Law is not the only way to try and control behavior. Psychological manipulation, brute force, and managerial direction are other alternatives. The complaints about law and lawyers are familiar. If you engage in legal processes, they can be slow, inefficient, complicated to navigate, expensive; and, in their process or in their outcomes, unjust. In the face of these complaints and the fact that we have alternatives to governance by law, why should rule by law shape some of the standards by which we evaluate the legitimacy of governments?
To be able to answer that question, we have to first understand what law is. The starting point for my response is a very simple and very thin understanding articulated by a scholar upon whose work I draw upon frequently: Lon Fuller. According to Fuller, law is “the enterprise of subjecting human conduct to the governance of rules.” A set of conditions need to be met in order for that to be possible. Rules have to take a certain form. We can’t govern our conduct on the basis of rules that are kept secret, so promulgation is needed. Neither can rules be contradictory, such that so we don’t know what to do, so rules must be consistent. Nor can rules tell me today what I needed to do yesterday, so rules must be prospective rather than retrospective.
For rules—and not, for example, the whim of officials—it is also important that there be congruence between what rules declare and the conduct of officials and legal subjects on the ground. Fuller summarises the social meaning we attribute to having the system of conduct in the following way: officials say these are the rules we ask you to follow; if you obey them, then you have our promise that these are the rules we will apply to your conduct.
There are two things to notice immediately about this way of defining law. First, actual legal systems vary in the degree to which these conditions that I briefly articulated are satisfied. Fuller noted this, too. For Fuller, a certain threshold level of congruence— prospectivity, promulgation, clarity, etc.—need to be in place for a community to credibly be talking about being in the law ‘game.’ The other thing to notice is that governing by law on his definition doesn’t require democracy, or entail respect for human rights, or say much about constraining the substance that laws can have. There are a number of different ideals and standards according to which we can evaluate the legitimacy of government. Governing by law is just one. And it is important to keep different ideals distinct.
Against the background of the complaints about the inefficiencies and costs of legal processes, and with a thin conception of what governing by law requires, why does it matter that we govern by law? I have tried to answer this question not be examining cases of success, but rather by looking at cases of failure. Put differently, we see the value of law most clearly in contexts in which a legal system fails to satisfy, partially or fully, more or less systematically, the criteria that Fuller lays out. That is, we can understand why law matters when we examine when it is absent and what is missing as a result.
The move and the impetus to look at failure is linked to another enduring interest in dynamics of conflict and repression: where the breakdown of political relationships generates the need for Political Reconciliation and Transitional Justice.
There are two cases that I will use to illustrate what is absent. One is Northern Ireland, a post-colonial context in which two deeply divided and profoundly segregated communities live in a very small geographical space. Defined by different ethno-national identities—nationalists who identify as Irish and are overwhelmingly Catholic and unionists who identify as British and are overwhelmingly Protestants—have since the partition of Ireland in 1921 navigated a history of repression, discrimination, segregation—predominantly of the Catholic minority—and navigated the violent conflict known as The Troubles. The ingenious Good Friday Agreement (or Belfast Agreement) in 1998 enshrined birth right recognition of Northern Irish citizens to identify as British or Irish or both, and it set up provisions for and achieved what in the current lingo constituted the abolition of the police. The RUC (Royal Ulster Constabulary) was renamed and reconstituted as the police service of Northern Ireland following the Agreement. Northern Ireland now finds itself in an exceptionally fragile moment as the UK government has chosen to interpret its Brexit mandate in a way which is, in my view, simply incompatible with the commitments underlying the Good Friday Agreement. The Good Friday Agreement blurred boundaries of sovereignty rather than hardened them, and relied upon recognition of a plurality of national identities, one of which remains ineliminably connected to the EU. Northern Ireland remains, predictably, the Achilles heel of the particular Brexit path the United Kingdom has chosen.
The second case is South Africa under Apartheid and during its transition to multi-racial democracy. Under the apartheid order, all South Africans were assigned into one of four racial categories and lived lives circumscribed by a legal regime predicated on a commitment to separate and unequal, where segregation and discrimination in all areas of life, education, health, living, and unemployment, and exclusion from others such as politics for Black South Africans, resulted in a country that was one of the most equal and unequal in the world when apartheid ended. The articulation of a commitment by leaders like Nelson Mandela and Archbishop Desmond Tutu at the dawn of multiracial democracy to reconciliation, shaped the rhetoric and the structure of the Truth and Reconciliation Commission that was set up.
What does failure in governing by law look like? In my examples, it looks like partial, systematic lack of congruence that disproportionately affects one community—Catholics in Northern Ireland and Blacks in South Africa. In both cases, basic human rights were violated in the substantive forms that lack of congruence took. In Northern Ireland, these included police brutality—in some cases rising to the level of unlawful state-sanctioned killing by the police—and collusion with unionist paramilitary organizations. In some instances, the police and British army constructed no-go areas in spaces that were governed by nationalist paramilitary forces. In the context of South Africa, the Final Report of the South African Truth and Reconciliation Commission investigated the killing, abduction, torture, and severe ill-treatment carried out by South African Defense Forces and police—not exclusively but including them—and summarized the ways in which the rule of law didn’t function. Part of the reason for the longevity of Apartheid was the superficial adherence to the rule of law by the national party whose leaders craved the aura of legitimacy that the law bestowed on their harsh injustice. From the mid-1990s onward, when a climate of state lawlessness prevailed, even the pretence of adherence to the rule of law was abandoned.
