Adrian Vermule writes: To a surprising degree, our current law itself reflects or tracks Fuller’s account of the limits of legality, although not perfectly. The text of the Administrative Procedure Act not only exempts the President as such from its controls, but also carves out various exemptions — sometimes in general, sometimes only from particular procedural obligations or procedural forms — for “courts martial and military commissions,” for “military authority exercised in the field in time of war or in occupied territory,” for “military or foreign affairs function[s] of the United States,” for “matter[s] relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” and for matters relating to allocative tasks such as “initial licensing” or “claims for money or benefits.” All this fits Fuller’s picture like a glove. So too, as Peter Karanjia was the first to point out, the law of reveiwability can easily be understood in Fullerian terms. Very roughly, it covers cases in which statutes themselves preclude judicial review; cases in which judicially-manageable standards are lacking because “statutes are drawn in such broad terms that there is no law to apply”; and cases in which, even if there is law to apply, nonetheless “tradition, case law, and sound reasoning” put certain classes of governmental decisions, such as decisions not to enforce or to prosecute, beyond the limits of judicial review.
More broadly, in both administrative law and constitutional law proper, a melange of doctrines and principles limit the scope of judicial review. These include the political question doctrine (which also, in part, asks whether there are “judicially manageable standards” for review); the law of standing; sovereign and official immunity; and traditional limitations on the nature and scope of equitable remedies, such as the principle that Presidential actions are not generally a proper subject or target of injunctive relief. Especially Fullerian, perhaps, are two rather neglected doctrines: first, “the well established rule that the Government be granted the widest latitude in handling it own internal affairs,” and second, a strand of caselaw holding that courts exercising the federal judicial power may not assume or be given administrative functions. Underpinning all this is, as Justice Scalia once put it, a “traditional respect for the functions of other branches” - a diffuse ethos that, although hard to state in precise terms, is for that very reason an indispensable accompaniment to the judicial task.
In all of these cases, the limits of the law are not forced upon law from the outside, as it were. Rather these are doctrines and principles internal to the law, in which the law itself recognizes its own limits, and properly so. Just as, for Pascal, the last achievement of reason is to recognize the point beyond which reason cannot go, so too the highest respect for the rule of law is found in Fuller’s recognition that the rationally-grounded internal morality of law itself entails limits both on the rule of courts and the rule of law. Fuller, then, distinguishes between and among the rule of courts, the rule of law (partially lying outside the courts), and the rule of the state, and insists that we not confuse their respective domains. In my view this clear-minded account of law’s limits, and a fortiori of the limits of courts, is itself the highest possible tribute to the rule of law, which loses its true nature unless those limits are recognized and respected.
Grok says:
- Research suggests the rule of law is broader than just court enforcement, encompassing legal governance by various institutions.
- It seems likely that the rule of law can exist even when courts lack jurisdiction, such as in cases of presidential immunity.
- The evidence leans toward distinguishing the rule of law from the rule of courts, with classical legal theory supporting combined powers for the common good.
- There is debate over whether courts must always enforce the law, with some arguing judicial supremacy is essential, while others, like Adrian Vermeule, see it as limiting.
- Matters subject to the rule of law and within the purview of courts: These are cases where courts can review and enforce legal principles, such as contract disputes or criminal trials.
- Matters subject to the rule of law but outside the competence of courts: These include actions like executive decisions in foreign policy or military commands, where the law guides behavior but courts lack jurisdiction or the appropriate tools to intervene.
- Matters not subject to the rule of law at all: These are managerial or discretionary actions, such as allocating scarce resources (e.g., deciding which sopranos perform at the Metropolitan Opera), where legal principles are less applicable, and decisions are inherently unprincipled due to their complexity.
Aspect | Rule of Law | Rule of Courts |
|---|---|---|
Definition | System where laws govern, ensuring legality and justice for all, including leaders | Courts as primary enforcers, interpreting and applying laws |
Scope | Broad, encompassing legal governance by various institutions | Narrow, focused on judicial enforcement |
Examples | Legal guidance for executive actions, like foreign policy or immunity cases | Court trials, judicial reviews, contract disputes |
Theoretical Basis | Classical legal theory, emphasizing common good and combined powers | Liberal legalism, emphasizing separation of powers |
Limitations | Can exist without courts, as long as legally guided | Limited by jurisdiction, e.g., presidential immunity |
