Jeremy Waldron (and F. Scott Fitzgerald?) on the Rule of Law
posted by Jeffrey Lipshaw
In this wonderful period of time after the end of classes, and randomly looking at pieces on the Rule of Law far less mystical than my own ruminations, I happened upon Jeremy Waldron’s reflections (Is the Rule of Law an Essentially Contested Concept (in Florida)? in Law and Philosophy 21:137-164 (2002)). He was inspired by the repeated use of that phrase by both sides in the dispute over the 2000 Florida Presidential vote count. This is a wonderful approach: he takes a small segment of a real world issue, and unpacks it to the core, and in the process, makes a far more universal observation about truth and argumentation. I suppose the only down side of the approach is that it sounds topical, but it’s really not.
Professor Waldron draws on the work of linguistic philosopher W.B. Gallie to treat “the Rule of Law” as an “essentially contested concept.” What this means is that the concept being bandied is, at its core, not susceptible to a single, crisp, resolution, even though participants in the argument seem to be contending that it is. Such a concept, like “the Rule of Law” or “Justice” or “democracy” or “Jewish” (my particular addition to the list) is both normative and complex, such that there is room for contestation within the concept.
Is this another way of seeing F. Scott Fitzgerald’s dictum from The Crack Up (1936), particularly when you look at the entire quote? “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function. One should, for example, be able to see that things are hopeless yet be determined to make them otherwise.” How can something be true and not true at the same time? As Waldron observes, this is usually the point at which the relativists or radical indeterminists step in to say there are no universals, but he opts instead for the more difficult (and Kantian) view, answering in the affirmative the following questions: “Is it possible to engage in one of these debates [e.g., about whether a particular decision affirms or undermines the Rule of Law] as a partisan of a particular view but also as a theorist who knows why disputes of this kind are intractable? Can one acknowledge that a concept is essentially contested and still claim that one’s own view is right and one’s opponent’s view wrong?”
The fundamental paradox of the Rule of Law is that a system of laws overcomes the rule of men. The Rule of Law is supposed “to supersede the role of human discretion;” nevertheless, without people, “how can we make the law rule?” I admire (and share) Professor Waldron’s optimism, even about something as intractable as the Florida dispute:
My point at this stage is just to emphasize. . .that disputation can make things better whether or not the participants are in position to associate that process with anything like the idea of essential contestability. Perhaps it is best to say, then, that we should call an idea essentially contested when we find that contestation about its definition helps deepen and enrich our sense of what is at stake in a given area. We should not suppose that this deepening and enriching effect depends upon a prior characterization of the concept as essentially contested or that it depends upon the parties accepting such a characterization. Their arguments play a part in the process whether they do so self-consciously or not.
In other words, unlike the participants who are citing the Rule of Law instrumentally, we third-party observers see something that we can call the Rule of Law even in the bizarre twists and turns of what became Bush v. Gore.
December 5, 2007 at 6:29 am
Posted in: Legal Theory, Politics
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Responses (1)
Patrick S. O'Donnell - December 5, 2007 at 9:57 am
I think Waldron’s point (at any rate, his conclusion)–and yours too–was earlier and well made by Timothy A.O. Endicott in his indispensable (i.e., for people interested in such questions) book, Vagueness in Law (New York: Oxford University Press, 2000), which makes clear that it is an issue deeper (or at least more) than the notion of “contested concepts.”
Vagueness and indeterminacy (of degree) are ineluctable features of the rule of law (‘ineliminable from a legal system’) and do not necessarily undermine the rule of law ideal.
Please see Endicott for the complete argument.
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