Form of Modern Legal Orders
Form of Modern Legal Orders
Abstract and Keywords
Evidently, legal orders has evolved in such a way that although some laws retain a basis of general standards like early common law, others rely on the rules that are being acted out by legislature. A debate exists, however, about the right balance between an open discretion and detailed rules that are easy for both the law-makers and law-abiders to understand. Various sets of social relations help provide the normative structure of law as some rules like those concerning contract and property possess clarity while the rules concerning the regulation of certain transactions adapt more discretion. In conducting a careful study of the normative structure of law, one must take into consideration the social formations involved. Legal theory and law-and-society are different because of the lack of qualities of a fully modern system.
13.1 Distinctiveness of Modern Legal Orders
Societies express social relations in laws whose forms vary. A glance at legal systems at different points in history shows that some retain a customary basis of general standards of the kind familiar to the Lozi, the Kapauku, and the Tiv, as well as the early common law; others rely on detailed rules enacted by a legislature. In the thirteenth century, the idea that laws should be stated in clear and simple rules, so that those subject to them know what to expect and how to arrange their affairs, inspired the Republic of Siena to print its Constitution in Italian rather than Latin, a notion previously unheard of; and just to be sure it did so in very large letters.1 A study of the administrative courts of Poland shows how judges cling to the formalist idea that they are simply the mouthpieces of the law, law meaning the formal rules of the civil and administrative codes, and are reluctant to consider the more open standards of the Polish Constitution and European Union law, even though obligated to do so.2 The debate as to the right balance between detailed rules and open discretion has never been concluded and probably never will, with some law-makers still seeking the elusive goal of a heaven of rules, others taking refuge in broad discretion. The debate may anyhow have been overtaken by the notion that enacted law, and the powers granted by it, are subject to a higher layer of general standards of the very kind the Polish judges cannot steel themselves to apply. The Parliament at Westminster and officials empowered by it, long used to unlimited sovereignty, are coming to terms with the force of standards of the European Convention on Human Rights and the treaties and judicial decisions of the European Union. Legal systems accustomed to a single or dual source of law-making are suddenly faced with rules and standards from multiple sources.
(p.243) Different sets of social relations give some guidance as to the normative structure of law, with those relating to property and contract naturally encouraging clear-line rules, while the more positively purposive provision of goods and services, or regulation of activities, seem to fit a more standard-based and discretionary approach. Closer study soon shows so many exceptions in practice that it is hard to sustain anything but the weakest presumption one way or the other. The diversity of the normative structure of law is matched by that of the institutions and organizations responsible for it, with some embedded in a complex arrangement of courts, officials, and lawyers, others lacking all but the most basic distinction between legal organizations and other social formations. Law and legal systems plainly appear in many shapes and forms, offering more or less guidance, being more or less distinct from other social formations, standards, and arrangements.
At the same time, the form or shape of modern legal orders is distinctive and different, not only from traditional societies based on custom, but also from those that, although quite developed, lack the qualities of a fully modern system. On this matter, legal theory and law-and-society diverge; whereas Hart followed the tradition of legal theory in describing the qualities shared by all relatively mature legal systems, those more directly concerned with a social account of law have narrowed the focus to modern legal orders. What matters is not the name (and modern is not necessarily the best) but the fact that some legal orders, those designated as modern, have qualities that others lack. According to Durkheim, modern social relations consist in the division of labour and the fragmentation it causes, with modern law expressing those relations. Much of Weber’s work was directed at developing the idea of rational legal authority as the ideal type of a modern legal order, and the social conditions conducive to it.3 Bureaucratic law is proposed by Roberto Unger as a stage some societies reach with only a few going on to become legal orders in their fully developed sense,4 while according to P. Nonet and P. Selznick responsive law is suitable for a genuinely modern society.5 These accounts and others raise issues about the nature of modern law, the claim being in each case that certain features may be generalized to form a distinct concept of a modern legal order. It is not my present purpose to analyze (p.244) these views systematically, but instead to draw on them in developing a better understanding of the form law takes in modern legal orders.
13.2 Social Relations in Modern Legal Orders
The configuration of social relations expressed in law leads directly to the foundations of modern legal orders. Social relations are revealed by unravelling laws as shown at various points in this book; it is those sets of social relations that both make modern legal orders distinctive and separate them from others. The configurations in any legal orders are: between citizens as private parties, between citizens and officials nationally (and internationally), among officials nationally (and internationally).6 What then is distinctive about these sets of social relations in modern legal orders? The main background factor is a high level of regard on the part of both citizens and officials for the authority of law, a factor that at once separates modern orders from other systems where it is lacking. From this background, the special features of social relations emerge. In relations between citizens, freedom to enter into arrangements and transactions is prized; once entered into, their security and stability is expected. Relations between citizens and officials have several aspects, the first and most important being that officials hold authority in accordance with the ascending model, meaning that authority originates in the people rather than descends from on high. Secondly, officials are expected to provide the legal framework for security and stability of private arrangements among citizens. Thirdly, officials are empowered actively to direct society in order to achieve social goods, either by their positive provision or by restricting citizens’ activities. Fourthly, officials hold power on trust, are obligated to act according to the terms of trust, and are accountable for their actions. Fifthly, the terms of trust include the obligation to maintain the legal order. Regarding the international sphere, we may be brief: state officials have duties created by the international order, while the status of citizens is beginning to gain recognition. A comparison of legal orders according to these criteria shows a qualitative distinction between those that more-or-less measure up and those that fall well short. Measuring up is, of course, a matter of degree and, in that sense, the notion of modern legal orders could be considered an ideal type; at the same time, a (p.245) comparison of the legal order of the former Soviet Union with that of the United Kingdom shows the qualitative differences.
