John Locke, in the second of his Two Treatises on Government (1689), emphasized the importance of governance through « permanent laws established, promulgated, and known to the people. » He opposed this to domination by « temporary arbitrary decrees » (Locke 1689: §§ 135-7). Now, the term « arbitrary » can mean many different things. Sometimes it means « oppressive. » But when Locke distinguished the rule of established laws from arbitrary decrees, it was not the oppressive feeling of « arbitrariness » that he had in mind. In this context, something is arbitrary because it is temporary: there is no notice of that; The sovereign simply discovers it while he is participating. It is the arbitrariness of unpredictability, not knowing what one can count on, provided, as Locke (1689: § 137) said, to be subject to all of someone`s commercial transactions, the great goal should be certainty: . It is more important that a rule is secure, as if the rule were defined one way and not the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p. 153 (cited in Bingham 2010:38)) No account of the rule of law is complete if it does not mention how this ideal is frowned upon. The glowing history of the rule of law in the works of thinkers such as Aristotle, Locke, Dicey, Hayek and Fuller was joined by opponents of legality such as Plato (in The Statesman), Thomas Hobbes (at least if the rule of law is to take us beyond the rule of law) and Carl Schmitt in 1923 (in his attack on parliamentarism and the liberal hypothesis, that rules may prevail even in conditions of endemic crises). However, most people who value the rule of law do not accept this approach. If a law is properly drafted (if it is clear, understandable and generally expressed) and is promulgated and promulgated prospectively, and if it is administered impartially and with due process, they will describe this as a perfectly appropriate exercise of the rule of law.
In fact, this is what many scholars mean by the rule of law: people are governed by measures that are usually established in advance and also applied according to the conditions under which they were publicly proclaimed. The argument that it should be set aside because it does not sufficiently contrast with the domination of the people seems perverse. He recognized that some cases were so difficult that they could not be dealt with according to general rules – cases that required the concentrated insight of some judges; He used the term epieikeia (sometimes translated as equity). However, these cases should be kept to a minimum, and legal education and legal institutions should continue to play a role in how they are handled. Aristotle`s discussion of the general appropriateness of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994). Although many jurists follow Raz 1977 and believe that the rule of law is a purely formal/procedural ideal, others believe in adding a more substantial dimension. They do not believe that it is possible to clearly separate our political ideals, as Raz seems to assume. At least the formal/procedural aspects generate some momentum in a substantive direction.
It is often said that generality – proceeding according to a rule – contains the seed of justice (Hart 1961: chap. 8). And stability, publicity, clarity and foresight indicate a fairly fundamental link between the rule of law and the conditions of freedom. However, we must be careful to distinguish between the supposedly substantive requirements of the rule of law and the specification of the deeper values that underlie and motivate the ideal also in its formal and procedural requirements. (1) Wartime governance necessarily required the full mobilization and management of all the work and resources of society. Hayek warned in 1944 against maintaining this type of administration in peacetime. He eloquently argued that in normal times, a society does not need to be managed, but should be governed – and its inhabitants should be largely left to fend for themselves – within a framework of general rules established in advance. These rules would appear impersonal to protect people from each other, as they would not target any particular person or situation, and their operation would not depend on the government`s expectations of the particular effects of their application. However, this lack of specific knowledge on the part of the government would be offset by the fact that the rules would provide a framework of predictability for ordinary people and businesses. They know that they are not harassed by the state, as long as they act within the framework of general and impersonal rules. Human freedom, according to Hayek, did not exclude all state action; But this requires that the government`s action be calculable.
Generality is an important feature of legality, which is reflected in the long-standing constitutional antipathy to attainder bills. Of course, the law cannot function without special ordinances, but as Raz (1979 [1977]:213) points out, the general public requirement is generally understood to mean that « the creation of certain laws should be guided by open and relatively stable general rules. » These rules themselves should be impersonal and impartial. To what extent should the rule of law have the role of eliminating or reducing discretion in how a society is governed? Some jurists, such as Dicey (1885) and, to a lesser extent, Hayek (1944), insist that formal discretion is inherently contrary to the rule of law. Others, such as Davis (1969), condemn this position as extravagant, arguing that discretion is indelible in the modern administrative state. The rule of law is not about removing discretionary powers, but about ensuring that they are properly drafted and approved, and that the application of judicial rules and procedures is respected in cases where freedom and well-being are most at stake. The meaning of what good legislation and good administration require, conveyed by the principles of the rule of law, is sometimes criticised as archaic. Supporters of the rule of law often think in terms of clearly worded and forward-looking measures, proclaimed as norms that stand on behalf of the community as a whole and can provide a publicly acknowledged framework for their actions and actions. But this is not how law really works in the modern world. As Rubin pointed out in 1989, much of modern legislation is simply a framework that requires legislative drafters to develop much more detailed rules that are communicated to the public – if necessary – through much more complex and nuanced forms of communication than those contemplated in traditional models of the rule of law. For example, the principles contained in the inner morality of Fuller`s Law of 1964 – see section 3.6 above – may be recipes for producing laws favorable to legalistic concerns for clarity and predictability. But this has little or nothing to do with how the law actually works, or how legislators communicate with agencies, and agencies in turn communicate with those whose actions and companies they oversee (Rubin 1989: 397-408). Consequently, by insisting that positive law was subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty.