University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Study questions: chapter 1, “The Rule of Law”

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1. pp. 1–19
   1. Altman writes that “the first principle of the rule of law is that government must not act or operate above the law” (p. 3, second emphasis added). For the most part, the spatial metaphor of being under or above the law is clear enough. But let us try to make it clearer. What is an example of a situation in which this principle of the rule of law is violated? Ideally, this should be an example that does not obviously violate any of Altman’s other four principles of the rule of law; that is, we should give an example showing this principle to be independent of the others. (Throughout this course, your examples can be ones that you make up from scratch, except where otherwise specified, though examples from history, current events, and literature are especially welcome.)
   2. Altman specifies seven aspects of the third principle of the rule of law. What is an example of a case in which just one of these is violated? In stating your example, indicate which one of the seven aspects is violated.
   3. Explain two of the four benefits of the rule of law identified by Altman in his discussion of corruption, vengeance, individual liberty, and economic prosperity.
   4. How might it be thought that it is a conceptual impossibility for the rule of law to exist?
   5. How might it be thought that it is an empirical impossibility for the rule of law to exist?
   6. What is the contrast between substantive and legal justice? What is an example of a case in which there is legal justice, but not substantive justice? What is an example of the reverse sort of case?
2. pp. 19–35 (based on questions written by Mariko Surber)
   7. Who is Kenneth Starr, and what gave him the authority to investigate aspects of President Clinton’s past?
   8. What is the main line of criticism of Starr’s behavior as a special prosecutor, and what is the main line of response to this criticism?
   9. What are the pros and cons, from the point of view of maintaining the rule of law, of having special prosecutors?
   10. What are the three things any one of which is sufficient to make a trial a political trial?
   11. According to Altman, if a criminal trial is also a political trial (in any of the three respects), then can it comply with the rule of law? In which of the three ways does Altman say it is acceptable (from the point of view of maintaining the rule of law) for an impeachment trial to be a political trial?
3. Scalia, “The Rule of Law as a Law of Rules” (based on questions written by Joe Nickels)
   12. Scalia discusses at length the difference between “general rule of law” and “personal discretion to do justice” (p. 1176). Which approach does he believe is superior? Does he believe it is ever appropriate to use the other approach? (You should be able to answer these questions without going beyond the first paragraph of p. 1178.)
            The distinction between the general-rule approach and the personal-discretion approach is crucial, but Scalia does not offer the kind of clarifying examples that one might like to have. So, before we go on, let’s get a couple of examples on the table (drawn from later in Scalia’s paper).
            First (to give an example suggested by some remarks on p. 1183), suppose you have a law that says that contracts in restraint of trade are illegal. In other words, it is illegal for two businesses to enter into a contract with one another to reduce competition between them. (Remember: we want businesses to compete with each other, so they have to fight for customers, with lower prices, better service, etc.—so reducing competition is bad!) Now suppose you have two lawn-care providers who have made a contract with one another that restricts each of them to half of the city. (They might do this so that each has a monopoly over its half of the city.) Now suppose it is asked whether this particular contract does, indeed, violate the aforementioned law. The personal-discretion approach would involve looking at all the facts of the case and trying to ascertain, based on the “totality of the circumstances” (size of the city, demand for lawn-care services, etc.), whether the contract has the effect of reducing competition. If it does, then it’s illegal; if it doesn’t, then it’s not. In contrast, the general-rule approach would not look at the totality of the circumstances of this case, but would instead in involve applying (you guessed it) some general rule, such as “Divisions of territory shall always be regarded as reducing competition.” The rationale for such a rule might be that although some divisions of territory may not reduce competition, divisions of territory almost always do, and so it makes sense to regard them all like that rather than delve into all the facts of each case.
          Second (to give an example suggested by some remarks on p. 1186), suppose you have a federal law that says that states are not allowed to regulate interstate commerce except when necessary to maintain public safety. Now suppose you have a state law that says that trucks driving through that state cannot be more than 50 feet long, and it is asked whether the state’s having such a law is in violation of the aforementioned federal law. The personal-discretion approach would involve looking at all the facts of the case and trying to ascertain, based on the “totality of the circumstances” (state speed limits, types of terrain, volume of traffic, etc.), whether the law is necessary for public safety. In contrast, the general-rule approach would involve applying some general rule such as “Any length restriction down to 50 feet is o.k.; anything less is too restrictive.” The rationale for such a rule might be that although some length restrictions below 50 feet might be warranted by considerations of public safety, almost all of them are not, and so it makes sense to draw the line there rather than delve into the facts of each case.
            O.k.—so with this background, you should be in a better position to understand Scalia’s reasons for advocating the general-rule approach rather than the personal-discretion approach.
   13. Scalia’s first reason in support of the general-rule approach is that it promotes the appearance of equal treatment than the personal-discretion approach does. On what basis does he make this claim?
   14. Scalia’s second reason in support of the general-rule approach is that it leads to greater predictability than the personal-discretion approach does. On what basis does he make this claim?
   15. Judicial restraint is typically seen as supporting the personal-discretion approach over the general-rule approach. Why is this? How does Scalia argue that adhering to the general-rule approach is actually more in accordance with judicial restraint than the personal-discretion approach is?
   16. Scalia argues that the general-rule approach emboldens judges to perform their duty without yielding to the popular will. How, according to Scalia, does the general-rule accomplish this?
   17. What is Scalia’s fifth (and final) reason for advocating the general-rule approach over the personal-discrestion approach?
   18. What is a contemporary example, not discussed by Altman or Scalia, in which the personal-discretion approach cannot be entirely replaced by the general-rule approach? (Feel free to make anything up, using concepts as prosaic as truck lengths and so on.)
   19. How does Scalia’s preference for the general-rule approach influence his preference about what sorts of cases appeals courts should hear?