From this account, two questions follow: what kind of legal order is needed to express and preserve the sets of social relations and the expectations they create? And what social conditions are needed to sustain it. The answer to the first question, which this chapter addresses, lies in examining the legal structure commonly found in modern legal orders, and then considering how it is linked to and protective of social relations. This divides into three separate but related issues: the normative structure, the institutional and organizational arrangements, and the ideas supporting them. The social conditions that sustain this legal structure is the subject of the next chapter.
13.3 Normative Structure of Modern Legal Orders
According to Hart’s salient fact of social life, a mature legal system normally provides adequate rules for guiding actions and resolving disputes, where the rules are clear and certain enough for the purpose. We have examined the foundations on which legal rules are separated from other social rules to enable this claim to be made: the move from a pre-legal to a legal system marked by the adoption of mechanisms for adjudication, certainty, and changing the law, together with the grouping of officials as legislators, administrators, and courts. As law becomes relatively autonomous, as it separates itself from moral and social norms, it develops its own method of reasoning and encourages the creation of a legal profession as its guardians as well as its practitioners. We have noted the difficulties implicit in this account: the contextual contingencies of rules and the issues they raise; the hidden ambiguities in moving among clear-line, standard-based, and discretionary rules; and the straining of language in viewing all mature legal orders as rule-based. The one feature of modern legal orders that stands out above others is just how varied its normative structure is as between the three kinds of rules, sometimes with clear rules, at other times heavily reliant on general standards, and with lashings of discretion thrown in. Legislators have a choice as to how they structure the law governing a matter, and in choosing are swayed by other considerations besides the need for clear and certain rules. Administrators responsible for implementing the law normally find their powers and duties expressed partly in clear rules, partly as general standards, and partly as discretion, while the position of the judge is not very (p.246) different. From the citizen’s point of view, clear guidance is available in some matters, while others depend on how an official interprets a general standard or uses discretion.
If the ideal is clear-line rules, then far from being a heaven of rules, modern legal orders barely reach limbo. Hart’s salient fact of social life is better understood in the shadow of Weber, who was less concerned to describe municipal legal orders than to identify an ideal type of law characteristic of modern societies. For ‘ideal type’, one could substitute the possibly more familiar notion of a central or focal case, for each expresses a theoretical model informed but not necessarily wholly reproduced by practice. Weber sought to capture the essence of modern law in the notion of legal rational authority as opposed to authority based on charisma or tradition, arguing that systems of domination strive to cultivate a belief in their legitimacy.7 Rational legal authority gains legitimacy by acceptance of the legality of enacted rules and the right of officials to issue them.8 Rational legal authority divides into formal and substantive law, each being a form of law competing with the other for prominence. The essence of the distinction is that formality is the expression of law in tightly constructed rules, while substantive law is based on general standards linking law to values. Formalism, according to Weber, enables law ‘to operate like a technically rational machine’,9 whereas the law is substantive when it is based directly on ‘expediential and ethical goals’ to which direct recourse should be made in its application.10 Formal legal authority reaches its purest form in bureaucratic organizations where the authority of each official is specified by rules. Each form of law is the product of social forces, notable in western societies, producing a level of legal formality not found elsewhere. The revival of interest in Roman Law in medieval Europe, the development of Canon Law and its application across the Continent, the emergence of secular states with their need to govern through centralized bureaucracies, and the growth of free markets are among the factors that explain the formalization of law in western Europe. Weber claims that European societies and their western offspring developed a unique level of legal formality compared with other societies. Progress is not only one way since tendencies towards substantive rationality pull in the opposite direction. Weber notes that, although the Roman Catholic Church made an important contribution to the formalization of law, the tendency within it to match law to moral standards was a powerful (p.247) countervailing force. The concerns within modern law for a social law based on notions of justice and human dignity, to which might now be added human rights, pose similar threats to its formality.11
Although aspects of Weber’s account merit closer scrutiny than is possible here, his main point emerges plainly: the characteristic form of law in modern societies is rational legal authority, within which there is interplay between its formal and its substantive aspects. Here Hart and Weber are united in their concern to show that the distinctiveness of municipal law (for Hart) and modern law (for Weber) lies in its relative formality, its relative detachment from other social forces, and its tendency to comprehensiveness. Both are, in their own ways, endeavouring to formulate the central case of law, the full unfolding of a legal order. As important as both are in this endeavour, their sketchy outline should be made more specific in two ways. One concerns the interplay between rules, standards, and discretion, for here what is implicit in both should be drawn out more fully. Discretionary powers in the hands of officials primarily (and private entities) are such a common feature of modern legal orders that they can neither be accommodated as an exception to the rule of rules, nor adequately provided for in a notion of formal law. Discretionary authority, in the sense more fully explained in 15.6 but briefly expressed as the authority to decide and act in the relative absence of directions as to how to decide and act, is as central to the character of a modern legal order as rules or standards. And it is so, because we know that for officials to provide the social goods which the people expect discretion is necessary. Discretion is a central and positive feature of a modern legal order, not a corruption of or deviation from the ideal legal form.
The other addition stems from the need to move beyond the image of law as a single layer of rules – law as unilayered – to one in which law is multilayered. That means, in a given context, the presence of two or more layers of rules and standards, often deriving from different sources, all of which have some bearing on decisions and actions. Discretion is a simple and striking example: one set of rules (the statute) confers discretion and defines its scope; another set (the common law) places constraints on how the discretion may be used; while a third set consisting of several potential sources (the Constitution, European Union law, the European Convention on Human Rights, or other international covenants) adds another layer of direction and constraint. The multilayering of law is not (p.248) unique to modern legal orders, but it has come to have such prominence, and to be the source of such high expectations, that it must be granted the status of a distinctive aspect.
