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Once reserved for debates among academics and law students, positive affirmations about the value of the 'rule of law' have become commonplace in contemporary political discourse. As Waldron observes in his new book Thoughtfulness and the Rule of Law (2023), 'popular and political deployments of the rule of law' have been littered throughout conversations surrounding the status of detainees at Guantanamo Bay, international humanitarian law, and, somewhat more recently, the presidency and subsequent court cases related to Donald Trump (p. 39). But what does any of this mean? In Chapter 2, Waldron argues the rule of law gives 'central place to a requirement that people in positions of authority should exercise their power within a constraining framework of norms, rather than on the basis of their own preferences' (p. 37). Undoubtedly, the importance placed upon the rule of law ideal is, in part, predicated upon the values of determinacy and predictability previously discussed by scholars such as Fuller (The Morality of Law, Yale University Press, 1964) and Raz (The Authority of Law, Oxford University Press, 2009). However, Waldron argues this focus on determinacy and predictability overlooks the importance of other sorts of values, including distinctive procedural components (such as the roles of courts, legal arguments, and reason) (p. 70). The crux of Waldron's argument in this chapter is the belief that one's answer to the question 'What is law?' necessarily has implications for one's understanding of the 'rule of law': both descriptively and as a political/normative ideal. It would seem to follow, therefore, that insofar as you agree that an understanding of 'law' that excludes the important role of principles, arguments, and courts would be an impoverished one, the same is true for an understanding of the 'rule of law'. This leads Waldron to the central importance the rule of law has for realizing and respecting human dignity. In Chapter 3, Waldron notes that although human dignity is undoubtedly a 'constructed human artifice', nevertheless it picks out something important about human beings (p. 89). On Waldron's account, 'dignity is the status of a person predicated on the fact that she is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her' (p. 76). The rule of law, therefore, respects human dignity insofar as it 'presents itself to its subjects as something that one can make sense of' (p. 85). Waldron continues this line of argument in Chapter 4, noting that legal systems 'work by using, rather than short-circuiting, the agency of ordinary human individuals' (p. 116). Thus, although the values of determinacy and predictability are undoubtedly part of realizing and respecting dignity, Waldron argues this has tended to obfuscate other (perhaps more important) ways the rule of law serves these ends by engaging persons' rational capacities (e.g. through self-application, impartial legal proceedings, and legal arguments). So how do courts and judges respect the rule of law? Recall that Waldron is known as an opponent of the judicial review of legislation. For Waldron, the legislator is properly vested with the power and authority to make law, whereas, for the most part, judges and courts lack the relevant democratic pedigree. In contrast, in this latest work Waldron walks back some of his stronger claims, and now argues 'if it is true that judicial review of legislation is required by the rule of law, then there is the prospect of a trade off between the rule of law and democracy' (p. 148). If judicial review is a necessary part of the rule of law (which might be a big 'if'), Waldron concedes that there is no more reason to assume that the value of democracy trumps the value of the rule of law than the inverse. However, Waldron does not concede this trade-off is to be thought of along the traditional lines, which juxtapose the rule of law with the rule of men. That is, the traditional story identifies the primary defect of law made by legislatures as the potential for legislative authority to be wielded by surreptitious actors who arbitrarily enforce their own personal preferences. The rule of law, then, promises to resolve this defect through constitutions and judicial review. The problem, Waldron argues, is that judges are people too. As Waldron puts this point, 'the rule of law also has to come to terms with the fact that laws are interpreted, applied, and enforced by people, as well as being made by people' (p. 151). This is not to say courts and judicial review have no role whatsoever, or the rule of law should be abandoned as a 'star in a constellation of ideals' (p. 2) in our understanding of what political morality requires; rather, Waldron believes that appreciating the actual conditions courts, judges, and law makers find themselves in should guide their behavior and understanding of their authority. As Waldron writes, 'It is the responsibility of the elected branches of government to form and pursue social programs on that scale. The task of the judges is simply to spot and identify particular abuses or egregious omissions, not oppose the program as a whole' (p. 154). I believe Waldron's book to be an important contribution: both to the evolving debate about the rule of law, but also prescient to many contemporary political issues. For instance, at the time of writing this review at least, former president Trump faces 91 felony counts, and has an appeal before the Supreme Court claiming absolute immunity from suit. According to the traditional story, on the surface all is as it should be – with the Court functioning to ensure no one is above the law, and that the former president sees his day in court. Unfortunately, we can see the insights from Waldron's latest book fill out the rule-of-law concerns associated with this case more fully – as it is not only legislatures we worry about becoming Hobbesian-style sovereigns, but courts as well. Indeed, since the overturning of Roe v. Wade in 2022, the rule-of-law concern on the minds of many Americans has consistently been the role of the courts rather than the role of the legislature. And many would rightly worry about the Court acting in this case to overturn precedent again. Ironically – or, perhaps more accurately, 'troublingly' – the decision in Trump v. United States (2024) seems to exacerbate both these issues at once. With the Court both solidifying its own Hobbesian-like authority by overturning yet more precedent (see also Loper Bright Enterprises v. Raimondo, 2024), while enshrining the status and actions of the president definitively outside the law. In this respect, I believe Waldron's incisive analysis to be of tremendous value to legal practitioners, scholars, and concerned citizens alike – as it helps us think about what, exactly, the rule of law as a political/legal ideal requires of our institutions and the actors within them. However, I wonder to what extent Waldron's recommendations for judges end up embracing Thayerism – the view that the court should strike down acts of the legislature only when they clearly and unambiguously violate the Constitution (Cass Sunstein, 'Thayerism', 2004, SSRN: https://doi.org/10.2139/ssrn.4215816). Although Waldron's position on judicial review may have slightly moderated in this most recent iteration of his work, it would seem mistaken to limit justices to only 'identify particular abuses or egregious omissions' in their decisions (p. 154). Indeed, given the rule of law is but one star in a constellation of ideals, it would seem better to instruct judges to consider values and principles imbued in the American Constitution (e.g. commitment to protecting human dignity) than to cabin their authority and discretion so tightly. Whatever one thinks of this final point, what is of tantamount importance is that, for Waldron, law requires interpretation. And, insofar as we grant mechanistic jurisprudence is both fictional and undesirable, that interpretation will be done by human beings – a solemn fact any account of the rule of law as a legal/political ideal must accommodate.
Eric Scarffe (Fri,) studied this question.