Paul L. Caron

Monday, April 9, 2018

The Rule Of Law Is Not A Rule Of Law: Thoughts On Solum And Meyer

Pardon me while I diverge from the topic of legal education to talk about something abstract like "the rule of law," provoked by recent work of two of my favorite legal educators.  

Solum-lawrence_1On April 4, Larry Solum (Georgetown) delivered the Regula Lecture at the University of Akron on "Surprising Originalism", which you can watch here.  I am always interested in what Larry has to say, first, because we share some common interests in language and philosophy, and, second, because he delivers it so well.  If I can summarize his point quickly, it is that (1) sensible originalism is possible if we look not at the founders' intentions, but what the words of the constitutional text actually meant at the time they were uttered; and (2) that originalism in constitutional interpretation is preferable to alternatives like the "living constitution" because the former is more likely to preserve the rule of law - that is, as a restraint on rule by pure power and might.  Larry's particular contribution is the application of the work of the philosopher of language H.P. Grice to the constitutional text - looking not merely at the semantics of the sentences as written, but at their pragmatics as well.  At the time they were written, what did they say but, more importantly, what did they implicate to the public that would have read or heard the words?

I am not a constitutional scholar, but I have my own reasons for being interested in Grice.  Robin Bradley Kar and Margaret Radin have just placed the first Harvard Law Review article on contract law in over ten years.  They use Grice's principles to argue that extensive boilerplate and click-throughs in consumer and other contracts ought not to be considered part of the parties' actual agreement.  I wrote a response, not necessarily disagreeing with the policy issues regarding boilerplate, but taking issue with, among other things, the references to Grice.

I didn't take issue with Larry Solum's point (1) above, at least in terms of thinking about constitutional meaning as guided by Grice.  What I wondered about, as I listened to his lecture, was the move in point (2) - that hewing to a philosophy of constitutional originalism was central to the rule of law.  What went through my head was a line I have used before: "the rule of law is not a rule of law."

1864So I was delighted to see that Linda Meyer (Quinnipiac) happens to have just posted an essay that expands far more eloquently on that thought.  It is not a direct response to Larry Solum's argument; I'm the one making that connection!  Her essay is Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law.'  You can see from the abstract why it caught my eye:

This essay is an engagement with Keally McBride's excellent book, "Mr. Mothercountry: The Man Who Made the Rule of Law," and argues that the rule of law is not a law of rules, but a culture of self-restraint and humility.

Some comments below the break.

What Professor Meyer highlights are two different conceptions for the preservation of the rule of law.  The first is Sisyphusean: the restraint on power and might arises from each individual's will to self-restraint and humility.  Says Professor Meyer:

[L]ike Sisyphus, we are both compelled to chase the divine justice by self-examination and self-restraint, and we are at the same time destined to fail, for no human may ever know the divine law. We are blinded by self-love, hindered by physical and mental limitations, skewed by language and culture. The Sisyphean view of the rule of law, then, both demands self-oversight of sovereignty by divine law (and therefore embraces colonial universalism) and condemns that same oversight as imperfect, acknowledging that every attempt at curbing human greed and power is both necessary and doomed to fail.

The second conception is that of the "Clockmaker." Referring to McBride's history of the role of James Stephens and his son in the administration of British colonial rule, Professor Meyer observes: 

Stephen fils despaired of his father’s idea of the rule of law as conscientious self-restraint. Instead, he turned to science. Like Bentham, he desired a law that would rely on power to balance power mechanically and artificially, rather than figuring law as a self-abnegating Hercules.

I think Solum and Meyer might have the same end in mind:  how to check the rule of force and maintain the rule of law.  Larry Solum's view is a subtle and sophisticated conception of Clockmaker; it looks for, if not a scientific means (as in corpus linguistics), at least a principled means of applying the rules.  But I very much like Linda Meyer's so much more elegant expression of my view that the rule of law is not a rule of law:

The rule of law is a practice by self-examining, self- restrained people who care about the vulnerable and who also think about how actions can be articulated in words that move and shift and yet are passed down in rules, principles, and narrative from the past into the future in an attempt to promise, to keep one’s word, to respond “similarly” in “similar” cases, to not play favorites, to be fair. Good judges roll the stone up. And then they do it again, on a slightly different slope, as the mountain and the stone both keep changing.

And now back to our regularly scheduled programming.

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How is a Meyer-type theory of self-restraint in law "finding" rather than "making" impacted by recent suggestions (evidence?) that we all suffer from implicit biases that are effectively immune to debiasing techniques? Do we simply accept that some, perhaps consistent biases will infect the application of law by humans? Maybe implicit bias is a problem of both originalism and living constitutionalism equally, but it seems to me that the latter may be more susceptible to the pernicious effects of implicit bias, no?

Posted by: Jason Kilborn | Apr 9, 2018 9:39:47 AM