The tension within this normative structure is plain: enacted law and the delegation of authority to officials are necessary to achieve the social goods expected in modern societies; at the same time, extensive legislative power is dangerous and a threat to other legitimate expectations arising from the bond of trust between citizens and officials. The resolution is equally plain: legislative authority and its delegation are made subject to a range of standards deriving from multiple sources, some created by the legislature, others deriving from elsewhere. An accurate image of modern legal orders is not then one of unilayered rules conferring powers and imposing duties, but instead one of rules, standards, and discretion emanating from several sources, with different points and purposes, intersecting and influencing each other in various ways. In order to capture this form of a legal order we must reassemble the components: rules in the sense of clear-line rules still occupy a central place, but instead of being the ideal to seek and from which departure is deemed a failure, we now see that legal contexts are constituted differently. They are now constituted by combinations of clear-line rules, standards, and discretion, conferring powers and imposing duties, some offering direction in deciding and acting, others placing constraints on how decisions are made and what is decided. The first test of legitimacy is whether there is rule-based authority for what is done and whether the right rule has been applied. That is now part of a fuller, more diverse, and rather subtle sense of legitimacy. Instead of the test being whether there is a single rule to justify the decision, the test now is whether the decision has been made in a way that is justifiable according to the prevailing web of rules, standards, and discretions. Where discretion is conferred, its limits are set by rules and its exercise is constrained by standards. Legitimacy is less precise than simply applying a rule; it is more complex and it naturally allows a prominent place to the contextual contingencies. It has the complexity of modern art rather than the clear lines of the classical; it is, however, an accurate portrayal of the normative structure of modern legal orders.12
(p.249) 13.4 Matching Normative Structure and Social Relations
We have two ideas to draw together. One is that modern legal orders express distinctive sets of social relations, the other that the normative structure is complex and diverse, building on, but going beyond, the idea of rules. The question is: how do the two fit together? In relations between citizens as expressed in private arrangements and transactions, where law’s value lies in facilitating and making them secure, clear-line rules are likely to be prominent, with some recourse being had to standard-based rules. To the extent that entering into transactions involves officials, registering a company or partnership for instance, elements of discretion are inevitable but moderate. In making transactions secure, where officials have a fuller role in providing and implementing remedies, the concern for predictability and stability would normally best be met by clear and certain rules, subject again to standards and discretion. Where standards and discretion occur, courts and other officials are expected to reduce uncertainties by formulating guidelines and developing precedents. The position is similar but slightly different in relation to criminal law and civil wrongs, where duties are imposed on citizens and officials to respect the person and property of others. Duties that reflect social norms – reasonableness, negligence, provocation, and dishonesty, for instance – are often expressed in standard-based rather than clear-line rules, allowing police and prosecutors, courts and juries, to draw on well-understood notions. Where the duties of criminal law or tort are not based on social norms but artificially created by enactment, a higher level of rules would be expected. At the same time, since the criminal law, in particular, has become a positive instrument of social control in modern societies, creating crimes artificially and without roots in society, the resort to standards and discretion rather than clear rules has advantages.
The normative structure of modern societies is most visible in relations between citizens and officials. Laws distributing social goods have provoked debate as to their appropriate form. Their aim being to achieve social ends, such as the relief of poverty, the rehabilitation of offenders, and the creation of a healthy and well-educated society, a natural inclination towards general standards and generous discretion is predictable. The need to distribute scarce resources strengthens the inclination. Since the goods distributed are among the most essential, a countervailing pressure towards rights and rules is also predictable. The (p.250) incommensurability of the two, and tension between them, reflects uncertainty in the underlying social relations and the most apt legal expression of them, an uncertainty that modern societies have not resolved. Regulatory laws raise a different set of issues: they require the restriction of otherwise legitimate private activities in order to attain positive social goods. Again, modern societies have not resolved at the level of social relations tensions between the two; the need for a clear and predictable legal structure, as a natural expectation where private activities are at stake, is offset by the purpose of regulation being to achieve social goods, such as safe working conditions, equal opportunities, and the protection of shareholders. The usual outcome is once again a variable legal structure, with shifting combinations of rules, standards, and discretion. One advantage of more open legal structures dominated by standards and discretion is that negotiation and accommodation between officials and private parties is made easier.
These two cases illustrate the character of the legal structure sketched above. Both show its shifting nature as a mixture of clear-line rules, standards, and discretion. In displaying the uncertainties and tensions in underlying social relations, the two cases show why the legal structure has that form, and why, for all its contradictions and unevenness, it is the standard normative form of modern legal orders. We also see how purposive action delegated to officials for the pursuit of social goods needs the relative freedom of discretion rather than the close direction of rules. That freedom, if left unrestrained, would lead down routes in conflict with the social relations between citizens and officials. Their maintenance relies on discretion being guided and restrained by standards deriving from the multiple sources described above.
13.5 Support of Officials
It is a paradox that officials grouped together in a variety of governmental organizations are necessary for the viability of a modern legal order, and yet also pose its greatest threat. The central place of officials in sustaining a legal system is made plain by both Hart and Weber for reasons that have been explained and need not be repeated except in the briefest terms.13 For Hart, their role is in accepting the rule of recognition and then having authority to make new laws, to give authoritative rulings, and to apply the law. Their importance for Weber was not dissimilar, although (p.251) his emphasis fell on the capacity of organizations to implement effectively the policies of government. To these features I have proposed the addition of two more. One is the tendency of organizations of officials to develop an institutional character of conventions and understandings, formed partly from its legal environment and partly from other factors both internal and external. The result is a social formation that tends to detach itself from other formations and to develop a distinctive character, a tendency depicted in the notion of autopoeisis. The significance of auto-poeisis is that officials act from within an institutional setting and are influenced by it. The other addition is that modern legal orders are made possible only by self-restraint on the part of officials, on their accepting restrictions on the range of their powers and the manner of their use. The basis for restraint is the social relationship between citizens and officials, according to which authority ascends from the citizens, is held on trust, and is to be used according to acceptable standards. The restraints are self-imposed and self-policing, for who is there after all to control the controllers or regulate the regulators?
