2005 Note: This essay was first presented (in Russian translation) at a 1995 human rights conference in Kazakhstan, where I lived and worked during 1994-96. It was slightly revised in 1998 to accompany the Constitution of Jurlandia (and its companion Explanatory Essay) on the first Jurlandia website, hosted by an agency of the U.S. Department of Justice. Thereafter, during 1998-2003, it became the backbone of my course for entering students of the Department of Law of the American University of Armenia, entitled Introduction to Jurisprudence and the Western Legal Tradition. Indeed, it is fair to say that this essay, first available to students on AUA's intranet and augmented with hotlinks to other writings under development at that time, formed the "trunk" of the sapling that is growing into the Jurlandia website. This essay is the most cited of these Jurlandia materials. [1] Footnotes and hotlinks have been added since 1998.

Likewise, "government under law" differs from "government by laws".

The Russian pravovoe gosudarstvo is often translated as "government under law" but is usually interpreted to mean, essentially, "government by laws" — which, of course, is a great improvement over a system in which officials act without reference to laws.

Although an improvement, however, "government by laws" is not sufficient for a constitutional democracy — because it still begs the central question: What binds, or ought to govern, those laws? Who shall watch the watchman? This is the most fundamental question undergirding Rule of Law and Due Process of Law.

Is "law" anything the sovereign says it is? Is the "law-maker" merely whoever has a monopoly of coercive power? Is law (as Mao said) whatever comes out of the barrel of a gun? Or is law, properly understood, itself governed by basic norms of law-making? And, if so, what are those norms?

Can a parliament's legislation be unlawful? Can a constitutional provision be "unconstitutional" in the sense that it violates fundamental global norms of constitution-making which are themselves premised on the presumption of Liberty to which the Rule of Law is subservient? The answer, since the Nuremberg trials following World War II, is — or ought to be — very clear. Yes. Some "laws" are lawless, and to obey them is a crime.

Under Hitler, the German Rechtsstaat was (at its very best) merely a Gesetzesstaat — a state that rules by laws — and that turned out to be very bad indeed. Since the Nazi era, German jurisprudence has rightly sought to define the Rechtsstaat as a "law-based-state" in which "law" is itself "based" on principles that cannot be defied by anyone or anything, including the parliament and the constitution.

The theory that law is whatever the ruler says it is was very popular, worldwide, prior to the rise of Stalin and Hitler. That theory is called legal positivism. Following World War II, the world increasingly abandoned legal positivism, but it remained central to Soviet law and remains imbedded in post-Soviet law. See Theory of State and Law. See also Lustration in Transitional-Justice Context.

A pre-war critic of legal positivism, and one of the leading philosophers of law during the past century, was the late Lon L. Fuller, a professor at Harvard Law School. His book, The Morality of Law (1964, rev. ed. 1969), sought to articulate the "unarticulated major premises" underlying the Rule of Law. The following discussion is based largely on Fuller's work. A further discussion of Fuller's work and these "Ten Principles" appears in The Enterprise of Integrative Jurisprudence.

Law, properly understood, consists of more than the written texts of "positive" — that is, enacted — treaties, constitutions, statutes, decrees, and administrative rules and regulations. Although these, as well as judicial decisions, etc., point to the law, the law transcends them.

The law is like a map or blueprint: it is about something else — the territory, the evolving global house. And its most fundamental rules govern how this blueprint should be constructed, organized, and interpreted. The fact that the sources of law must be hierarchicalized, and the methods by which all law should be interpreted and implemented, are vital to the Rule of Law and to constitutional democracy. Indeed, this hierarchy grows naturally from the Rule of Reason so central to the Rule of Law.

A good constitutional horse should be harnessed in front of the legislative cart prior to loading decrees, edicts, regulations, and the machinery of administration. But the "genetic code" by which good horses are made deserves paramount consideration; how constitutional law is made governs the viability and legitimacy of the resulting product; process and product are inextricably tied; how you get there will determine where you will arrive.

