ASPECTOS VINCULADOS A LA FORMACIÓN DE TRAYECTOS

Legal pluralism presents a critical challenge to law’s rule because it reflects the contradiction that is at its heart as a proposition. On one hand, the implication of law’s pluralism is that the institution of the rule of law is necessary for social order, requiring a common bond of law to connect subjects in some union. On the other hand, the implication of law’s pluralism is that the institution of the rule of law cannot be equated in any resolute way with ‘stable order’. In short, legal pluralism, as a reminder of the subjectivity of law, reflects the disturbing problem that the rule of law cannot be closed to its subjective situation through the institution of legal order.

This problem can be seen for instance in the work of Albert Dicey, the English jurist famous for popularising the term ‘the rule of law’ in the nineteenth century.27 _{Like theorists before and after him, Dicey set the rule of law in}

opposition to a regime in which law is exercised arbitrarily by those in government.28 _{As Dicey writes: ‘It means, in the first place, the absolute supremacy}

27 _{Albert V Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1948),}

Chapter IV.

28 _{Ibid. One of the most compelling contemporary arguments linking the rule of law to the ideal of}

non-arbitrariness is made by Martin Krygier: see, eg, Martin Krygier, ‘The Rule of Law and 'The Three Integrations'’, Hague Journal on the Rule of Law, vol 1, no 1 (2009); Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’, in Relocating the Rule of Law, ed Gianluigi Palombella and Neil Walker (Oxford: Hart Publishing, 2009); Martin Krygier, ‘The Rule of Law’, in Oxford Handbook of Comparative Constitutional Law, ed Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012); Martin Krygier and Adam Czarnota, eds, The Rule of Law after Communism: Problems and Prospects in East-Central Europe (Dartmouth: Ashgate, 1999); Martin Krygier, Adam Czarnota, and Wojciech Sadurski, eds, Rethinking the Rule of Law after Communism (Budapest: Central European University Press, 2005). For one of the earliest extant arguments setting the rule of law in

or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.’29 _{As can be read in this}

quote, Dicey is especially concerned with the arbitrariness of discretionary treatment by law. Whilst Dicey does not conflate ‘arbitrariness’ and ‘discretion’, he brings the two together in opposition to the rule of law. Thus he writes, ‘the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint’, before observing:

a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.30

In formulating his concept of the rule of law, Dicey was looking across the English Channel at continental European systems of government, where he saw a wide exercise of discretion by law.31 _{He contrasted this with what he saw as a}

fundamental principle of the British constitution: that what is expressed by law should be applied equally to everyone, regardless of their position. Thus for Dicey the rule of law is about ‘equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’.32

Elsewhere Dicey sharpens his definition of ‘equality before the law’, making its point ‘the universal subjection of all classes to one law administered by the

opposition to a regime in which law is exercised arbitrarily by those in government, see Aristotle,

Politics, Book 3, Part 16. More generally, see Tamanaha, On the Rule of Law.

29 _{Dicey, Introduction to the Study of the Law of the Constitution, 202.} 30 _{Ibid, 188 (my italics).}

31 _{As Dicey observes: ‘Modern Englishmen may at first feel some surprise that the “rule of law” (in}

the sense in which we are now using the term) should be considered as in any way a peculiarity of English institutions […] Yet, even if we confine our observation to the existing condition of Europe, we shall soon be convinced that the “rule of law” even in this narrow sense is peculiar to England […] In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England’. Ibid, 188. Dicey then considers the situation of Europe in the eighteenth century: ‘During the eighteenth century many of the continental governments were far from oppressive, but there was no continental country where men were secure from arbitrary power. The singularity of England [as the only exception to this situation] was not so much the goodness or the leniency as the legality of the English system of government’. Ibid, 189.

ordinary courts’.33 _{This principle of equality before the law remains fundamental}

to a liberal concept of the rule of law.

And yet, like the Legal Realists and Critical Legal Studies scholars who would critique the rule-fundamentalism of legal formalists in the twentieth century, Dicey also recognised the essentiality of discretion in law, to ensure it remains responsive to the differences that animate everyday life. As an English Common Law jurist, Dicey was especially aware of the importance of discretion in judicial decision-making. However, like many Anglo-American legal scholars to follow, Dicey approached the tension between the need for standard measures of law (rules) to ensure equality before the law, and the need for differential treatment by law (discretion) to ensure the law remains responsive to those who are abject before it, from the perspective of a philosophical tradition that sees differential treatment as a threat to social cohesion. From this liberalist perspective, political society is formed by autonomous individuals contracting together on an equal basis. On this basis, differential treatment by the political organs of the social body is seen as a threat to cohesion, driving a wedge between individuals who are thought to be separate to begin with. With the ‘state’ conceived as a formation of individuals, who are individuals first and only then in society, the fear is that these separate individuals will fall apart if there is differential treatment. Difference is thus a primary vulnerability of the nation- state, as conceived in these liberalist terms, and the standard measure—the rule— is a primary value of law that works to ensure it does not fall apart.

Thus mindful of the importance of the standard measure of law to the liberal rule-of-law principle of equality before the law, and fearful of the challenge that discretion in law poses to this principle, Dicey set the rule of law against the exercise of legal discretion; and yet at the same time, he did not naïvely advocate a legal system without any exercise of discretion. And it is here—in his non-naïve view of how law takes place—that the crack in the proposition of ‘the rule of law’ can be seen. As the passages quoted above show, for Dicey, the rule of law ‘excludes the existence of arbitrariness’, and therefore must exclude the exercise of discretion, for the reason that ‘wherever there is discretion there is room for arbitrariness’; but with an eye to how law takes place, Dicey stopped short of an absolute exclusion of discretion, excluding only ‘wide discretionary authority on

the part of the government’. In this, the rule of law, set in opposition to arbitrariness, could not be entirely closed to the exercise of discretion, and is thus left open to arbitrariness.

Dicey’s ambivalence—setting the rule of law against arbitrariness, and yet, unable to close it entirely, leaving it open to arbitrariness—does not reflect his shortcomings as a legal theorist. Rather, his ambivalent theorisation of the rule of law reflects a contradiction that is at its core as a proposition, making the rule of law both necessary and impossible. There is a passage in Thomas Hobbes’ Leviathan that provides a striking image of this ‘problem’. Peter Fitzpatrick draws attention to this image in his reading of Hobbes, where he addresses how (citing Hobbes):

the very laws made by Leviathan, the civil laws, are found in a sense to bind Leviathan, for, just as ‘men’ have been able to create a sovereign Leviathan, ‘so also have they made Artificiall Chains, called Civill Lawes, which they themselves, by mutual covenants, have fastened at one end to the lips of that Man, or Assembly, to whom they have given the Soveraigne Power, and at the other end to their own ears’.34

The image of a chain connecting subjects and sovereign evokes a relationship that recognises the supreme authority of an institutional expression of law, whilst binding the institutional organ of articulation—the lips of the sovereign—to the bodies of its subjects, whose every movement pulls upon, persuades, aggravates, and no doubt slurs its expression of law. If this is the ‘objective’ institutional structure of the rule of law, whereby both ruler and ruled are regulated by a common bond of law, then it is an institution that is not set over and above the heads of its subjects in a detached way, but is attached directly to their every push and pull.