Marston on the Rule of Law
Brett Marston has a very smart post on the relationship between the rule of law and judicial philosophy on Marstonalia. Marston adopts my simple model of judicial philosophy, which posits that judicial attitudes be placed on a real line that runs between realist and formalist, as illustrated by the following diagram:
__________Judicial Philosophy
__________Realist__|
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________Formalist__|
Marston argues that somewhere along this real line there is a threshold for the rule of law. So:
_______The Rule of Law Threshold
__________Realist__|
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___________________|__--Rule of Law Threshold
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________Formalist__|
In other words, Marston argues that moderate realism is consistent with the rule of law. This is a very interesting and important question. My intuition is that Marston is partly right and partly wrong. It depends on a variety of factors. Here is a partial list:
- –Ideological Consensus. The greater the degree of ideological consensus in a given polity, the more that legal realism will be consistent with the rule of law. This is because ideological consensus will interact with legal realism in two important ways: (1) in polities with a very high level of ideological consensus, instrumentalist judging will be predictability (despite departures from precedent, the plain meaning of the legal texts, etc., (2) likewise, in high-consensus polities, the realist judging will not itself be politically controversial. The rule of law requires that judicial decisions be relatively certain and predictable, and those criteria can be satisfied by a realist judiciary if the judges share a common political ideology.
–Consistency in Judicial Philosophy Even in a society with a high degree of ideological consensus, the rule of law will be undermined if different judges have different judicial philosophies. So if we had a judiciary componsed of 10% extreme realists, 40% moderate realists, and 50% extreme formalists, this would undermine the rule of law–because different judges would be using different theories of statutory and constitutional interpretation, stare decisis, and so froth. A judiciary composed of 90% moderate realists, with 5% extreme realists and 5% extreme formalists might better serve rule of law values–even though its average formalism score was lower.
–Rule of Law Tradition. Legal systems may transition from formalism to realism and back. A long tradition of formalism will build a reservoir of predictability and certainty in the law. During a transition from formalism to realism, this reservoir acts as a depletable resource. Moderate realism may be quite consistent with the rule of law under these conditions–although as the reservoir of predictability is gradually depleted, rule of law values may become more and more threatened.
These are just off-the-cuff tentative suggestions. Undoubtedly, a much richer story could be developed. Read Brett’s post.