The paradox is most stark in modern legal orders: on the one hand there is a commitment to the active pursuit of positive social goals, while on the other hand officials must act under restraints which are more than mere irritations, but confront the natural dynamics of government organizations, and are likely to be perceived as interference. The relationship between the two is asymmetrical: bureaucratic organizations are powerful, self-restraint weak. How, then, do officials resist the temptation of converting powers into licence and following the natural sway of bureaucratic organizations? The hope that a question so basic to contemporary societies should have been well considered is disappointed, so that instead of being able to draw on a bank of understanding, I propose three ideas that need to be studied further, but which open up promising lines of enquiry. The first, introduced in 7.7, concerns the normative structure: the point being that the creation of rule-based and standard-based contexts, itself provides officials with the basis for acting, justifying their actions, and evaluating those of others. Both actions and evaluations are depersonalized and assume a sense of disinterested detachment, where the issue is whether an action has been taken in accordance with the prevailing rules and standards. A link can be seen between this and the idea introduced in chapter 11 that, in its pristine sense, the function of law is to constitute the legal order, so that anyone entering it has a basis for action and evaluation of action. Law, in short, creates its own criteria as to which actions are legitimate and which are not.
(p.252) Important as that process is, it is not enough, for we do not yet have a link between officials and the normative structure of modern law. Here we encounter a second idea: the link is constituted by officials accepting the normative structure as binding in the way previously discussed. The key to acceptance is not the solitary official trying to form suitable attitudes to the law, a figure whose model would be Dworkin’s Herculean judge.14 The key and an alternative image is that officials belong to organizations whose social spheres of conventions and understandings include commitments to the authority of the law. They derive their perceptions and norms principally from within their organizations in the manner of and subject to the various qualifications described previously. Social spheres provide more than an initial set of understandings and conventions; by being the constituent parts of a continuing social entity, they constantly reinforce attitudes, while being strengthened by the very fact that officials in practice act according to them. Scope for adjustment and change is not eliminated, although organizations tend to build social spheres of high density, so that conventions and understandings adopted and internalized exert strong influence on their members and erect barriers against easy adjustment.
The normative structure of modern legal orders is adopted and internalized within the social spheres of government organizations, influencing officials’ attitudes and providing them with a legitimate basis for upholding the legal structure as a matter of course, as if that were the natural order of things. The description has, to some extent, been over-simplified in order to show the force of social spheres and organizations; the strength of officials’ commitment to the legal order varies, other factors compete, and organizations differ in the degree of influence they exert over their members. Nevertheless the key to understanding how officials exercise self-restraint, in accepting and acting in line with a fragile legal order, is found within their organizations.
Organizational pluralism is the third factor in considering the role of officials in sustaining modern legal orders. The network of officials needed to perform the tasks of modern government is extensive and diverse, covering legislative and administrative bodies, courts and other supervisory authorities, and a range of semi-governmental and non-governmental entities. Once organizations reach a level of general acceptance of the legal order, they become mutually reinforcing in maintaining it. Just as individual officials are supported by their own organizations in (p.253) their attitudes, similarly each organization finds support in belonging to a network whose members share a commitment to the legal order. Mutual support is expressed in various ways, in the co-operative relationships among organizations, the overlap of their activities, and their crosschecking and cross-balancing roles. Organizations in a modern legal order participate in a macro-social sphere which provides shared conventions and understandings running parallel to those at a micro-level.
The relations among organizations and the degree of influence exerted by their shared social spheres are matters awaiting fuller examination. Courts, as one set of organizations, have a distinctive and definitive role in both setting standards and providing leadership to other organizations. Their role as judicial bodies is unique in having the final say in interpreting the law, a matter given added importance where law is multi-layered and general standards prominent. Courts are expected to be independent of other organizations, whether public or private, not because adjudication is, simply speaking, the law. The reason is that lack of independence would prevent the courts being even-handed in their treatment of other officials and organizations, the idea being that the faithful upholding of the law by courts reinforces law’s authority throughout society. We do not know with any certainty whether this is true, nor whether the courts are influential in reinforcing the commitment of other officials and organizations to law’s authority, since empirical evidence is both limited and inconclusive. The post-communist societies of Eastern Europe have struggled to create strong and independent courts, only to discover that administrative agencies and government departments are still anchored in attitudes and practices from the past. Courts may over time have a significant role in changing such attitudes and in encouraging a high level of acceptance of the legal order by officials. The most that can safely be said is that the self-restraint of officials is at least partly dependent on the mutual reinforcement of government organizations, and probably non-government ones as well. It is likely that, within the process of mutual reinforcement, courts have an important place, although that must remain somewhat speculative until more evidence is available.
13.6 Supporting Ideals: The Rule of Law
We now have an account of the normative structure and how officials support it; the third aspect of modern legal orders is the set of ideas on which it is based. This is loosely described as the rule of law which has several meanings, some based on the innate qualities of rules, others (p.254) linking law to ideas of liberty, democracy, and rights. Rather than adding to the numerous accounts already available, the object here is to identify the set of ideas that are implicit in modern legal orders, implicit in the sense that they guide the actions of officials and citizens, normally by being adopted in their social spheres; also in the sense that in explaining and justifying actions reference would be made to them. These ideas have their origin in the rule of law, which has the following qualities: first, legal contexts are defined by, infused with, and constrained by legal rules and standards; secondly, certain qualities are built into the rules; and thirdly, the rules are applied by officials according to certain conditions.
