The exact content of this link between the legislator and the subject is not specified, nor is the nature of the circumstances that could lead to its breakdown. But we are told that the respect that the subject of law has for the authority of the legislature is not only essential to the existence of the law, but should not be confused with a “mere respect for constituted authority”: after all, Rex`s subjects remained loyal to him, even if they were not faithful to his law (because anyway, Rex never really made a law).17 So the fact is, that fidelity to the law is qualitatively different from reverence to authority. Even if exercised by a human person, the possession of legislative power in particular is always something to be distinguished from the possession of power in general. Indeed, Fuller suggests that the possession of legislative power exercised by adhering to his eight principles of intrinsic morality of law involves “a relationship with persons generally” and thus something that requires more than mere indulgence on the part of a legislator.18 Rather, he requires the alignment of human energies with “a particular type of realization”: which appeals to “the sense of stewardship and pride of the craftsman”.19 Some theorists distinguish between the rule of law and what they call the rule of law (see, for example, Tamanaha 2004:3). They celebrate one thing and denigrate the other. The rule of law should put law above politics. The idea is that the law should be above any powerful person and agency in the country. Domination by law, on the other hand, means the instrumental use of law as an instrument of political power. This means that the state uses the law to control its citizens, but never allows the law to be used to control the state. The rule of law is associated with the devaluation of legality by authoritarian regimes, for example in modern China. But it is the eighth principle of congruence between official action and declared domination that Fuller calls the most complex of all the desiderata that make up the inner morality of the law. For the principle deals with the relationship between law and administration; a relationship that can be destroyed or compromised in ways ranging from misinterpretation to simple bias to a lack of understanding of what is necessary to maintain the integrity of a legal system.27 The message is that the principle of congruence requires an appreciation on the part of the legal and administrative actors concerned.
the objectives that the legal system itself is supposed to fulfil. This point is particularly succinct when Fuller explains why, in his view, “the most subtle element” in the task of maintaining the congruence between law and the action of the warrant is the “problem of interpretation.” As he points out, “legality” requires judges and other law enforcement officials to apply the law “not according to their ideas or with cramped literacy, but in accordance with principles of interpretation appropriate to their position in the legal system as a whole.” 28 Echoes of the latter statement are recalled by Hart in Fuller`s 1958 response: and I have taken my place in chapter three, examining how this could be interpreted as an assertion, not only about what constitutes a significant idea of law, but perhaps also as a standard of legal validity. But in Chapter 2 of The Morality of Law, the point Fuller attempts to make concerns the links between adherence to the norms of internal morality of the law and the existence of a legal system and the legal subject`s obligation to obey. But in Chapter 4 of The Morality of Law, Fuller responds by offering a diagnosis of what he believes to be false with Hart`s fine conclusion that adherence to the principles of the inner morality of the law (or what Hart calls the “principles of legality”) is “unfortunately incompatible with a very great injustice”.51 He suggests that, While we can accept, The fact that the internal morality of the law is essentially “procedural” in nature, so that compliance with it can superficially give effect to a multitude of substantive objectives, does not necessarily mean that “any substantial objective can be accepted without compromising legality.”52 In addition to these debates about the value of the rule of law, there is in the camp of those who defend legality: incessant controversy over what the rule of law requires. I mentioned the general debates between advocates of formal, procedural and substantive concepts. There are also a number of special debates. Finally, an analytical question. What is the relationship between the rule of law and the rule of law? It can be argued – arguably controversially – that the two need to be brought together (see Waldron 2008 and Simmonds 2008). The concept of law could be understood as encompassing the fundamental elements of legality, although that identification seems all the less plausible the more substantial the concept of the rule of law. For this reason, a system of government does not count as law if it does not have the characteristic forms and processes that we associate with legality. Otherwise, we lose the sense of the institutional specificity of law as a way of governing a society.
We have seen above that Lon Fuller (1958 and 1964) envisaged a link in this direction. The same goes for Ronald Dworkin in his later work. Dworkin (2004) asked us to examine a situation in which judges and lawyers faced difficult questions of interpretation or difficult dilemmas arising from multiple sources of law. He said that in such cases, we could say that what is required by law may be different from what is required for legal reasons. This is a familiar separation (even if Dworkin thought it was narrower and more blurred than most right-wing positivists believed). But he said it would make no sense to say that what is needed as a matter of legality or respect for the rule of law is different from the legal solution in this case. To find the legal solution, we must approach the various legal and policy documents in light of our commitment to legality. Fuller makes it clear at the beginning of his engagement that, although he regards The Concept of Law as a “contribution to the literature of jurisprudence such as we have not had for a long time,” he “virtually disagrees” with every aspect of Hart`s book.43 His main objection concerns the way in which the analysis of the concept of law proceeds in terms that systematically take into account any problem of inner morality. 44 The main target of Fuller`s criticism here is Hart`s Rule of Recognition, in particular, because Hart`s presentation of this rule seems to indicate that the power to recognize valid laws is unlimited. As far as Fuller can see, it is as if Hart`s account of the foundations of the legal system “sought to exclude the notion that there might be a legitimate expectation on the part of the citizen that might be violated by the legislature.”45 Even though the principles of the rule of law are purely formal in their application, We do not like them only for formalistic reasons. More fundamentally, people value the rule of law because it takes away some of the advantage of the power necessarily exercised over them in a political community.
In many ways, the rule of law means that power is less arbitrary, more predictable, more impersonal, less coercive, even less coercive. He notes what Fuller (1964: 39-40) called a bond of reciprocity—a reciprocity of coercion—between leader and ruled, and in this sense he mitigates the asymmetry that political power otherwise brings. No one is above the law, and every man, whatever his rank or condition, is subject to the ordinary law of the kingdom and is accessible to the jurisdiction of the ordinary courts. (1992 [1885]: 114) In the second half of the 19th century, Albert Venn Dicey lamented what he saw as a decline in respect for the rule of law in England.
