argues that a
community may legitimately impose obligations on its members only if its laws
can be viewed as a coherent moral standpoint with which in principle the citizens
84 Jeremy Waldron

can identify, and which they can view as an expression (even if they do not
think it the best expression) of fraternal concern for their fellow citizens (Dworkin
1986, 213-16).

V. Predictability and Autonomy

In modern jurisprudence, the rule of law is associated, not only with universality
and non-arbitrariness, but also with the demand for official action to be governed
by rules which are general, clear, well-known, relatively constant through time,
prospective, non-contradictory, and possible to comply with. Though logically
these requirements are independent of one another, they are united by the fact
that they serve the second of the main values outlined above: They establish
law as something predictable, something which individuals can reliably take
into account as they go about the planning of their lives. This is a requirement
which brings the rule of law ideal close to the nerve of liberal philosophy. In
this section, I shall trace the connection between known and settled laws and
the predictability liberals think necessary for individual autonomy; then, in the
sections that follow, I shall consider at length what a legal system must be like
if its rules and principles (I shall use rules to cover both unless it is important
to do otherwise) are to provide this basis of predictability for the lives of those
who are subject to it.
Why is it important that law be predictable? The liberal answer takes us back
to premises about the nature of the state and individual autonomy. We learn
the law partly because we want to predict how public officials will behave. The
way in which officials behave matters to us because individually and collectively
they are in a position to exercise the enormous force and power invested in
the state. They are in a position, therefore, to affect our lives and the conditions
under which we live them, whether we like it or not. Liberals have a distinctive
view about why we should be concerned about the prospect of this interference.
It matters because each individual is taken to have a life of his own to lead,
and it is thought important for him to determine its overall shape and orienta-
tion. Sometimes this is expressed in terms of a general interest in free action;
but usually the more complex value of autonomy is appealed to.
The ideal of autonomy has been formulated in many different ways. Rawls
expresses it by saying that a person may be regarded as a human life lived
according to a plan, and that an individual says who he is by describing his
purposes and causes, what he intends to do in his life. The unity of a person
is said to be the coherence and systematicity of these purposes (Rawls 1971,
408). Nozick (1974,49) talks about

a being able to formulate long-term plans for its life, able to consider and decide on
the basis of abstract principles or considerations it formulates to itself and hence not
merely the plaything of immediate stimuli, a being that limits its own behaviour in
accordance with some principles or picture it has of what an appropriate life is for itself
and others, and so on.
 The Rule of Law in Contemporary Liberal Theory 85

Raz, however, cautions against exaggerating this element of planning one's life.
The image of autonomy, he says, "is not that of the regimented, compulsive
person who decides when young what life to have and spends the rest of it living
it out according to plan" (Raz 1986, 370). Instead we should have a sense that
there is, for every person, an array of more or less important decisions through
time, each of which will contribute to the overall shape of his life (in his own
eyes and in the eyes of others), and that, at each of those points, he should
be in a position to make a choice on the basis of the view he then holds about
the shape he wants his life to have and the purposes he wants it to embody.
Now a commitment of this kind to autonomy does not necessarily entail a
hostility to state power. Most liberals believe that state power is necessary for
the protection of autonomy and perhaps also desirable for its positive promotion.
Moreover, there is a wide consensus among jurists that it is not the job of the
rule of law ideal to determine when or for what purposes state power should
be used; the rule of law does not amount to a complete theory of justice (Raz
1979, 211). But state power may make a difference to the circumstances under
which individual lives can be shaped and to the projects and aspirations that
can be realistically pursued and consummated. Liberals, therefore, take it as
a necessary condition of respect for autonomy that individuals should know
or be in a position to know how state power will affect their decision-making.

