Procedural conceptions

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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.

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points out, while positivist scholars tend to discuss of the activity of courts in terms of mere outputs, the essential features of any legal system and the Rule of Law cannot be explained without paying due attention precisely to the judicial procedures through which legal norms are applied and disputes are settled¹⁹⁷. Contrasting the positivist emphasis on the “command-and-control” or “norm-and-guidance” aspect of law¹⁹⁸, Waldron claims that the Rule of Law cannot be accounted for without acknowledging the importance of, on one hand, the “highly proceduralized hearings in which problems are presented to a court” and, on the other, “the various procedural rights and powers possessed by individual litigants in relation to those hearings”¹⁹⁹.

For MacCormick the Rule of Law cannot be said to exist unless an individual is granted the “right of the defence to challenge and rebut the case made against it”.

Indeed, as he added, “[t]here is no security against arbitrary government unless such challenges are freely permitted”²⁰⁰. In this perspective, these conceptions show that the particular value that formal accounts of the Rule of Law attach to the virtue of rules in contrasting arbitrariness cannot obtain unless there are in place effective remedies.

On the other hand, both Waldron and MacCormick acknowledge a certain friction between the demands of the formal and the procedural conception of the Rule of Law. MacCormick presents it as the “puzzle about the apparent conflict between law as that which is arguable, and law as that which guarantees security and stability in social life within a state under the Rule of law”²⁰¹. As he highlights

indeterminacy [of law] is in a curious way magnified by the very same considerations that lead to the demand for determinate law. For the dialectical or argumentative character of legal proceedings is a built-in feature of a constitutional setting in which citizens are able to challenge any case laid against them. […] A vital part of the guarantee of liberty in the governing conception of the Rule of Law is that the opportunity to mount such a challenge on fair terms and with adequate legal assistance be afforded to every person. And yet that same governing conception calls for relatively clear and determinate law in the form of pre-announced rules²⁰²

For Waldron, the tension between the procedural conception and the formal requirement that relate to legal determinacy is “largely unavoidable”²⁰³: the

“diminution of law’s certainty” is the “price” to be paid for sustaining the

entrenchment of the value of procedural rights in the legal mentality of the time. See, Gaetano Filangieri, Riflessioni politiche su l'ultima legge del sovrano, che riguarda la riforma dell'amministrazione della giustizia, Morelli, Napoli, 1774, part I, § I.

197 Jeremy Waldron, The Rule of Law and the Importance of Procedure, cit., pp. 12-13; Id, The Concept and the Rule of Law, cit., pp. 20-24; 60

198 Jeremy Waldron, The Rule of Law and the Importance of Procedure, cit., p. 22

199 Ivi, p. 11

200 Neil MacCormick, Rhetoric and the Rule of Law, cit., p. 27

201 Ivi, p. 22

202 Neil MacCormick, Rhetoric and the Rule of Law, cit., p. 26

203 Jeremy Waldron, The Rule of Law and the Importance of Procedure, cit., pp. 18-20

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dignitarian aspect of the Rule of Law, that is, acknowledging the individual addressee of legal norms as “beings capable of explaining themselves”²⁰⁴.

MacCormick, conversely, adopts a different position. The Scottish jurist, indeed, stresses the need to acknowledge that a conception of the Rule of Law which not only ignores, but sets itself in antithesis to the “Arguable Character of Law” cannot but be traced back to “a misstatement in the emphasis it gave to certainty in law”²⁰⁵. According to MacCormick, while certainty undoubtedly plays an important role in any legal system, one should not misrepresent the requirements necessary for its realization: as he puts it, “[a]ll the care in the world may be devoted to preparing the source materials of law” but “[w]hatever care is taken, the rule-statements […] are always defeasible, and sometimes defeated under challenge by the defence. Law’s certainty is then defeasible certainty”²⁰⁶.

I believe that MacCormick’s approach, by attempting to overcome the idea of a necessary incongruence between the different requirements of the Rule of Law, has a number of merits. On one hand, it helps emphasizing that that which is performed through judicial procedures is not only a “negative” forms contestation, a defence against an imposition by the State, along the model of the defendant in criminal law. Many are indeed the cases in which the obstacles to the enjoyment of rights are not represented by the State’s action, but by its inaction. Legal procedures, in these cases, are the locus in which, by exercising her right of action, the individual seeks not only legal protection from the State, but by the State. Moreover, as I will discuss more thoroughly in the next paragraphs, an approach aimed at dissolving the tension between formal and procedural requirements paves the way for the acknowledgment of the circumstance that the very entitlement of rights and the scope of the protection they offer is, necessarily, a matter that constantly requires to be settled, but that can never be settled once and for all. That the existence of legal procedures is essential for the very concept of rights is in this sense comforted also by Feinberg’s consideration that “[t]here is, after all, a verb ‘to claim’, but no verb ‘to right’”²⁰⁷.

In this light, I believe that the perspective assumed by MacCormick facilitates an understanding of the procedural conception of the Rule of Law that, instead of putting them in contrast, affords to reformulate the relation between the certainty of law and the certainty of legal protection as co-constitutive. Indeed, it makes possible to highlight the fact that not only procedures for arguing and contesting the law are not in tension with formal requirements, but actually constitute a necessary precondition for the latter to obtain. Well beyond the nomophylactic

204 Ivi, pp. 19, 16

205 Neil MacCormick, Rhetoric and the Rule of Law, cit., p. 28

206 Ivi

207 Joel Feinberg, The Nature and Value of Rights, in Journal of Value Inquiry, 1970, 4, p. 250

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function performed by higher courts, judicial dispute resolution contributes indeed to the clarity, certainty and predictability of legal rules²⁰⁸.

Lastly, an approach directed at dissolving the tensions between formal and procedural requirements has a deeper implication on the very understanding of the legal phenomenon, in that it highlights that an account of law qua rules not only is not set against, but actually rests on the contexts in which the latter are invoked as rules, that is, the practices in which they are used as, and given the meaning of, rules. In other words, the tension which ultimately such perspective dissolves is the tension between legal rules and legal practice. For this reason, I believe that such approach is particularly suited to question the very standing of a picture of the legal phenomenon in which, on one hand, the machine of law moves on its own tracks and, on the other, all individuals can do is trying to predict the import of legal rules for either avoiding the train or, at best, hoping to jump on it.

1.4. The aporias of the Rule of Law and the different types of