According to the first quality, legal contexts, especially those involving officials, are characteristically created by rules conferring powers to take certain kinds of actions, while at the same time limiting their nature and range. Rules both confer powers and limit them, the limits being both procedural and substantive. Officials have authority only if the law confers it, and have no authority other than that so conferred. This simple idea is fundamental to a modern legal order and distinguishes it from those in which officials do as they like, as the party decrees, or as special interests demand. In the early days of post-communism, students from central and eastern Europe, who were raised under communism, when studying western legal ideas, found this to be so different from the role of officials to which they were accustomed that it was almost impossible to grasp. Having stated the general principle, we should enter some caveats and project the rule of law on to a modern legal order. Rules do not mean Weber’s formal rules, nor are they confined to Hart’s salient fact of social life; instead rules mean combinations of clear-line, standard-based, and discretionary rules, intersecting, overlapping, and sometimes competing. Rules are not interpreted and applied by mechanical means, or even by simply applying the text as the Polish judges and most other judges from that region believe. Instead, rules and standards have their own social world where contextual contingencies come into play and exert their influence. Legal contexts are infused with multiple layers of rules and standards deriving from several sources and exerting varying degrees of influence. For all its complexities, contingencies, and avenues of escape, this idea of legality persists as the foundation of a modern legal order.15
Accounts of the rule of law draw a distinction between rule by law and rule of law, the first connoting nothing more than using rules (or something (p.255) similar to rules), the second requiring that the rules have certain qualities. According to this idea, a sovereign body could use law to rule just in the sense that decrees are issued without regard for notions of generality, autonomy, or equality. Roberto Unger suggests that, at some point in some societies, legislation progresses from being ‘public and positive’ to being ‘general and autonomous’.16 Generality means the use of general categories and concepts that apply to all who come within their terms, the contrast being with laws applying to some but not others, or are ad hominem, or deal with only some cases within a wider class. Autonomy means that laws are applied according to their terms without reference to other beliefs, rules, or values. Equality of treatment is not always recognized as implicit in the rule of law, but a moment’s reflection shows that a rule, couched in general terms and faithfully applied, imports the limited sense of equal treatment that all whose circumstances come within the rule will be treated in the same way. It is equality in a limited sense because it says nothing about the content of the law, so that the line between the two is bound to be uncertain and unstable. Equality before the law could be the stimulus for groups to claim that formal equality without substantive equality lacks merit, but we need not pursue the issue here. A related but quite different aspect of equality arises when the question is asked: who is subject to the law? King James I’s contention that he could not be subject to the law since it was his law, has long been overtaken by the notion that all are subject to the law, including, with few exceptions, the organs of government.17
These ideas are implicit in modern legal orders. The values of generality and equality are taken for granted, with the rider that both are relative notions so that what is general or equal to one may appear to be particular and unequal to another. Both concepts are, to some degree, artificial, since in cases of contention their evaluation depends on the (probably unexpressed) substantive view as to what constitutes generality or equality. Clear-line rules at first seem natural allies of both, indeed are immanent in the very nature of a rule; however, it is not hard to find rules aimed at particular cases. The fact that standard-based rules, such as procedural fairness or proportionality, are open-textured does not prevent their being general or those subject to them being treated equally. The standard of procedural fairness applies generally to all administrative actions, (p.256) even though precisely what is required, and therefore what constitutes equal treatment, varies according to the circumstances. The normal expectation is that, through interpretation and experience, abstract standards will be made more precise by rendering them into rules and guidelines, and, in this way, enhancing both generality and equality. The prevalence of discretion in modern legal orders poses difficulties for ideas of generality, for the point of discretion is to deal with the particular case as seems most fit. However, ideas of generality and equality have deep social roots. Sentencing and parole practices, which traditionally are highly discretionary, fell into disrepute because they violated basic ideas of equal treatment. The over-reaction in favour of almost mechanical rules removed some inequalities, but spawned a host of new ones, an experience shared by the British social security system when it tried to remove discretion by rules. It may be ironical, but discretion properly used facilitates the reaching of a higher level of real equality and generality than rules or standards; the trouble is the risks are high. For that reason, a rough balance of rules, standards, and discretion is common; and it is probably the safest way of achieving a reasonable level of equality and generality while, at the same time, realizing the social goods for which power was given in the first place. Finally, equality in the sense of all being subject to law has special importance in modern legal orders, both as a condition of power being granted to officials, and as a mechanism for holding them accountable for its use.
The application of legal rules according to their terms, often referred to as its autonomy, is the final aspect of the ideas implicit in modern legal orders. There are two main ideas: officials decide and act according to the terms of the rules, and in so acting they respect the constraints on their powers. This is the correlative of the first idea that law confers, defines, and limits the authority of officials. That decisions should be made according to the rules and standards of law is as fundamental as its counterpart that officials have only the powers given by the law. To grasp its point in modern legal orders, we have first to expunge the image of formal rules being mechanically applied, and plant in its stead the image of a complex of rules, standards, and discretion depicted earlier. Account then has to be taken of contextual contingencies and the scope they unlock for variable interpretations; account also has to be taken of the fact that legal designs can be incomplete, internally inconsistent, and impossible to apply. A third matter to note here for fuller explanation in chapter 16.2 is this: the extent to which officials have authorized discretion not to apply the law is unresolved, although they often assume the (p.257) right to do so. Despite this armoury of qualifications, in whose wake the idea of law’s autonomy might appear in tatters, the idea remains intact that law is a recognizable social formation that all are obligated to take seriously. Every legal arena is marked by a legal design whose existence is recognized; each creates a legal environment in which citizens and officials have to meet and deal with that design; and each interacts with the fuller social environment around it. Officials know they have to account for their actions by showing that they have entered into this environment and tried to make sense of it. With regard to the second idea – that the application of law is constrained by standards – we can be brief: enough has been said to make plain that even the widest discretion, the most purposive grant of authority, has constraints on its use, some stemming from the original grant of authority, others from those multiple sources displayed earlier. Compliance with these standards is as important to the legitimacy of authority as respect for the terms of the empowering statute, which signifies another gap between legal orders that are modern and those that are not.