VI. Hayek versus Left-Liberalism

There is an important contrast between the Hayekian and what might crudely
be called the "left-liberal" view of autonomy and the rule of law. For Hayek,
the importance of what I have referred to as autonomy (he sticks with the term
"freedom") is captured in the contrast between X planning X s life and X s life
being controlled or planned by others. Freedom for a person is a matter of

how far in acting he can follow his own plans and intentions, to what extent the pattern
of his conduct is of his own design, directed toward ends for which he has been persistently
striving rather than toward necessities created by others in order to make him do what
they want. Whether he is free or not does not depend on his range of choice but on
whether he can expect to shape his course of action in accordance with his present
intentions, or whether somebody else has power so to manipulate the conditions as to
make him act according to that person's will rather than his own. (Hayek 1960, 13)

Almost all liberals believe this is important; but differences arise about the
importance to be attached to the phrases I have emphasized. Hayek seems to
take the view that the worst that can happen, so far as freedom is concerned, is
that one person's life is manipulated and controlled by another. Left-liberals may
take the view, however, that, though that is bad, it is no worse (or perhaps not
much worse) than a person's life not being planned or organized in accordance
with realistic purposes at all. As Raz puts it, though "autonomy is opposed to
a life of coerced choices," it also "contrasts with a life of no choices, or of drifting
86 Jeremy Wuldron

through life without ever exercising one's capacity to choose" (Raz 1986, 371).
The difference here can perhaps crudely be captured by the distinction between
"negative" and "positive" conceptions of autonomy (Taylor 1979).
Thus, for example, the left-liberal may agree that it is important for individual
autonomy that people be able to predict how state action will affect their lives;
otherwise they cannot make realistic decisions. But he will also think, for exactly
the sume reuson, that it is important for people to be educated about features
of the natural and social world that limit the purposes and projects that can
be realistically pursued. The Hayekian, by contrast, may not agree that this
further knowledge is so important. Ignorance of the law may leave us at the
mercy of the law-giver, whereas ignorance of the world and society doesn't
necessarily leave us at the mercy of anyone; it merely leaves us with a life that
is a shambles. That a person's life is at the mercy of another is a matter of
incomparably greater concern to the Hayekian than that his life is, for some
other reason, not autonomous in the liberal sense. And similar points may be
made about the importance of things such as economic security, culture, and
the provision of other collective goods for effective autonomy (see Raz 1979,
221; Raz 1986, Parts 3-5).

VII. Laws That It Is Possible to Obey

Some laws are not merely rules to govern official behaviour; they are also
presented as norms for the citizen-actions that are to be performed or refrained
from on pain of certain penalties. These are, most prominently, the rules of
criminal law, and also, in familiarly complicated senses, the rules of tort and
contract. In this area, the rule of law is often taken to require, not merely that
official sanctions should be predictable, but that they should be associated with
duties that it is reasonably possible for the citizen to fulfill. (This does not by
itself imply the further requirement that laws should be prospective; a retroactive
law cun be complied with provided it does not also require us to have obedience
to the law as the motive of our compliance.)
In morals, "ought implies can" follows fairly straightforwardly from the
prescriptivity of moral judgments: That a person cannot do X means that there
is no practical question to which the judgment "He ought to do X' could
plausibly be an answer. But laws that require the impossible may not be so
pointless: Their point may be to license the punishment of those who fall short
of the impossible standard rather than to guide their conduct. Of course, the
law in question must contain a directive to someone (e.g., the police) that can
be carried out, otherwise it is absurd. But there is nothing logically absurd about
the imposition of a penalty for an action that could not have been avoided.
As Hayek notes, we cannot say that the point of the possibility requirement
is that there must always be some route left open for the citizen to avoid the
impact of state action; otherwise the rule of law would prohibit things such
as universal conscription and capitation taxes (Hayek 1960,143). The rule of law
 The Rule of Law in Contemporary Liberal Theory 87

