Formal conceptions

Differently from the French and German nineteenth century tradition, the formal conceptions of the Rule of Law under discussion extend the scope of the legal constraints from the administration only to also embrace the power of the Legislator. After the Second World War, the analysis of the Legislative power was greatly impacted by the elaboration of the principle of legality and the concept of fidelity to law developed by Lon Fuller. Notably, Fuller assumed the very possibility of speaking of a “Nazi legality” to be an oxymoron. According to the American jurist, it is not enough that “a system [calls] itself law”, “the name of law” can – or better, should - be denied whenever such a system does not respect some requisites¹⁸². Fuller identified eight principles defining that which he called the “morality of law”: generality of law, public promulgation, prospective character, intelligibility, consistency, practicability, stability, and congruency between the law and the behaviour of the officials¹⁸³.

I will come back later to Fuller’s doctrine but, for the moment, I want to emphasize that things start to become problematic when, from values thought as defining the morality of the legislator, Fuller’s eight principles and similar lists of requirements are taken as a set of formal conditions expressing the necessary and sufficient conditions that legal rules have to fulfil for better performing the role of governing behaviour; and at the same time, such functional requisites are taken as the only

182 Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, in Harvard Law Review, 1958, 71, 4, p. 660

183 Lon L. Fuller, The Morality of Law, pp. 46-95

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conditions whose respect can ever be demanded under the theory of the Rule of Law¹⁸⁴. This approach, indeed, frames the discourse on the Rule of Law as a discourse on formal rules and their qualities. As Radin underlines, when appropriated by instrumental-formalist perspectives, Fuller’s eight principles are actually reduced to two: “there must be rules” and “those rules must be capable of being followed”¹⁸⁵.

This approach is exemplified by the conception elaborated by Raz in The Rule of Law and Its Virtue¹⁸⁶, according to which the Rule of Law represents the

“excellence” of law and it is accomplished when the law performs optimally its function of guiding behaviour. Raz claims that the Rule of Law “is essentially a negative value”¹⁸⁷: the function that it performs is “negative” in that it consists in preventing the exercise of arbitrary power. For Raz, indeed, the greatest danger of arbitrary power is inevitably that which is “created by the law itself”: the creation and application of law can indeed be a source of instability, obscurity, or turn out into a retrospective exercise of power¹⁸⁸. Correspondingly, the virtuous aspect of the Rule of Law consists in the addressing of the forms of arbitrariness that are manifested in the creation and application of law: on one hand, it prevents that the legislator adopts secret laws, or change them abruptly; on the other, it aims at ensuring that the action of both the administration and the judiciary strictly falls within the lines drawn by the law. Such “virtue”, then, can be appreciated not by looking at the goods that the law aims at securing, but by looking at what the law qua law, i.e., as an instrument for the government of behaviour, is capable to secure:

Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put. It is the virtue of efficiency; the virtue of the instrument as an instrument. For the law this virtue is the rule of law¹⁸⁹

The Rule of Law is attained when the law is capable of ruling, that is, of guiding behaviour in an efficient manner. Raz illustrates his point with the metaphor of a knife:

“[a]s with some other tools, machines […] a thing is not of the kind unless it has at least some ability to perform its function. A knife is not a knife unless it has some ability to cut” […] the fact that a sharp knife can be used to harm does not show that being sharp is not a good-making characteristic for knives. […] A good knife is,

184 cfr. Emilio Santoro, Diritto e diritti, cit., p. 106

185 Margaret J. Radin, Reconsidering the Rule of Law, cit., p. 785-786

186 Joseph Raz, The Authority of Law, cit., p. 211. It is worth noting that, at a later time, Raz has elaborated a different account of the Rule of Law, which he calls “principled faithful application of the law”, which largely revisits the theory under discussion; see, Joseph Raz, The Politics of the Rule of law, in Ratio Juris, 1990, 3, 3, p. 331, 335. Indeed, one may say that the conception that he denotes as “the Rule of Law as an aspect of bureaucratic justice” resembles in many aspects his former elaboration, see, ivi, p. 322

187 Joseph Raz, The Authority of Law, cit., p. 224

188 Ivi

189 Ivi, pp. 225-226

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among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of laws, indeed it is their most important inherent value¹⁹⁰

The form of arbitrariness that Raz’s understanding of the Rule of Law aims at contrasting is unpredictability and deviation from that which is predicted. Arbitrary power is like a deviation from the rails and, accordingly, the aim of the Rule of Law is to ensure that such rails are crafted in such a way that they are underailable.

As a consequence, the law can be said to rule when it works as an efficient instrument, a well-oiled machine in whose functioning one can rely, whatever the identity of the rule-maker and the function to be performed¹⁹¹. The lack of fulfilment of formal requirements on the part of the law-maker, as much as the unfaithful execution of legal rules on the part of the administration and the judiciary, clogs the rule-machine and indirectly frustrates the possibility to form expectations; it ruins the execution of the plan adopted through laws. Raz’s conception of law rests on a certain conception of rules and of the role they play in citizens’ life. Both on the side of the rule-maker and on that of citizens’ self-application of rules, what is emphasized is the capacity to calculate the consequences of actions. Both the rule-maker and citizens are subjects who make plans – a plan of general order the former, a life plan the latter – by projecting rules. The Rule of Law protects individuals in the sense that it attempts to minimize the possibility that the law becomes the cause of a frustration of individual expectations, expectations which, in their turn, are expectations that the law, as clearly stated, will be so implemented¹⁹². On the other hand, by optimizing the conditions necessary for law to guide behaviour, it aims at increasing the degree of obedience to law of both officials and citizens¹⁹³. For what concerns the judicial system, indeed, the concern that the Rule of Law address is that “the courts apply the law correctly¹⁹⁴”.

190 It goes without saying that, in the context of the present research, Raz’s instrumental understanding of law is justified, inter alia, on the assumption of the neutrality of technology cannot but ring an alarm bell. As Kranzberg’s law maintains, “[t]echnology is neither good nor bad, but never neutral”¹⁹⁰. Raz anticipates the possibility of undesirable consequences of the Rule of Law, since he admits that not only the Rule of Law is compatible with every kind of regime, but also “with gross violations of human rights” and that “it has no bearing on the existence of spheres of activity free from governmental interference”. However, this cautionary note does not yet account for the implications that result from the very understanding of law as a neutral instrument for governing social behaviour. I will discuss in more depth the relevance of this aspect in the light of computational turn in the next chapters, while for the moment I am interested in stressing some implications which one may consider internal to the Rule of Law debate. See, Joseph Raz, The Authority of Law, cit., p.

221; Melvin Kranzberg, Technology and History: “Kranzberg’s Laws”, in Technology and Culture, 1986, 27, 3, p. 544. See the discussion in Mireille Hildebrandt, Smart Technologies and the End(s) of Law, cit., p. 162

191 The principles of virtuous rule-design are to be adopted not only in relation to statutory legislation, but also applies to judges especially in common law countries where their decisions formally constitute sources of law as precedents. See, also, Antonin Scalia, The Rule of Law as a Law of Rules, in The University of Chicago Law Review, 1989, 56, 4, p. 1176

192 Joseph Raz, The Authority of Law, cit., p. 222

193 Ivi, p. 214

194 Ivi, p. 217

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In this respect, formal conceptions harken back to the more ancient roots of the Rule of Law, the idea there is a good in being governed by laws, whatever their content, and this good is the good of the law qua rules.