The Rule of Law, The Rule of Courts, and the Rule of the State

Fuller on the Limits of Legality and of Judicial Review

La dernière démarche de la raison est de reconnaître qu’il y a une infinité de choses qui la surpassent. Elle n’est que faible si elle ne va jusqu’à connaître cela.

(“The last step that reason takes is to recognize that there are an infinity of things that lie beyond it. It is but feeble if it does not go so far as to know this”).

— Blaise Pascal, Pensées (Sellier 220)

When one reaches un certain âge, it becomes painfully obvious that the same fallacies, refuted in every generation, nonetheless persist and indeed flourish, solely because there is perpetual political demand for them. Struck down to the earth, they rise again like Antaeus, stronger than before.

One such obvious, indefensible, but remarkably persistent fallacy is the equation of the rule of law with the rule of courts. The fallacy was last seen rampaging in the wild in the aftermath of Trump v. United States, when many falsely equated presidential immunity with presidential exemption from the constraints of law — an equation ignoring that immunity is merely a privilege against being subject to judicial process. As the opinion for the Court correctly observed, “[t]he essence of immunity is its possessor’s entitlement not to have to answer for his conduct in court” (emphasis added; internal quotation omitted). But immunity does not exempt its possessor from the rule of law, despite many hysterical assertions to the contrary. The rule of law governs, even when the particular institutions that we call courts happen to lack the jurisdictional competence to enforce that law. (In classical terminology, as I wrote, the law’s vis directiva remains even when judicial enforcement of the law’s vis coactiva is blocked by a special legal privilege, called “immunity.” And in any event, even the law’s vis coactiva may be enforceable by other institutions, depending on the case).

The same fallacy, in a somewhat different form, is once again abroad in the land, terrorizing not only the consumers of legacy media, but also judges and legal commentators who ought to know better. In its current form, the trope is that the rule of law is somehow threatened if courts cannot take jurisdiction to inquire into, and provide a remedy for, every instance of allegedly illegal behavior by the executive. A corollary is the belief that the rule of law will pop like a soap bubble unless the executive instantly, and on pain of contempt, “obeys” every judicial order, no matter what court issued it and no matter on what basis or in what procedural posture the order was issued. As a senior judge, J. Harvie Wilkinson III, recently suggested in a rather spectacular non sequitur, if the executive can act “in disregard of court orders,” then “the Executive’s obligation to take Care that the Laws be faithfully executed would lose its meaning” (internal quotation omitted).

In constitutional theory, this topic is often treated under the heading of “departmentalism.” As Judge Wilkinson and others explicitly invoke the rule of law, however, I will take as my focus the classically-inflected views of the American legal scholar Lon Fuller, recently mentioned in the popular press as a paragon of rule-of-law theory. Fuller is without doubt an unimpeachable defender of the rule of law. But as Cass Sunstein and I explained in a book written in 2020 (and as I continue to believe),¹ Fuller himself does not at all equate the rule of law with the rule of courts. Indeed he does not even think that all governmental action is subject to what he called “the morality of law” in the first place. He protests vehemently against “a confusion between law in the usual sense of rules of conduct directed towards the citizen, and governmental action generally,” and against “th[e] identification of law with every kind of official act.” On the contrary, he holds that “the internal morality of law … is not and cannot be a morality appropriate for every kind of governmental action.”

His examples are many, although briefly treated and consequently sometimes unclear. Among them are these:

• “The Army is a creature of law and its officers are, in a sense, officials of the government. Yet certainly it does not follow that every exercise of military command must subject itself to the restraints appropriate, for example, to a discharge of the judicial function.”

• The case of “the President conducting (with the advice and consent of the Senate) our relations with foreign countries, relations that obviously cannot be set by fixed rules of duty, if for no other reason, because they involve decisions of powers beyond the reach of our law.”

• An attempt by “the government to convert the power of the tides into electricity,” which Fuller seems to think is inherently “managerial” and thus beyond law’s domain, although his discussion here is obscure.

• The error of attempting to “accomplish through adjudicative forms what are essentially tasks of economic allocation,” such as those performed by “the Civil Aeronautics Board and the Federal Communications Commission.” The problem in such cases, the reason why adjudication is misplaced, is that “[b]y its nature adjudication must act through openly declared rule or principle, and the grounds on which it acts must display some continuity through time” - constraints that inherently allocative tasks cannot, by their nature, respect.