As any good biologist knows, genetic codes are less "things" than evolving activities, less nouns than verbs. So are constitutions.

The activity of thinking about, debating, and adopting a constitution is as important as the resulting document. Highest in the hierarchy of law are those standards by which the adequacy of a constitution — and the methods by which it was adopted — must be judged. These standards focus on the basic question: What is a constitution?

Here is a thought experiment. We have constructed a box, with an opening to let in pigeons. Outside this opening is a black button, and inside are several different-colored buttons. We have designed this experiment as follows: If a pigeon enters the box and pecks the green button, a two-day supply of food pellets will enter the food trough, but thereafter that pigeon will get no food for one week; if a pigeon pecks any other button inside the box, little or no food will reward it. However, if a pigeon, before entering the box, pecks the black button outside, then pecking any color inside will reward it with a nice little meal — unless it is in the seven-day punishment period for having pecked the green button without first pecking the black button. Question: Will pigeons learn the value of pecking the black button before entering? Will they thus "limit" themselves by a hierarchy of rules — thereby improving their lives?

This thought experiment was suggested by Prof. Lawrence Tribe. It helps to focus our attention on a key aspect of constitutional law: self-limits. As a constitution limits (or should limit) all legislation, etc., so too a constitution must itself be limited, governed.

Everybody agrees that the rules by which documents like constitutions should be interpreted are, in a sense, "higher" than constitutions. Put differently, part of a good constitution can never be contained within the document called the constitution. [3]

Understanding self-limits and self-governance requires understanding how "governance" and "cybernetics" are related, both linguistically and in practice. I have addressed this question in several companion essays.

Humans are not pigeons, of course. But the question remains: Will humans learn to "limit" themselves by a hierarchy of rules — thereby improving not only their lives but also the chances for worthwhile evolution of rational, experience-based civilization?

See "Original Meaning" of the Constitution.

Second Principle: Rationality

Rationality, properly conceived, must suffuse all law and law-making. The scope of this principle is vast. Without rationality, so-called "law" is mere sound and fury, signifying nothing worthy of human evolution.

Rational law seeks to translate present wisdom, based on past experience, into future action. Such wisdom should be disciplined by "logic" (rules of clear thought and expression), nurtured by "science" (the evolving sum and substance of all hypotheses embracing all credible experience, observation, and experiment), and inspired by the faith that to be human means to exercise free will, to aspire to make meaningful and good choices — rational, balanced, and "impeccable" selections among various options ... leading to good actions, value-rich conduct, that mosaic of qualities which the ancient Greeks called areté.

Third Principle: Generality

Law — and all rational governance — should apply equally to all similarly-situated persons and institutions.

This principle embraces the constitutional requirement of equal protection of the law, perhaps the most "general" element of Due Process of Law.

The many books and articles on due process and equal protection attest to the vital importance of the jurisprudence on these intertwined concepts. On reflection, we see that equal access to the blessings of liberty implies equal burdens. Blessings and burdens are reciprocal, interpenetrative, whether conceptually or "on the ground" where ideas must translate into choices and actions.

Fourth Principle: Congruence

Law must govern official action no less than personal or business relationships.

The requirement that official conduct be congruent with declared rules of law is especially important; law is not merely what is "given by the governor" to govern subjects; in a constitutional democracy, specifically, the "law-giver" is the people, instructed by history — and their law is directed as much at the government as at themselves.

This is crucial: constitutional law focuses most penetratingly on governing the government; thus, it is irrational to have constitutional law "given by the government"; such so-called "constitutionalism" cannot supply an adequate foundation for government under law. Note that after the Gulf War, Saddam Hussein announced that he would give Iraq a new constitution; by definition, such a constitution must be a contradiction in terms, an absurdity, an "irrational law" that violates the second principle.

