Assess whether the fraud exception to the principle of the autonomy of the letter of the credit strikes the right balance between commercial fairness and commercial certainty
It is an axiomatic feature of discourses on the rule of law to exhibit a lack of clear delineation of what is rightly to be decided as within its institutional features. There is no one right formulation of the rule of law and therefore analysing it in light of its contributions towards a state that embraces democracy, a not altogether uncomplicated concept, is never going to be logically explicit. In a very crude manner we can identify a sort of Rawlsian divide in the idea of a formal and substantive rule of law . The limitations of space and time mean that we will have to accept this as a crude approximation which does a great injustice to the varying forms of the rule of law . The current international cache of the rule of law as exhibited by its proclamation in socialist countries like China , the almost iconic status for some of the writers in post-communist and autocratic countries in the middle-east and the very fact that it transcends philosophical divides such as naturalism, positivism, liberalism, federalism, socialism and many other dominant discourses mean that any analysis of the rule of law and its relationship with democracy is going to through up some very diverse opinions. In this essay I have chosen to concentrate on the dominant conceptions of the rule of law in answering whether or not it promotes or restricts democracy.
Contemporary legal writers seem to agree that as it stands at the moment the rule of law is situated somewhere between the austere pre-Dworkin and Fuller era of positivism that still had a very Lockean influence and the complete packing of the concept of the rule of law with political and moral ideals to effectively change it to the rule of good law . Tamanaha has exposed theories of the rule of law that have run since pre-christian cultures (notably the Athenian culture as represented by Plato and Aristotle) through the middle ages to modern day post-enlightenment western culture. In one sense this dialogue is incredibly illuminating because it shows that the rule of law distinctly exists exogenously from the idea of democracy. However, when Aristotle stated that ‘law is reason unaffected by desire’ whilst he wasn’t concerned with democratic ideals as we currently recognise it he was more astutely concerned with the fact that humans added a dimension of the ‘beast’ to adjudication, namely that they couldn’t be trusted to arbitrate in a state because they wouldn’t be consistent but rather prejudiced and subject to the caprice of the moment. This idea is the kernel of early positivistic ideas on the formal nature of the rule of law and was summed up by Rawls:
‘The correct rule…is regularly adhered to…by the authorities. This impartial and consistent administration of laws and institutions, whatever their substantive principles, we may call formal justice’
Whilst Tamanaha and Rawls in their separate ways highlight the exogenous nature of the rule of law and democracy the crucial aspect of formal accounts of the rule of law are that they are to do with the control of authority within society. In this popular view the rule of law is both amoral and apolitical; it neither supports nor promotes democracy but is concerned fundamentally with the elimination of the perceived anarchy and unfairness of arbitrary use of power. What has to be stressed at this juncture is the divisibility of this fundamental proposition which in its modern conception is best described as fundamentally liberal and traceable to the writings of John Locke. However, this discourse is separate from Legal Positivism (the idea that law is separate from morals ), Natural Law (the idea that law and legal decisions encapsulate moral judgements ) Critical Legal Studies (a collection of diverse theories that try to expose the reality of law such as the routinisation of legal practice and extra legal and moral practices that traditional accounts don’t incorporate) and many other discourses. The helpfulness of separating is in the ability to identify the variety of ways in which the rule of law has been used and criticised by these discourses. Particularly the conflation of the rule of law with positivism is most misunderstood which as Campbell argues has few things in common and perhaps suffers from an antagonism between the idea of sovereign power and the rule of law . In the same vein it has to be recognised that we don’t have the opportunity to outline what is meant by democracy in any great detail in this work. I have merely accepted it as a particular form of authority manifested by ideas as expressed by Rawls that due to the fact that the distribution of wealth, land &c... in an autocratic or highly liberal form of government will be determined by birth or natural chance that ‘we cannot be satisfied short of the democratic conception’ . Democracy empowers everyone so that opportunities are open to everyone. The use of elective representatives is an issue of ‘convenience’ but the key issue for Democracy is empowering everyone to make decisions about their society and the distribution of resources.