is perfectly consonant with the state imposing some cost or disadvantage on

everybody. What is important for autonomy is that people know what they
are up against, not that there should always be a way around any imposition
by the state.
To justify ought implies can in the law, we may have to go quite deeply
into liberal political philosophy. In recent years, the idea of the social contract
has been revived in political philosophy, notably in the work of Rawls (1971).
Contractarianism expresses the view, not only that the social order should,
in principle, be capable of commanding the consent of all those subject to it,
but also that it should be an order to which people are capable of conforming
their conduct voluntarily. The contracting parties are conceived to agree, not
merely to have these laws, but to abide b y these laws. This means that the laws
they are conceived to choose must be such that everyone could conform his
conduct to them voluntarily; in other words, the social order must be such that
it could be sustained without the use of force. (It does not follow that force
is dispensable even in the ideal liberal state; as Rawls (1971, 240) notes, even
if it is never used, a coercive apparatus may be necessary to solve problems
of assurance.) Trivially, if some of a social orders rules require the impossible,
it cannot be sustained by the voluntary action of the citizens. It is therefore,
in principle, not even susceptible to contractarian justification.
From this point of view, the important thing about the laws which are subject
to ought implies can is not that they are laws with punishments and sanctions
attached, but that they are the laws we are prepared to enforce. (We will stop
people killing if we can, not merely punish them for killing; whereas we will
tax people for smoking, but not stop them smoking.) The liberal position is
that if there are any actions which are not to be performed in society and whose
performance we are prepared to use force to prevent if necessary, then those
must be actions from which the people concerned are capable of refraining
voluntarily.
In this regard it is worth comparing the theories of John Rawls and Bruce
Ackerman (1980). Rawlss argument against utilitarianism turns on the fact that
it may make demands on peoples conduct which they will be unable to bring
themselves to fulfill. In deciding which sort of social order to sign up for, the
contractors must consider the strains of commitment: They cannot enter into
agreements that may have consequences they cannot accept. They will avoid
those that they can adhere to only with great difficulty (Rawls 1971, 176).
Ackerman, by contrast, gives his contractors the technology (ray-guns, force-
fields, razor-edged barbed wire) to enforce automatically whatever conclusions
they reach in their deliberations about justice. They do not need to consider
the strains of commitment or whether the rules they agree on could be voluntarily
complied with. For this reason, I think Ackermans work stands apart from the
liberal contractarian tradition.
88 Jeremy Waldron

VIII. Discretion and Procedural Justice

There is another aspect of the theory of justice associated with the predictability
requirement. This is the view that the social order should be organized on the
basis of procedural justice, rather than ad hoc decision-making. Another way
of putting it is to say that official action should be guided by rules of conduct
and not merely by orientation towards certain aims or goals (Lyons 1984a, 199).
Thus, for example, officials should not be briefed simply to do whatever is
conducive to prosperity or equality or socialist construction (or whatever the
goals of public policy may be); though the goals may be laudable and their
intentions honest, the exercise of their discretion does not provide an adequate
basis for predictability. To plan our lives, we may need to know, reasonably
far in advance, how the state can be relied on to behave in certain circumstances.
Such knowledge is in principle unavailable whenever state behavior depends
on some official's discretionary estimation of social costs and benefits at the time.
The requirement that officials should follow rules of conduct is connected
with the view that the social order should be a scheme of rights or entitlements.
One of the criticisms of utilitarian political morality is that it cannot provide a
basis for a scheme of rights that people can count on. For whenever social cir-
cumstances change, the underlying utilitarian goal may justify infringement of
the right (Lyons 1984b, 126ff.). Utilitarians, however, can answer this criticism
in two ways. If the integrity of expectationshas substantial utility over and above
the utility of what is expected (Bentham 1932, 111;Bentham 1952, 109), or if
political officials cannot be relied upon to make accurate estimations of marginal
social utility (Hare 1981), then more good may be done in sticking with a scheme
of rights whose existence is generally conducive to utility than in deviating from
it in cases where it appears that utility would be better promoted by some other
course of action. (Of course, it does not follow that rules and rights that this
sort of "indirect-utilitarianism" would come up with would be familiar or even
at tractive. )
In general, then, governing by rules is not incompatible with the pursuit of
social goals. John Rawls has contributed some confusion to this issue by arguing
that a well-ordered society should exhibit not merely procedural justice but pure
procedural justice (Rawls 1971, 85). A system is one of pure procedural justice
if there is no other criterion of a just outcome than that certain procedures or
rules of conduct have been followed. Some aspects of Rawls's conception (e.g.,
his principle of "offices open to all") have this character; but others, for example,
the "Difference Principle," do not. Rawls insists that, for practical purposes,
the Difference Principle should be applied to social institutions - to the design
of a scheme of rights and obligations which is then to run procedurally - rather
than to determine the burdens and benefits that individual people receive (Rawls
1971, 64, 88-89). Even so, the institutions are designed with a certain outcome
in mind (that social inequalities benefit the least advantaged), and that aim can in
principle be used as an independent criterion to evaluate the institutional output.
 The Rule of Law in Contemporary Liberal Theory 89