Fifth Principle: Promulgation

Law must communicate; it should be published and knowable; rules and standards of conduct that are not communicated, that are not knowable, should have no force or effect. "Law" that is unknowable is absurd and hence lawless. See Why Publish Judicial Decisions?

An aspect of promulgation that is crucial, yet often ignored, requires judges to set forth the true reasons for their decisions. These reasons should not be formulaic syllogisms, but instead should reflect the actual mental processes that led to the judge's choice of relevant facts and legal principles. Law students, lawyers, judges, the general public, need to be able to review all past judicial decisions, and need to be able to dissect them and critique the process of reasoning — of gathering and sorting and marshaling facts, and of applying to them the proper principles of the law — which led to the judge's decision.

Sixth Principle: Clarity

Closely related to the principle of promulgation, law must communicate clearly; rules and standards of conduct must be ascertainable and comprehensible.

This test, of course, is context-specific; for example, the constitutional requirement of equal protection of the law should not fail this test merely because centuries of jurisprudence "define" that concept in all its nuance.

Likewise, the "Due Process of Law" — fundamental fairness — necessary for constitutionally depriving a person of a driver's license, requires different official circumscriptions than does the "Due Process of Law" necessary for depriving a person of liberty or life. Yet, as any student of "Due Process of Law" jurisprudence knows, this phrase ordains ascertainable standards of conduct in each instance.

Those who have eschewed the value of history to the development of law will never be able to "define" what "Due Process of Law" requires in each instance, unless — unashamedly, indeed gratefully — they begin their own jurisprudence on this subject by borrowing from legal systems that have struggled with defining fundamental fairness for many centuries.

The history that defines the quest for fundamental fairness belongs to the whole world as much as do the ideas of Socrates, Plato, and Aristotle. First appearing in the ancient Statute of 28 Edward III, the phrase "Due Process of Law" specifically alluded to and explicitly restated Magna Carta — the first "law" by which a people governed their government. Magna Carta, imposed upon the King of England in 1215, reflected evolving principles of law originating in Greek, Roman, Judaic, Christian, and Islamic jurisprudence. England borrowed unashamedly!

This ancient "Due Process of Law" jurisprudence can be traced, and all subsequent jurisprudence consulted, in order to discern the requirements of "Due Process of Law" in every particular case. This would not be possible, of course, without a record of the history — including, in this instance, many thousands of case histories — giving that concept meaning, clarity, and hence life.

No concept that has a history can be defined without reference to that history. The concept of fundamental fairness — Due Process of Law — is defined in thousands of specific cases decided over hundreds of years. This wisdom belongs to everybody.

Seventh Principle: Dynamic Constancy

Law grows, its language evolves, and a legal system worthy of this name must be embraced within that evolutionary process; thus, law must be dynamic yet constant — changing, but only according to essentially changeless principles of legal evolution, including (as noted above) the principle that judges should give the true reasons for their decisions.

So-called "law" that blows hot and cold, fluctuating wildly, provides no predictable or rational bases for human foresight and action; it is absurd; it is not law.

Eighth Principle: Non-Retroactivity

The law should not hold a person accountable today for "illegal" conduct (as today defined) that was not illegal yesterday, when engaged in; that is the standard for criminal law; this principle is more complicated in other areas of the law.

The concept of "accountability" is central to any rational system of law; retroactive laws (with important exceptions) do irreparable harm to the integrity of that central concept. Again, these principles are not absolutes; they are not written in stone; they point towards values that themselves point beyond easy (or any) articulation.

Of all these principles, that of non-retroactivity is the most intellectually complex; volumes have been written on exceptions, modifications, etc. As noted, in the criminal-law area this principle is fairly inflexible; in other areas of law, however, exceptions often seem to swallow the rule. Suffice it to say that any country seeking to implement this principle should avail itself of the jurisprudence already existing on this subject. A country that has been cut off from the nutrient-rich tides of global jurisprudence would be foolish to try to reinvent this multifoliate body of wisdom — as foolish as it would be to try to reinvent the wheels of global commerce, banking, security interests, letters of credit, etc.