In more contemporary writings the rule of law is not just a high-minded principle that authority be applied consistently it does submit to an analysis of more detailed facets, it is on this lower level of abstraction that we probably find the widest level of consensus on the actual nature of the rule of law. There is a distinct mainstream view on what these facets are building on the work of writers as diverse as Finnis , Raz and Fuller who whilst coming from all spectrums of legal theories seem to agree on these features:
- Generality – Propositions are normative
- Promulgation – They must be promulgated by an identifiable body
- Prospective – i.e. not retroactive
- Clear – Rules have to be sufficiently clear to be capable of following
- Coherent – Don’t have conflicting rules, has to be consistency
- Stability – Allow people to use knowledge without changing all the time
- Application Consistent – This is the complicated one that requires that legal agents apply the rules in fact consistently and deviations are treated as such.
It is at this lower level of more substantive features of the rule of law that we start to see potential links to democracy. This is not surprising given the impetus under which writers, especially those such as Dworkin and Fuller were writing. The backlash on legal positivism in the mid-20th century following World War 2 and the civil atrocities of Nazi Germany that occurred within a society governed by laws. Writers such as Fuller and Dworkin felt then as Campbell does now that these criticisms didn’t require an abandonment of legal positivism but some form of marrying morality and law that didn’t end up being a natural law position. Hence the title of Fuller’s book ‘The Morality of Law’, he argued that regardless of the laws specific content that the rule of law and its consequent features instantiated certain moral values and therefore gave law an ‘inner morality’ . Admittedly, this conception was rejected by Raz and Hart who said that the rule of law was akin to a knife, an effective weapon but of itself not determinative of its uses however Marmor, in an insightful article, has attacked these criticisms as not giving full credit to the moral and political significance of the above facets of the rule of law. However, whilst we have seen the abstract formal version of the rule of law as mentioned earlier had very little to do with democracy, these more modern conceptions move away from such rigid divides such as the divide between the rule of law and the authority laying down the law.
Finnis is the only one who seems to explicitly state the connection between the rule of law and democracy and he argues that due to overarching background principles of liberalism that both democracy and the rule of law complement each other. He argues that the liberal ideal of people being able to create an ‘identity’ for they is supported both by the rule of law in the ways we have discussed above but furthermore is also supported by democracy. He argues for a ‘positive good of a certain quality of association and interaction between ruler and ruled’ , this isn’t just protection from despotic behaviour but is built on a ‘relationship of reciprocity’ that allows the implementation of unjust schemes. In fact, Finnis seems to argue that the very idea of constitutional government i.e. a government of laws not men is a key facet of the rule of law and that from this it flows democracy and the rule of law are mutually beneficial if not quite going so far as to say that democracy is a facet of the rule of law. Finnis in a subtly effective argument goes further to argue that the link between democratic government and rule of law is mandated because it is the only form of government that will possibly be able to tolerate the rule of law. He argues that other forms of government cannot ‘find in its objectives any rationale for adherence…to the disciplines of legality. For such regimes are in business for determinate results not to help persons constitute themselves in community’ . He quite rightly states that the rule of law does not guarantee democracy but that overall it ‘is always liable to reduce the efficiency for evil of an evil government, since it systematically restricts the government’s freedom of manoeuvre’ . This point was also made by Fuller namely that no tyranny that has existed ever met the requirements of consistency which are the essence of the rule of law.
Rawls is also illuminating in this sense, Rawls was concerned with coming up with a comprehensive theory of law based on principles such as justice, however in deciding which principles and theories to accept one would have to be in the ‘original position’ where you knew not what you would be, what sex, age, ethnicity, nationality&c… you were and then you designed a legal system. He argues out of self-interest someone in this position would choose principles that created equality. Rawls explicitly backs the discussion above of Fuller and Finnis however goes even further and starts to expand the rule of law even more. He argues that because of the vagueness of law and the consequential arbitrary nature of its application that it is only through an ‘allegiance to justice’ i.e. the application of the rule of law, that arbitrary behaviour can be subdued. Rawls is more concentrated on Justice than democracy however his second principle of justice that social and economic inequalities are arranged so that they are to everyone’s advantage and attached to positions open to all mean that the ‘democratic conception’ as discussed earlier is the only one that can do this. The reasoning is difficult to follow, spread out throughout a chapter largely concerned with other issues, however once picked out provides a more concrete relation between democracy and the rule of law. Simplified, Rawls is arguing that the rule of law promotes substantive justice, as discussed, the second principle of justice isn’t satisfied by the tenets of liberalism alone because it relies on a ‘natural lottery’ whereby opportunities in society are unfairly meted out, democracy is a way of ensuring that unless there is a way of making both naturally advantaged and disadvantaged people better off then the principle of democratic equality is to be preferred. This egalitarian notion is what Rawls sees as fundamental to the ‘democratic conception’. The link to the rule of law is tenuous but distinct from what Fuller and Finnis were arguing. The idea that both democracy and the rule of law are the objectively rational choice of someone in the original position show that they are mutually beneficial and both equally contribute to the ideal of justice. I’m not convinced that in this sense the rule of law supports democracy but it certainly does not restrict it any sense whereas quite clearly in the other cases democracy is directly supported by the existence of the rule of law.
What is clear from the modern conception of the rule of law with its multi-faceted approach and internal-set of morals is that it is no longer open to the criticisms of many legal scholars. The critics of the rule of law will generally attack the fact that the rule of law promotes democracy by arguing that in fact it promotes nothing at all, it is the proverbial ‘knife’ that Hart and Raz were talking about. However this misses the fundamental conceptual revolution that Finnis, Fuller and Rawls are putting into the rule of law. It is understandable that writers such as Hammerstrom and Hart will argue as outlined but the problem is they are failing to miss the point of the discourses above which is that unlike Austin and Bentham they are not arguing that the more a legal system promotes the rule of law the more effective the legal system , there is a tacit acceptance that the rule of law competes with other ideals and only promotes one form of good. This is very much shown by the aims of Campbell in his book who is similarly trying to defend legal positivism which due to the conflation of both legal positivism and the rule of law have lead to similar damnations of both, symmetrically Ethical Legal Positivism exemplifies what modern conceptions of the rule of law do, namely that there is a place for morals and extra-legal principles. It is clear that Postmodernist critiques and Critical Legal Studies are not to be whimsically overcome by these arguments, there is not the space for a thorough postmodernist critique but the general thrust of postmodernism is to expose the rule of law as the method of ‘neutral, non subjectivist resolution of value disagreements and social conflict’ which is made to seem ridiculous in the light of a post-modern pluralistic conception of reality that denies any fundamental values. Such a critique however wouldn’t apply in this situation, we are considering principles such as democracy and the rule of law, and both equally would be attacked by postmodernists as value-laden and conceptually similar in their pretence at conceptual objectivity. The current problem for post-modernist critiques at the moment is they are fundamentally deconstructionalist, the arguments they present can be highly pertinent but as of yet they provide no alternative and perhaps never will do.
In conclusion, the rule of law is not necessarily a corollary of democracy; they are conceptually distinct but share similar origins and aims. It is in this basis of shared aims that they can mutually benefit each other. My overall impression of the issue is that the rule of law and the democracy work best together and without each other would be less effective. The rule of law wouldn’t be adhered to by a government that isn’t democratic; illustratively this is the exact concern of contemporary writers in Hong Kong after the end of British rule and the beginning of socialist China’s rule. Concurrently democracy without the rule of law would be conceptually arguable however a government that was blatantly unpredictable and arbitrary would be removed in a democratic state because the rule of law provides a social good in itself separate from the content of the law that social good would ultimately prevail in a working democracy.
Bibliography
Books
Campbell, T, Ewing, KSceptical Essays on Human Rights OUP / 2003
& Tomkins, A
Campbell, T The Legal Theory of Ethical Positivism Dartmouth / 1996
Finnis, John Natural Law & Natural Rights Clarendon / OUP / 1980
McCoubrey, Hillaire Textbook on jurisprudence Blackstone / 2nd Ed
& White, Nigel 1999
Rawls, John A Theory of Justice OUP / 1999
Tamanaha, Brian On the Rule of Law: History, Politics, CUP / 2005
Theory
Articles
Hills, Mason The Rule of Law and Democracy in 1994 E Law Vol 1.
Hong Kong – Comparative analysis
Of British Liberalism and Chinese
Socialism
Hammerstrom, Doug The Rule of Law versus Democracy By what Authority 2002 / Vol 5 No 1
Marmor, Andrei The Rule of Law and Its Limits 2004 Law & Phil 1
Williams, S.G Indeterminacy and the Rule of Law 2004 3 OJLS 539
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