What Rawls should say, then, is that application of the Difference Principle
is a matter of "imperfect," not pure, procedural justice. (I believe it is this
confusion which has tricked Hayek into the otherwise bewildering claim (Hayek
1976, xiii, 100)that Rawls's approach to justice differs only verbally from his
own.)

IX. Nozick and the Failure of Proceduralism

The historical entitlement theory of justice sketched out in Nozick (1974) is an
example of a social order that exhibits pure procedural justice. Property is
justly distributed if and only if the initial acquisition of resources satisfied the
procedures specified in the principle of justice in acquisition and if subsequent
transfers of resource control from person to person have satisfied the procedures
specified in the principle of justice in transfer. There is no other way of evaluating
a distribution, according to Nozick (1974, 150ff.).
But it is worth noting that proceduralism is not sufficient for a social order
to satisfy the requirements of the rule of law. It must in addition be possible
to determine whether the procedures have been followed, and so to work out
what justice requires. The historical entitlement theory manifestly fails to satisfy
this condition in its application to any modern society. We can be as certain
as we are of anything that, on any plausible principles of acquisition and transfer,
the history of property holdings (say, in the United States) has been as much
a history of procedural injustice as of procedural justice. Some alleged modern
entitlements have a tainted pedigree, but we do not know which ones. And
there are good reasons to hold that the justice of an entitlement with an impec-
cable pedigree will be tainted by its coexistence with a discredited one (if
rectifying injustice involves, as Nozick suggests (1974, 152), a subjunctive
estimation of what would have happened if the injustice had not occurred).
Consequently, even somebody who accepts the moral force of Nozick's principles
has now no idea whatever of which property holdings they legitimate and which
they call in question. Historical entitlement cannot, therefore, form the principled
basis of a predictable social order for us.
Interestingly, the argument just sketched is exactly similar to John Locke's
fourth argument against the "Divine Right" of kings:

The great Question which in all Ages has disturbed Mankind, and brought on them the
greatest part of those Mischiefs which have ruin'd Cities, depopulated Countries, and
disordered the Peace of the World, has been, Not whether there be Power in the World,
nor whence it came, but who should have it. . . .For if this remain disputable, all the
rest will be to very little purpose. . . . (Locke 1960, 257; for "power" read "property
entitlements" )

Locke's opponent, Filmer, held an historical entitlement theory of kingship

(crudely, with Gods gift to Adam as a principle of acquisition, and primo-
geniture as a principle of transfer). But since there was no way of telling who was
90 Jeremy Waldron

Adam's present rightful heir, the theory provided no basis whatever for predictable
authority. To persist with the theory, in the absence of any way of "opera-
tionalizing" it, would be to undermine all certainty and stability in government
(Locke 1960,272). Since exactly the same is true of Nozicks theory of property
entitlement (grand on paper, but we have no way of determining who, according
to the theory, is now entitled to what), it could not possibly form the basis
for the "promulgated standing Laws" which a Lockean society requires (Locke
1960, 404).