A question Luhmann asks but never answers is: what are the conditions sustaining law as a social system? Without attempting to answer his question, we should consider a slightly different one: what are the social conditions that are conducive to modern legal orders? A preliminary foray into that issue is the subject of the next chapter. A prior matter, and the note on which to end this chapter, is to mark the more visible instabilities in the conception of modern law whose elements have just been described. They revolve around three axes: the risks of enacted law, organizational rebellion, and the collapse of ideals. Since modern legal orders turn on these axes, change or disruption could jeopardize their survival.
Enacted law’s empire
As customary law has waned in modern societies, enacted law is in the ascendancy. Enacted law means mainly laws made by the deliberate act of officials, normally in order to achieve specific social goals. The primary form is legislation made by parliament or similar bodies, with administrative regulations and judicial decisions having secondary but still major significance. In modern legal orders, including those of the common law tradition, enacted law is the main source of law, affecting all subject (p.258) matters from private transactions to governmental regulation. The making of enacted law is sometimes motivated by the concern to render into law existing practices and social norms; at other times it creates law in otherwise empty spheres; while in others still it seeks to modify or redirect social practices and norms. Considering how much enacted law there is and how important it has become, its provenance is worth considering. The simplest explanation for its rise is that law is regarded as an instrument by which governments advance their political goals. At their most crude, laws are no more than the expression of a government’s will, which may be the expression of disinterested concern for the common good, but it is just as likely to be capricious, misdirected, or captured by special interests. Since modern societies are normally democratic, legislation may be justified as expressing the will of the people acting through their elected representatives, and pursuing social goals for the common good. Despite the restrictions imposed by constitutions and bills of rights, legislators retain extensive law-making authority. Our interest here is not in the substance of that authority but in the form of laws emanating from it. The reality is that legislative bodies have discretion largely unfettered as to the form of their decrees. Clear-line rules of general application are one form, but legislative decrees are just as likely to be couched in the language of purposes and standards, or left to the discretion of officials. History gives little guidance, since it is only relatively recently that standards, such as the rule of law or due process, have been invoked to define the parameters of law’s formal qualities. As constraints they are weak, so that enacted law as the expression of legislative authority is apt to take whatever form the enacting body gives it.
The character of enacted law is the product of its origins which lie in the authority of the head of a household. The head of the household, according to Weber, wields a patrimonial authority over his household that is personal and, subject only to recognized traditions, practically absolute. Family is extended to include kin, retainers, slaves, and employees. Of a fourteenth century Tuscan merchant it is written: ‘Servants and children alike were subject, in law, to the podestas puniendi of the head of the family; they could be beaten and starved and even sent to prison at his caprice’.18 The expression of authority is as likely to be in the form of orders addressed to one or other member of the household, as a general rule applying to all. Patrimonial authority is expressed in numerous ways – as rules, orders, ad hoc decisions – according to the needs of the (p.259) household. Some households become powerful over time and emerge as political authorities, extending beyond kith and kin, but retaining the same form of patrimonial authority. The evolution of kingly authority in England illustrates the point. The authority of both old English and medieval Norman kings was organized around the king’s household. Authority was personal and absolute, subject only to accepted traditions and the bounds of loyalty. The three main functions of government, legislative, executive, and judicial, were the personal prerogatives of the king, while all authority held by members of the king’s household were held in his name and at his pleasure. As one scholar described it: ‘At the court everything centred around the king’s person. In him all power resided, though at times he might share it with certain members of his immediate family.’19 Even as offices became separated from the family and the household, they were still the expression of the king’s personal power to rule, the connotation being that he ruled his kingdom as any man ruled his household. His actions, decisions, and orders could be issued as he thought fit and in whatever form he chose. The history of English constitutionalism is, then, the history of steps taken, initially to curb the personal discretion of the king, and later that of Parliament as his successor, while as late as the early twentieth century A. V. Dicey deprecated those very qualities of Parliament’s unlimited legislative authority.20 What has changed little after a millennium is that legislation is the act of an unlimited sovereign, an idea that derives directly and without rupture from that of the king’s household. Lacking roots in social practices, it is the opposite of customary law.
The relevance for our current concerns is in showing how enacted law, especially in the hands of sovereign bodies and their delegates, does not conform either theoretically or historically to any ideal, let alone to any natural social inclination that law should be in the form of general rules or that it should encourage autonomy and equality. The natural tendency is in the opposite direction, for sovereigns like heads of households must act in such ways as appear to them to be effective and expedient in achieving their ends. From those concerns might come pressures towards modern ideas of the rule of law; Machiavelli thought that pure expediency (p.260) alone would tempt leaders in that direction.21 That may be true and it may be enough to ensure the rule of law. At the same time, arguments of expediency are an unstable base for the expression of social relations and the organization of government; and the point remains that the rule of law rubs against the natural grain of government. And if this all seems remote from the modern state, just glance through a volume of contemporary statutes or regulations to see that, where much has changed, much more has stayed the same. The concerns for generality and autonomy are rebuffed by the stronger demands of government to be expedient, to hedge its bets, and to keep future options open. Just as the natural order of running a household is to retain discretion to take whatever action in whatever form the situation needs, it is the same for the modern state. If enacted law is to meet ideals of generality and autonomy, it will be the result not of qualities inherent in government, but of countervailing social forces.
