While we do not always agree with the outcome of every case, we must respect the judges and court staff who work daily to illustrate and uphold the rule of law. Thanks to recent decisions, we have seen the tangible results of this work. Does it make sense to use the rule of law to assess how a society responds to emergencies? It is often assumed that emergency situations require more restrictive and procedurally complex forms of State action than those normally required. In fact, a number of possibilities have been discussed (Scheuerman 2006). The first is to insist, in the name of the rule of law, that existing constitutional guarantees remain in force; After all, they were developed for this, and in these situations they are the most urgent. Alternatively, in an emergency, one could count on a general spirit of flexibility and circumstantial sensitivity in government action, which is also encouraged in normal times. With this second option, the rule of law is not a major obstacle to the flexibility of state action in the face of threats. As a third option, one could try to preserve something like the rule of law by establishing in advance specific legal rules for emergency situations – for example, rules that suspend ordinary guarantees of civil liberties or give officials broad discretion for measures that would normally be regulated by general legal standards. (Machiavelli proposed a version of this in his Discourses (1517) and praised the institution of the dictator in the Roman Republic.) This option has the advantage of predictability; but its drawback is that it advocates a kind of lighter rule of law that can eventually infect or replace the concept of the rule of law that is supposed to be normally applicable. All of these cases were closely monitored and reported. They have passionate supporters on all sides. They took place in different parts of the country.
The American democratic system is not always based on simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that without constitutional amendment, even a majority should not be allowed to change it. (1) Wartime governance necessarily required the full mobilization and management of the entire workforce and resources of society. Hayek warned in 1944 against maintaining something like this kind 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 people should be largely left to fend for themselves – within a predetermined framework of general rules. These rules would work impersonally to protect people from each other, as they do not target a particular person or situation and do not depend on any government expectations for their activity, which would be the particular impact of their application. But this lack of specific knowledge on the part of the government would be compensated by the fact that the rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be harassed by the state, provided that they acted within the parameters of the general and impersonal rules. Human freedom, Hayek said, did not preclude any action by the state; but the government`s action must be predictable. As we saw in the hayek discussion (1973), the other side of the coin is an insult to legislation, precisely because its adoption seems to represent obviously and undeniably the rule of powerful civil servants.
Legislation is a matter of will. The legislative process produces the law simply by asking a group of people in an assembly to decide that a particular law should be produced. And this is precisely what men – powerful politicians – are doing in whose power the rule of law is supposed to be an alternative. The sense of what good legislation and the proper administration of justice require, mediated by the principles of the rule of law, is sometimes criticized as archaic. Proponents of the rule of law often think in terms of clearly articulated and forward-looking measures proclaimed as norms that stand on behalf of the entire community and can provide a publicly recognized framework for its actions and transactions. But that`s not really how the law works in the modern world. As Rubin pointed out in 1989, much of modern legislation is simply a framework that empowers agencies 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 provided for in traditional models of the rule of law. For example, the principles contained in Fuller`s 1964 domestic legal morality – see section 3.6 above – are recipes for creating laws that address legalistic concerns about clarity and predictability.