X. Law versus Community

Liberals are sometimes accused of presenting society and all social relations as
though they were constituted primarily by law and by the rights created by
formal legal rules. Critics argue that, at the level of description, this misses the
informality and the implicit, maybe even essentially inarticulate; character of
many social relations. At a normative level, they claim it underestimates the
importance of community and constitutive affections in social life. These worries
are part of a wider critique of liberalism being worked out by those who are
called "the new communitarians" (e.g., Unger 1976; Sandel 1982,1984). Though
the rhetoric of communitarianism is often more appealing than its arguments
(Gutman 1985; Waldron 1988b), the nature of the critique indicates one way
in which the liberal emphasis on the procedural values associated with legality
can easily be misunderstood.
Those who believe in the rule of law need not believe that society and
community are primarily legal structures, and they need not believe that people
spend most or even much of their time worrying about legal rules or legal rights.
All they need to believe is that it is important for legal rules and rights to be
there, available in the background, as something people can fall back on if social
relations constituted on some other basis break down, or are, for whatever
reason, called into question. Thus, for example, we do not expect the partners
in a happy marriage to be preoccupied with the rules and the rights of matri-
monial law. We are likely to reject the Kantian view of marriage as a reciprocal
contract (Kant 1887, 110; cf. Hegel 1967, 58), viewing it rather as constituted
by love and ineffable trust. But we may nevertheless think it important that
there should be a body of matrimonial law, well known to the partners; for,
knowing that even the deepest relations can be fragile and vulnerable, the
partners may want to have some sense in the back of their minds where they
stand (Waldron 1988a).
Another way in which liberal concern about legality can be misunderstood
is in its apparent preoccupation with coercive law. Much of the argument so
far has focused around a concern that the individual should be able to predict
when powerful officials will intervene in his life, or when state action will wreck
or obstruct the plans he might otherwise make. But our view of law should
not be so negative. A body of impersonal law also provides a framework within
 The Rule of Law in Contemporary Liberal Theory 91

which people can organize their relations, co-ordinate their expectations, and take
new initiatives in the social world. After all, law includes not only primary rules of
conduct, but also secondary rules of legal change, and these provide the basis not
only for reform and legislation, but also for contracts, property transactions, the
setting up of companies, and so on (Hart 1961,27ff.). Though these can be partly
understood as (fragmentsof highly conditional) rules governing official behaviour,
they will be seen by citizens as ways in which they can reliably make arrangements
with strangers and even alter their position vis-P-vis the state. The benefits here
lie not just in predictability, but in the facilitation of arms-length dealing and the
evolution of new configurations in society (Smith 1976, 18; Ignatieff 1984).

XI. Certainty, Constancy and Lay Understanding of the Law

I said that it is important that knowledge of the law be available to the ordinary
citizen. But a number of the requirements traditionally associated with the rule
of law indicate that it is thought important for citizens themselves to have most
of the legal knowledge they need, and that it is not thought sufficient that the
knowledge be available from legal specialists. Thus, for example, we say that
laws should be simple rather than complex, clear rather than obscure, straight-
forward rather than technical, and fixed rather than continually changing (e.g.,
Fuller 1969, 49ff.). Now, of course, these are all matters of degree, and it is
true that extremes of obscurity, changeability, and so on would make even the
lawyer's task impossible. It is also true that no modern society can possibly
survive with a legal system whose rules are so fixed and clear as to make the
legal specialist redundant.
What we say about this will partly depend on our conception of autonomy.
Is autonomy just a matter of having control over a small number of very strategic
choices, or may it involve a person's control of his life through a large number
of decisions, great and small? If the former, then it might be reasonable to say
that knowledge of the law need only be available to the citizen through a
specialist; whereas if the latter is the case, it may be unreasonable to require
him to consult a lawyer every time the law may be an issue for his decision-
making. The conclusive consideration, however, is this: The citizen has got to
be in a position to know for himself what sorts of situations call for expert legal
advice and what sorts of situations he can reliably handle on the basis of his
own knowledge (Ackerman 1977, 97ff .; Waldron 1984, 331). That principle,
together with some sensitivity about the costs involved in frequent recourse
to a legal specialist, then imposes constraints on what the law should be like.
Its basic concepts and requirements must be familiar, simple, and reasonably
constant over time; and legal reform and innovation should not be such that
people continually lose their sense of what is a straightforward case and what
is a hard or complex case likely to involve some legal difficulty.
We might be able to take this one step further. We talk glibly about laws
being promulgated to citizens; but the fact is that most citizens do not have time
92 Jeremy Waldron

