• Video

The Rule of Law as a Law of Rules

What does it mean for judges to respect the “Rule of Law”? Justice Antonin Scalia gave this question serious thought. In his famous law review article, he argued that judges need more than a vague assumption about the Rule of Law. They need actual clear and predictable rules on which to base their decisions and, moreover, they need to specify what these rules are and why they are using them. https://youtube.com/watch?v=movkRsNxCq0


The Rule of Law as a Law of Rules By Antonin Scalia Published in the University of Chicago Law Review Fall 1989 Before Supreme Court Justice Antonin Scalia was a judge, he was a law professor. In both the classroom and the Court, he thought carefully about the structure and function of the American legal system. In one of the most famous law review articles of all time, Scalia advocated for a judicial approach that he called “the Rule of Law as a law of rules.” Scalia observes that when the US Supreme Court or a state Supreme Court decides a case, they determine the outcome for those particular parties AND describe the mode of analysis that will be used in future cases. “By making the mode of analysis relatively principled or relatively fact-specific, the courts can either establish general rules or leave ample discretion for the future.” The common law system left ample discretion for the future. It developed over hundreds of years, on an incremental case-by-case basis. Judges and rulers would consider circumstances and deliver a verdict. Future judges were free to reconsider these principles and decisions based on new circumstances. Justice Scalia objects to this approach in modern jurisprudence, both for practical and theoretical reasons. Practically, Scalia argues that wide judicial discretion can easily create an appearance of unequal treatment. He writes, “When one is dealing, as my Court often is, with issues so heartfelt that they are believed by one side or the other to be resolved by the Constitution itself, it does not greatly appeal to one's sense of justice to say: "Well, that earlier case had nine factors, this one has nine plus one." Much better [...] to have a clear, previously enunciated rule that one can point to in explanation of the decision.” The Supreme Court hears only a tiny fraction of litigated cases. The rulings on each one of these set a precedent for thousands of cases heard by lower courts. The rules set by these precedents need to be as clear as possible for predictability, a key component of just laws. People need to know how a law will be interpreted and enforced. When a justice posits a rule as the basis for his decision, it constrains both lower courts AND the justice himself. The virtue of judicial restraint rests on the judge’s ability to follow clearly established rules while analyzing different fact patterns, regardless of personal preferences. This also enables judges to follow the law, even when it might be unpopular. A rule is an impartial shield for a judge to stand behind. On the theoretical side, Scalia argues that when appellate judges cannot find an answer in the law but base their decisions on the “totality of circumstances” then they are not really exercising their judicial role. “At the point where an appellate judge says that the remaining issue must be decided on the basis of the totality of the circumstances, or by a balancing of all the factors involved, he begins to resemble a finder of fact more than a determiner of law. To reach such a stage is, in a way, a regrettable concession of defeat—an acknowledgment that we have passed the point where "law," properly speaking, has any further application.” Justice Scalia acknowledges that no general principle will ever perfectly address all potential cases but a judge should try to follow the clear meaning of the law as closely as possible and propose conclusive rules that align with the text. “When one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation.” The argument of “Rule of Law as a Law of Rules” is still as relevant today as it was when Scalia published it in 1989. It raises important questions about the role of the judiciary and the development of the law.

Related Content