Monday, March 16, 2009

Rule of Law

Professor Nicholas Capaldi visited the University of Tulsa last Wednesday and presented a lecture on the Rule of Law. In law school, the Rule of Law is ingrained in each and every student as one of the most important aspects of practicing law. However, there is overwhelming failure to actually define Rule of Law. Professor Capaldi offered an interesting and very succinct definition.

Rule of Law is defined as "categorical (non-instrumental) procedural norms in a civil association."

If this makes absolutely no sense to you, no worries. As Professor Capaldi pointed out, most succinct definitions don't make sense, unless you understand the research that went into determining this definition. Each portion of this definition refers to the work of well known legal thinkers. (Problem is, law school doesn't teach about the works of legal thinkers anymore, so they may not be as well known as they should be.)


It is believed that Dicey was the first utilize the term, Rule of Law. His understanding of the Rule of Law was a system of rules created by people to limit themselves. There is no overall power that dictates what must be done. The people dictate the system and live by the system.


Hayek is associated with the explanation that the Rule of Law is not and may not be an instrument of social reform. If it becomes a tool for social reform, it is no longer the Rule of Law.

Procedural Norms

In order for a Rule of Law to exist, there must be set forth procedural norms. These norms, according to Fuller, guide individuals in their decision making and it is required that these norms be general, clear, publicly promulgated, and they may not be retroactive. There are other necessary aspects of these procedural norms, but I failed to write fast enough to get them all written down, but you should get the idea. It is also very important to note that procedural norms change with the progression of time. But, these procedural norms must change as a reaction to the change of the people. It is improper to force a change in the procedural norms in order to force a change in the people.

Civil Association

This may be the most important aspect of this definition. Generally speaking there are two types of associations: Enterprise Associations and Civil Associations. According to Oakshott, a Civil Association is a grouping of individuals with no overall collective goal. Individuals are allowed to have and attain their own goals. The interesting aspect of Civil Associations, is the allowance of Enterprise Associations within them. An Enterprise association is group created with a collective goal. Within the group there is no room for individual goals, only the goals of the group. (Examples include the military, religion, and corporations.)


In an attempt at clarity over succinctness, the Rule of Law is a system of norms created publicly by the people to govern themselves in their never-ending attempts to attain their individual and enterprise goals.

The United States is about as close as civilization has come to having a society based upon the Rule of Law. It is the mixture of a representative government with checks and balances and a legal system ruled by legislation and common law that has created and defined our Civil Association.

However, based upon this understanding of the Rule of Law, our civil association may be in peril. It is interesting and scary to see how the Supreme Court has become a tool to achieving enterprise goals (both from the left and the right), rather than a branch of protection for our procedural norms. Rather than dictating the Rule of Law based upon the principles set forth by the people, the Supreme Court has generally become a tool of politics, an attempt to force "alien norms" on the people. The Supreme Court was meant to be the non-political checks and balance of our government, and yet, it appears to have become uncontrollable.

What is the difference between God and a Supreme Court Justice?

God knows he is not a Supreme Court Justice.


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