or ability to learn specifically legal principles (in any sense which distinguishes
them from broad principles of morality and fair play inculcated in normal
processes of socialization). Thus, it may be that the values protected by the
rule of law also require that the law should not, on the whole, make demands
on citizens which are radically dissonant from ordinary ways of thinking about
moral conduct, mine and thine, dispute resolution, reciprocity, and so on. The
demands of law and the processes of legal reasoning should not, on the whole,
be morally counter-intuitive. And the number of, so to speak, brute legal rules,
rules which could not in any way be arrived at by ordinary processes of moral
reasoning - such as the requirements that in Britain one drives on the left, or
that contracts transferring real property are unenforceable unless evidenced in
writing - should be small. (From a slightly different direction, similar conclusions
follow from the suggestion - increasingly popular in political philosophy (Rawls
1980; Walzer 1983) - that, as a matter of justice, the laws should keep faith
with established social meanings.)
At first sight, this looks like a rapprochement between the rule of law and
the natural law tradition; but it is not, for several reasons. First, no assumption
is made about the objective validity of what I have referred to as "ordinary
moral reasoning." It is not even assumed that this is the same from society to
society, though theorists of the rule of law should be more interested than they
are in the idea of ius gentiurn and in the fact that we don't on the whole think
it necessary to learn a whole lot of new legal rules in order to make reliable
predictions about how we will fare when we visit most other societies. Second,
what "ordinary moral reasoning" is and how people are socialized are as much
influenced by the law as the law is influenced by moral ideal. Third, this is
not a claim about what law is, but a suggestion of how a legal desiderandum
might possibly be developed.

XII. Judicial Decision-Making

These arguments have some implications for the way judges should approach
the problem of interpreting and applying the law. It is inevitable that the
situations in which judicial decision takes on greatest importance will be precisely
those in which the law is least settled and well-known. One is tempted to say
that the judge's first duty is primum non nocere - at least don't make matters
worst - so far as legal uncertainty is concerned. Certainly the judge should not
take it upon himself to exercise the sort of unprincipled goal-based discretion
that is excoriated by the ideal of the rule of law in relation to other officials.
It may be a mistake, however, to think that the judge serves the value of
predictability best by sticking as closely as possible to the ipsissima verba of the
statute he is interpreting and confining his opinion to strict verbal construction
rather than any wider consideration of principle. That is a lawyer's or a legal
technician's conception of certainty; but it may not contribute to predictability
so far as the ordinary citizen is concerned, for he is unlikely to be familiar either
 The Rule of Law in Contemporary Liberal Theory 93

with the exact words of the statute or with the precedential history of their
construction. Instead, the values associated with the rule of law seem to call
for an interpretive approach which locates the underlying principle of the statute
in relation to the wider array of familiar principles embodied in the law. A case
will illustrate what I mean. Recently in British Amusement Catering Trades
Association v. Westminster City Council (The Times, March 27, 1987), the
Court of Appeal held that a video amusement game (such a s "Space Invaders")
counts as "an exhibition of moving pictures" for the purposes of the Cinemato-
graph Act 1909, even though it may be just sitting in the corner of a bar or
cafe. The majority reached their conclusion by concentrating on the verbal
meaning of "exhibition" and "moving pictures." My suggestion is that they might
have reached a conclusion less likely to have defeated the expectations of the
ordinary citizen (or cafC owner) if they had asked themselves whether the reasons
it is important for licensing and regulating such as cinemas apply to premises
where video games are played. The familiar objection will be made that an
enquiry of this kind is evaluative, hence subjective, hence unpredictable: Indeed,
the majority held that that consideration should be left to the legislature.
But in fact such an approach is likely to be more congruent with the way the
ordinary citizen thinks about the case in trying to work out for himself whether
the Act applies; and its results may detract considerably less from genuine social
predictability than reliance on the exact meaning and technical construction of
terminology which most laymen may never have heard of.'