The tensions inherent in enacted law are increased by several other factors to be mentioned in passing. One is that enacted law often lacks roots in social norms and practices, a feature that is most visible when its aim is to change social norms and practices. Another is attributable to the active state, the commitment to ordering and changing society in a host of ways, according to an agenda that acquires its own momentum which, once launched, is hard to stop. Foucault considered the law a much less significant or potent method of governance and discipline than other more informal and insidious forms, among which social spheres are prominent.22 Nevertheless, law in modern societies is ambitious in its goals and active in their pursuit, so that impatience with legal forms and constraining standards is predictable. Another way of viewing the same matter is in terms of overloading the legal order. Some theorists express this as juridification, an evocative term for turning social issues into legal matters.23 Over-juridification, the attempt to convert complex social, economic, and political issues into law, may lead to a breakdown in the ordered structure of the legal system, forcing it to cast off constraints that are only lightly attached. Over-juridification expresses a concern that the normative structure of modern orders lacks the capacity to cope with (p.261) complex social issues, and is at risk of being undermined or even destroyed by them.
Without attempting a full analysis of this idea, several aspects should be noted. The first is that the normative structure of modern law is more capable of responding to the social demands made on it than often imagined. Discretion has long been a means for introducing flexibility into law, while resort to purposes and open standards are common features of any legal order. All are ways of enabling the unlimited variability of economic, social, and political life to be transformed into legal forms. The notions of rule-based authority, of multi-layered standards guiding and restraining authority, of organisational pluralism and official self-restraint and cross-checking, together with avenues of complaint and scrutiny from citizens and non-governmental associations, endow modern legal orders with the capacity to respond to the ambitions of enacted law. Alarm over juridification is usually stimulated by an obsolete image of the legal structure, more akin to Hart’s salient fact of social life than to the more complex structure described here. The claim that overuse, or use for unsuitable purposes, is having a harmful effect on the form of law is a hypothesis whose confirmation depends on extensive empirical investigation. Empirical investigation requires a statement of the form of law and then an assessment of whether or not specific areas of law fit within it or undermine it.
Until that is done, it is difficult to know how seriously the concerns of over-juridification should be taken. After a cursory review of three areas of law – contract, family, and employment – a certain scepticism is warranted. All three, being areas of private arrangements overlaid by a regulatory structure, display the usual tensions between laws facilitating and making secure arrangements spontaneously entered into, and law regulating them in order to achieve positive social goods. All three also exhibit the expected mix of clear-line rules, open standards, and discretion, the second two being naturally more prominent in the goal-oriented regulatory aspects. Among the three, the tendency is most pronounced in employment law, where ideological goals are closely tied to the legal order, and fluctuate from one generation to another. Collective bargaining is prominent at one point,24 the promotion of employment and strengthening of relations between management and workers at another,25 while (p.262) economic efficiency and rights regulation are said to be currently prominent.26 Despite the prevalence of goals and standards coloured by ideology and politics, and despite its complexity and more than a hint of instability, there is little evidence of concern among jurists specialized in the subject that the rule-of-law form has been weakened or threatened. Concerns that the form of law is being eroded in modern legal orders should be taken seriously; but just how real the threat is remains uncertain and unproved.
If modern legal orders rely on the self-restraint of officials, rebellion is conceivable. What is there to stop officials, grouped as they are in powerful organizations with the instruments of coercion at their disposal, from defying the bonds of self-restraint, a phenomenon beyond contemplation in stable, modern societies, but in most others the normal state of affairs. Again, the Machiavellian case may be enough: officials are much more likely to have their way and further their interests by clothing themselves in legal weeds than rude power. That may be a factor but there is plainly more to it. Self-restraint is collective and institutionalized, aided and strengthened by organizational pluralism. Lapses here and there can be accommodated, so that even if one set of officials or another confounds the bonds of restraint, the system as a whole should survive and the deviation be remedied.
At the same time, the risks are plain. The bonds of restraint confront the natural tendencies within organizations towards the effective pursuit of goals. Being steeped in ideals rather than in social practices, the restraints are weak and fragile. Their internalization in the social spheres of organizations needs to be so deep-seated that negation is impossible to imagine or to occur, although the difficulty of reaching that point should not be neglected. Organizational pluralism is stronger or weaker in its capacity to restrain the behaviour of officials, and is at risk of being undermined by both major upheavals and gradual opposition. Organizations are composed ultimately of groups of individual persons, and stand or fall by their actions; organizations, nonetheless, have limited resistance to the rebellion of individuals. Rebellion in one part of an organization easily spreads to others and may infect the whole while the rebellion of one organization has a similar effect, so that the accumulation of isolated failures puts the whole system at risk. The pressures at work are easy to (p.263) detect, but to determine their likely outcome in practice, we need more empirical knowledge than now available.
Collapse of ideas
As governments of liberal societies rush to enact legislation allowing for exceptional measures to be taken against those suspected of terrorist activities, some see the beginning of the end of the rule of law. That conclusion is unwarranted, but it does show the vulnerability of ideals, and that to trifle with them is to threaten them. Ideals are often discarded as little more than the vehicles for vulgar interests, and although there is some truth in that, ideals also have a capacity to become ingrained in the social spheres and social consciousness of a society. And when to them is added the armour of government and non-government organizations, it is improbable that they will collapse under the weight of a few rash actions of government. Nevertheless, a cautionary tale lies in the craven ease with which ideas, that one day are taken to be constitutive of a society, to express its fundamental social relations, are the next day presented as contingent inconveniences. Ideas, by their very nature, are liable to change as other conditions change. Ideas are capable of achieving some autonomy and independence from material and practical interests, as we have seen. However, they are always vulnerable to collapse, and are most at risk when the practices of governments and officials no longer provide regular affirmation. Ideas of the rule of law, as they are expressed in modern legal orders, survive and develop only with the practical and ideological support of the organizations of government and civil society. If that support were withdrawn or subtly shifted, the ideas would soon wither.