Again, law — even more than science — is "borrowed" (use any word here you want, but do not reject the territory of global jurisprudence!); those who see farthest stand, unashamed, upon the shoulders of giants — generations of giants.

Ninth Principle: Non-Impossibility

The law should not require the impossible. As noted, Due Process of Law requirements are based on centuries of philosophy and jurisprudence regarding the meaning and value of "reason" in human affairs; unreasonable law is highly suspect and usually fatally flawed on that ground alone; laws that command the impossible are not only unreasonable, they are absurd — and hence lawless.

The world has proclaimed, however, that it does not consider as "impossible" its command that a person refuse to carry out various unlawful laws; for example, a superior's order to commit genocide must be disobeyed. Yet, as a matter of practicality and fundamental fairness, the world should focus on prosecuting superiors, not inferiors; high officials who ordain tyranny are the worst of criminals.

Tenth Principle: Non-Contradiction

Law should compose a coherent "body" of law; the right side of the "mouth" should not forbid what the left side requires, although — as noted — good judgment does require weighing contrasting values.

In an imperfect world, various sources of law do in fact ordain conflicting standards of conduct, etc.; that is why we must attend to the "hierarchy of sources" of law — from global-constitutional to domestic-constitutional, and, within each so-called sovereignty, from constitutional to legislative to administrative, etc. Together, those sources should form a coherent body of law.

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts. [Hayek, Chapter 6, p. 80.]

The above includes the following footnote:

According to the classical exposition by A.V. Dicey in The Law of the Constitution (8th ed.), p. 198, the Rule of Law "means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government."

I should note that, for Dicey, "regular law" is also a term of art. His "law of the constitution" is about a specific model, that of England, in which "the constitution" and "the rule of law" are essentially identical. They start with the 1215 Magna Carta, the "law of the land" by which "due process of law" is secured. In addition to that "absolute supremacy" of regular law, Dicey notes that there must be "equality before the law" and a recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals." (p. 199)

Interestingly, while Dicey's text does not use initial-caps, his "side notes" accompanying the text do. His side note to page 198 is "Summary of meanings of Rule of Law" and his side note to page 199 is "Influence of 'Rule of Law' on leading provisions of the constitution." The first edition of Dicey's classic was published in 1885. The eighth and final edition was published in 1915.

Finally, I note that the Supreme Court of the United States uses initial-caps for "Rule of Law" in Hamdan v. Rumsfeld, decided on June 29, 2006. In writing for the majority, Justice Stephens asserts that fundamental principles of "the law of war" (such as Common Article 3 of the Third Geneva Convention) are part of the law of the United States. He concludes his Opinion: "[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." (Go back)

[3] Dicey (see Footnote 2) is focused on a unique situation, England before its membership in the European Union. Arguably, since joining the E.U. England has come closer to the model of a country with a "written constitution" — that is, a country with a single writing (as distinct from numerous writings, starting with Magna Carta) that sets forth its constitutional foundations. Even so, there is a deeper issue here: Dicey's assertion that constitutional law is part of "regular law" seems to suggest that, to him, there is no hierarchy of sources of law. If so, I disagree with him. If, as quoted above, "the law of the constitution ... [is] not the source but the consequence of the rights of individuals" (as I think is profoundly true), then "regular law" must likewise serve those rights, and no right seems more fundamental than the right to "regular law" that conforms to the Ten Principles here illuminated. A constitutional democracy must "regularize" — and necessarily balance — limited and accountable governance, individual rights and corollary responsibilities, and those "democratic processes" undergirding the Conversation of Democracy which, together, constitute Ordered Liberty. This requires "regulation" subordinated to legislation subordinated to constitutional law subordinated to the Rule of Law ... including these Ten Principles. (Go back)

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