XIII. Justice and the Rule of Law

I take it that it is not necessary nowadays to argue for the proposition that the
rule of law, in the sense we have defined, is at most necessary, and certainly
not sufficient, for a free society and social order that is just. Laws may be
universal, known and settled, and congruent with local understandings, but
still barbaric and oppressive in their substance; I believe, for example, that much
of the Islamic law of Iran has these characteristics. But it may be worth finishing
with a few observations that complicate this familiar proposition.
There is, first, the point made by John Finnis and others that "a tyranny
devoted to pernicious ends has no self-sufficient reason to submit itself to the
discipline of operating consistently through the demanding processes of law"
given that the whole point of that discipline is respect for values such as
autonomy which a tyrant is likely to reject. Such a ruler could have, at best,
only tactical or superficial reasons for adhering to the rule of law (Finnis 1980,
273-74). The point can also be put the other way round. In an oppressive regime
which does respect the rule of law, there will be at least some values and
principles in the official culture to which the citizen can appeal in his complaints

The decision has since been reversed by the House of Lords. See British Amusement Catering
Trades Association u. Westminster City Council [1988]1 All E.R. 740.
94 Jeremy Waldron

about injustice, and some tensions which he can exploit to embarrass the regime.
Second, as a number of writers have suggested, the consistent enforcement of
the laws at least has the moral virtue of a pact of reciprocity between officials of
the state and those who are under their authority - "If you obey these laws, we
promise that for our part we can be relied upon to enforce and uphold them."
Something along these lines is suggested by Fuller (1969,39-40) and Finnis (1980,
273). The German jurist Jellinek wrote of the concept of a Xechtsstaat that "every
legal rule also constitutes a guarantee to the legal subjects that the state is itself
under an obligation for as long as the rule remains in force" (quoted in Aubert
1983,85). Of course, if the laws are substantively oppressive, this "reciprocity"
or "obligation" has all the virtue of the relationship between victim and gunman
when the latter scrupulously carries out his threat. Nevertheless, it prefigures in
at least a rudimentary form the sort of relationship that should obtain between
legislator and citizen.
Third, as both Fuller (1969)and Dworkin (1986)have argued from their different
perspectives, though compliance with ideals such as legality and integrity are by
no means sufficient for justice, they go some of the way to establishing that a legal
order makes some claim on our obedience. This is partly because respect for the
rule of law is a necessary condition for legitimacy and the imposition of obligation.
It is partly because the rule of law is focused on respect for the very values and
principles (freedom, autonomy) on which doubts about political obligation are
likely to be based. It is also partly because the rule of law throws into stark relief
all the various regimes that lack the virtues associated with it; a system that comes
close to satisfying the ideal may make a reasonable claim on our support if there
is a real danger that disobedience and protest against its (admitted) injustices and
imperfections may precipitate a collapse into a type of regime that has no respect
for legality whatsoever (Rawls 1971, 350ff.).
The final point concerns the internal relation between justice and the rule of law.
Though the rule of law is only a necessary condition for justice, the relation is not
a contingent one - it is more like the relation of part to whole. Legality captures
part of what is needed if individual autonomy is to be respected, and it may well
be that a complete theory of respect for autonomy in a social context just is a theory
of justice. In addition, one of the most important functions of the rule of law is
to set limits to what we may do, as a society, to reduce injustice. Though ad hoc
decrees extemporarily administered might offer effective ways of eliminating
certain forms of oppression, they are ruled out by this principle as incompatible
with respect for autonomy. In this way, the rule of law requires us to prefigure
in our means some of the main features of the just society we are striving towards.
Since its function is to articulate ends into means in this complicated way, we
should beware of any account of the rule of law which distinguishes it too glibly
from other ideals that are valued in liberal political theory.
School of Law (Boalt Hall)
University of California
Berkeley, CA 94720, U.S.A.
 The Rule of Law in C o n t e m p o r a r y Liberal T h e o r y 95

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