On the force of law
The main authority on the form of law is Max Weber who argues that modern western societies have developed a distinctive form of law: Economy and Society, Chapter VIII, Part VIII.
A similar idea, although described differently, is central to Durkheim’s account of law is a highly differentiated (modern) society: The Division of Labour in Society, Chapter III.
A more recent account is R. M. Unger, Law in Modern Society, Chapters 2 and 3.
(p.264) Unger’s idea that legal order is disintegrating in modern societies is taken further by Nonet and Selznick in their brief but stimulating book, Law and Society in Transition: Towards Responsive Law (New York, 1978).
On the normative structure of modern legal orders
Feeley and Rubin give an extended analysis of the legal framework of judicial policy-making in relation to prisons. The main issue, in their view, is how that process is constrained or limited; they state: ‘Principles such as the rule of law are now treated in functional not categorical terms – the operative question is whether the policy-making process is subject to constraint. Our claim is that the process of creating doctrine, when performed properly, is inherently constrained….the unity of legal doctrine and the rule of law in judicial decision making generate constraints that are inherent, or in-dwelling, in the process of doctrine creation’. (Fudicial Policy-Making and the Modern State, p. 210).
Legal values in relation to discretion are analysed in D. J. Galligan, Discretionary Powers, esp. 2.32.
On the proposal that Responsive Law is the key to developing law in modern society, see P. Nonet and P. Selznick, Toward Responsive Laws: Law and Society in Transition. Responsive law is based on the limits of rules and the alternatives of identifying the purposes of a grant of official powers.
Purposes are partly objectively determined and partly arrived at by the participation of divers groups and interest. For a critique of this approach: see D. J. Galligan, Discretionary Powers, section 2.33.
The rule of law
Definitions of the rule of law are plentiful; among those of particular historical interest are:
Hart, op. cit, Chapter IX.
F. A. Hayek, The Road to Serfdom (Chicago, 1944).
F. A. Hayek, Law, Legislation and Liberty (3 Volumes, Chicago, 1973–1979).
J. Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law.
L. L. Fuller, Law and Morality (New Haven, 1969 second ed.)
J. Habermas, op. cit.
For a recent survey of different versions of the rule of law and their historical origins:
B. Tamanaha, On the Rule of Law, (Cambridge, 2004).
On the rule of law in relation to regulations:
K. Yeung, op. cit.
Instabilities in modern legal orders
On weakening the normative structure by over-juridification:
G. Teubner (ed) Juridification of Social Spheres and Dilemmas of Law in the Welfare State (New York, 1988).
N. Luhmann, op. cit.
On contract law
H. Collins, The Law of Contract (London, 2003 fourth edn.)
G. Treitel, The Law of Contract (London, 2003 1 1th edn.)
D. Campbell, ‘Reflexity and Welfarism in Modern Law in Context’ 20 (2000) Oxford Journal of Legal Studies 473.
S. Smith, Contract Theory, (Oxford, 2004).
On family law
J. Herring, Family Law (London, 2004, second edn.)
F. Burton, Family Law (London, 2000).
J. Eekelaar, ‘What is Critical Family Law?’ 105 (1989) Law Quarterly Review 244.
M. King, ‘Future Uncertainty on a Challenge to Law’s Programme: The Dilemma of Parental Disputes’ 19 (1992) Journal of Law and Society 271.
On employment law
S. Deakin and G. Morris, Labour Law (London, 2001).
H. Collins, Employment Law (Oxford, 2003).
A. C. L. Davies, op. cit.
K. Ewing, ‘Democratic Socialism and Labour Law’ (1995) 24 Industrial Law Journal 103.
(1) An original can be seen in the Archivio di Stato in Siena.
(2) D. J. Galligan and M. Matczak, Strategies of Judicial Review (Warsaw, 2005) pp. 1–37.
(4) R. Unger, Law in Modern Society (London, 1976).
(5) P. Nonet and P. Selznick, Law and Society in Transition: Toward Responsive Law (Berkeley, 1978).
(6) The international aspect of relations among officials is well-established, that between citizens and international officials is in its early stages.
(12) For an extended analysis of discretion and the normative legal framework around it, see my earlier book Discretionary Powers. A more recent and illuminating account of the modern legal form is M. M. Feeley and E. L. Rubin, Judicial Policy Making and the Modern State (Cambridge, 1998).
(17) For a recent retelling of an old story see G. Robertson, The Tyrannicide Brief (London, 2005).
(18) I. Origo, The Merchant of Prato (London, 1954) p. 197.
(19) L. M. Larson, The King’s Household in England Before the Norman Conquest (1904 quoted in C. B. Chrimes, An Introduction to the Administrative History of Medieval England (Oxford, 1959).
(20) A. V. Dicey, The Law of the Constitution (London, 1961).
(21) For an imaginative account of the Machiavellian approach: see S. Holmes, ‘Lineages of the rule of law’ in J. M. Maravall and A. Przeworski (eds), Democracy and the Rule of Law (Cambridge, 2003).
(23) For instance: N. Luhmann, Law As a Social System and G. Teubner, ‘Juridification: Concept, Aspect, Limits, Solutions’ in Juridification of Social Spheres (Berlin, 1995).
(24) A. C. L. Davies, Perspectives on Labour Law (Cambridge, 2004), p. 3.
(25) H. Collins, ‘Regulating the Employment Relation for Competitiveness’ 30, (2000) Industrial Law Journal, 17.
(26) S. Deakin and G. Morris, Labour Law (London, 2001, 2nd edn.), p. 57