Against this background, we can begin to articulate why law and ruling by law, governing by law in the way that I have articulated, matters. One reason is because of the suffering and injustice that specific instances of incongruence generate in the forms of the killing, torture, and abduction referenced above. Part of what I’ve emphasised in my work is that lack of congruence—the erosion of governing by law—go beyond these immediately obvious consequences. Lack of congruence affects the contours of political relationships in four specific ways.
The first consequence is that it erodes possibilities for the exercise of agency by members of the targeted community. Following Fuller, implicit in the idea of the rule of law is the thought that individuals are responsible agents capable of understanding and following rules and answerable for their defaults. But such agency is impossible to exercise if arrest is not a function of engaging in legally prohibited behavior or if the consequence of arrest go beyond what is formally declared. And so, in profound ways, members of targeted communities in context of partial legality are simply not in a position to shape how they act with reference to what the legal rules state, because those rules aren’t reliable guides for the forms of conduct they can expect in response.
The second consequence is the undermining of transparency in a way that shields governments from critiques and entrenches injustice. When the kind of incongruence that I have been talking about is present—and present in a widespread manner—then looking at what rules permit or prohibit is simply insufficient and unreliable for knowing
A third consequence of the erosion of legality is that divisions and denial deepen. When you exist in a system of partial legality—and, in particular, when patterns of abuse disproportionately affect and are experienced by only one community—incongruence is a reality only for some and not all. When incongruence is denied by officials, tensions can also be profoundly deepened and exacerbate debates about, for example, the role of police or security forces within a community. This is because when a group that is disproportionately suffering from incongruence is also historically marginalized or experiencing other forms of discrimination and marginalization, reports of abuse are often met by what philosopher Miranda Fricker calls testimonial injustice; that is, when the testimony offered by someone is ignored, discounted, or simply not believed because of who the speaker is. In the contexts of Northern Ireland or South Africa, this was made possible because police officers were disproportionately represented by one ethnic or religious group, whether white South African or Unionists in Northern Ireland. During The Trouble, for example, only seven percent of the police were Catholic. In cases such as these, experiences with the law are uniformly positive for one community and testimony from members of the other community are discounted or not believed. Calls for reform can then be seen as either unwarranted or as personal attacks on the communities from which members of law enforcement are broadly drawn.
Finally, the consequence of the erosion of congruence that I am especially interested in, is the erosion of the conditions—and in particular, reciprocity—needed for law to function in any community. Fuller points out that an ongoing cooperative reciprocal action and interaction is needed between officials and legal subjects, in part because of the mutual restraint that governing by law demands in order for that to be possible. For legal subjects specifically, however, that restraint in turn depends on faith in law. Knowledge of lack of congruence or particular publicized instances thereof can erode or inspire other violations of law. The loss of trust also accompanies this lack of faith; an inability to take as a default presumption the lack of ill-will on the part of those you are interacting with. Violations of the rule of law can disrupt the faith in law and the corresponding willingness to trust and engage in the mutual restraints that the rule of law requires.
So, why govern by law? Because without it, people suffer. Harms and rights that would otherwise be prohibited are much easier to commit. And because relationships are damaged, accountability and transparency are undermined. Agency becomes more difficult, reciprocity becomes impossible, and conflict and divisions deepen. What I have examined here is only a very small part—maybe not even the most fundamental part, but a part—of a much larger and more complicated story of the ways in which damaged political relationships generate the need for transitional justice and reconciliation. A story—which to be complete would also need to consider the substance of law (and not just the form that laws take); the economic, social, and political institutions as well as the norms and rules structuring them within communities; the transnational aspects of current conflict and repression, both in their colonial era roots and the contemporary forms that they take; and ideology—and the tales we tell ourselves to understand the world we navigate often implicitly or explicitly discount the injustices to which our attention is drawn.
The story I have been telling is not just the story of other countries around the globe; it is also the story of us here in the United States today. This is not surprising—we are part of the global community, and we are both shaping and shaped by it. In Northern Ireland, for example, the civil rights movement that began to protest segregation and discrimination explicitly drew inspiration from the civil rights movement in the United States. More specifically, though, the concerns I have been articulating about the rule of law and its absence, about the way partial legality shapes the experiences of different groups within the same community, is an ongoing concern and reality of our past and present here in the United States. It is the story of lynching, extrajudicial murders meted out by white vigilante mobs with the complete absence of any form of due process, often with law enforcement either complicit in its commission or complicit by way of preventing its occurrence. It is at the core of complaints underlying the hashtags #drivingwhileblack or #livingwhileblack, where lists of the ordinary activities that if done while Black, and often as well brown, can lead to a 9-1-1 call, an arrest, jail time, a fine, getting threatened or, worse, getting killed, whether while you are driving an Uber or at a business meeting in Starbucks or simply existing in your own home. And against the background of George Floyd and protests his murder inspired, it is the core of conversations about police reform and calls for altering the status quo.
Ours is a story shaped by very different realities shaped by race, the different experiences that racialized peoples have with law enforcement, the impediments that people of color face in being believed—in particular by white Americans—when expressing concerns about the treatment to which they are subjected, about being believed in a way that doesn’t implicitly presume some form of wrongful action must have preceded whatever incident is in question. Like the stories I have shared about Northern Ireland and South Africa, what I have said now is a very incomplete sliver of the American story. Transitional justice is required against the background when widespread wrongdoing occurs. Such widespread wrongdoing is facilitated and enabled by the erosion of the rule of law. Our story is, through the efforts of the Equal Justice Initiative and cities like Evanston, IL, and can continue to become a story about finding ways to pursue transitional justice that we need.
Colleen Murphy
Colleen Murphy is the Roger and Stephany Joslin Professor of Law and Professor of Philosophy and Political Science at the University of Illinois at Urbana-Champaign.