• As an example of the category mistake of subjecting allocative tasks to adjudicative forms, Fuller quotes an example of Judge Henry Friendly’s: “The job that Congress gave the [Federal Communications] Commission was somewhat comparable to asking the board of the Metropolitan Opera Association to decide, after public hearing, and with a reasoned opinion, whether the public convenience, interest, or necessity would be served by having the prima donna role on the opening night sung by [any of a number of famous sopranos].” For Fuller, the considerations relevant to such tasks, involving the allocation of scarce resources or (he suggests at several points) governmental grants and other benefits, are so multi-dimensional and open-ended that the decision must be necessarily unprincipled, at least to some degree.

• Most generally, Fuller warns that “as lawyers, we have a natural inclination to ‘judicialize’ every function of government.” Against the predictable charge that “without the guarantees afforded by adjudicative procedures governmental power is subject to grave abuse,” Fuller observes that “[t]his fear may underestimate the sense of trusteeship that goes with being given a job to do that makes sense and being allowed to do it the sensible way.” (As I’ve tried to put it, the argument that the risk of abuse necessarily requires judicial review not only overlooks the countervailing risk of judicial abuse, but also assumes a rather crude “bad man” theory of governmental behavior. Of course, if judges are allowed to assume that the Presidency is indeed occupied by a man they deem to be bad, even akin to “a rebel leader,” then the latter argument is weakened — although the risk of judicial abuse seems all the greater). And Fuller observes that courts using adjudicative procedures are hardly the only institutions that can check illegality or abuse of powers by public officials.

In all this, Fuller draws two distinctions, not one. The first distinction is between the rule of law and the rule of courts. Sometimes, there is law (in the sense of vis directiva) that courts nonetheless lack the authority to apply or enforce (in the sense of vis coactiva). The second distinction is between the rule of law and the extra-legal rule of the (nonjudicial) state — between law-governed official action, and types of official action that not subject to the law’s principle-based morality at all. Thus there are three categories Fuller wants us to distinguish: (1) matters subject to the rule of law and also within the purview of the courts; (2) matters subject to the rule of law, but outside the competence of courts to address, because those matters cannot be addressed under the “restraints appropriate to the discharge of the judicial function”; and (3) matters in which the very nature of the governmental action at hand is so inherently prudential, so suffused with discretion, irreducible judgment, or the necessity of allocating scarce resources in ways that cannot be reduced to questions of right, that the very enterprise of governance through general and rationally principled legal rules is misplaced. In both the second and third categories, courts have no role to play, either because there is law but not law that can be enforced through the forms and procedures that courts properly use, or because the situation involves types of governmental action over which the law properly has no sway in the first place.²

To be sure, Fuller is a natural-law theorist of a certain kind, and there is no hint in his writing that in the last category, governmental action may commit, say, intrinsic evils in pursuit of its prudential, managerial or allocative ends. He is not arguing for a domain exempt from all side-constraints of natural and divine law. But he is arguing that, assuming such constraints and within those constraints, there is a domain within which the ultimate mode of governmental action is a different sort of mode than ordinary governance according to legal rules and law’s inner morality. For Fuller, legality inherently aspires, at least as a regulative ideal, to being rational and principled; legal rules are ordinances of reason for public-regarding ends.

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.

1. I do not claim to speak for Sunstein here. His most recent discussion of the rule of law, published in 2024, does not mention the limits or boundaries of the rule of law, discussed at pp. 90-94 of our 2020 book.

2. Furthermore, even within the domain properly subject to the internal morality of law, Fuller shows at length that there are tradeoffs and tensions among the criteria or desiderata or principles of legality — one of his examples being that retroactive legislation, although in itself an affront to the rule of law, “can in some instances serve the cause of legality.” Sunstein and I discuss these tradeoffs at pp. 99-103, arguing that “Fullerian principles, however valid and appealing, have limits of both scope and weight.” (The caveat in my first footnote above applies here as well). Another example is that due process of law does not, in itself, require a separation of legislative, executive and adjudicative powers or responsibilities — as the Supreme Court has frequently recognized.