1. Introduction
Can states claim legitimacy for their exercise of political power when the exercise can be traced back to authorizing legal sources? Normally, the answer depends on the content and character of these legal sources: whether they are democratically originated,Footnote 1 necessary for crucial coordination among social members,Footnote 2 or securing everyone’s equal freedom,Footnote 3 to name a few. We rarely think—especially if one has theoretical leanings towards legal positivism—that the mere fact of legal authorization automatically lends legitimacy to state actions. Does the state’s conformity to the Rule of Law (ROL) ideal make a difference? And if so, which conception of the ROL: formal, procedural, or substantive? Posing these questions assumes a conceptual distinction between adherence to laws and ROL, and that the ROL has a moral value which the former may not have.Footnote 4 However, the way that moral value is understood in relation to the political ideal of legitimacy has received less scholarly treatment in the jurisprudential literature.Footnote 5 Some even consider it redundant to answer this question.Footnote 6 Perhaps the omission is partly due to the supposition that, from what is often received by Anglo-American analytic tradition as a more rigorous articulation of the ROL—namely, ROL understood narrowly as a formalFootnote 7 or procedural idealFootnote 8 —we can already infer that the ROL’s bearing on legitimacy is contingent at best; and if we were unsatisfied with that contingency, an appeal to some substantive version of the ROL—such as one that entails democratic governance—seems inevitable.Footnote 9 Against this background, this article proposes to locate a middle path to a necessary ROL-legitimacy connection that does not bring in a substantive conception of the ROL. To that end, I draw on a less expounded notion—pacification—to explain the ROL’s value. I argue that pacification is a task inherent in a modern state’s claim of legitimacy and the ROL is constitutive of that task. As such, the ROL is neither indifferent to whatever ends states set out to pursue nor an aspirational ideal destined to advance liberal morality.
Some clarification is in order. First, by ‘substantive conception’ I mainly refer to conceptions of the ROL as necessarily involving substantive achievements, such as justice, democracy, or a free market.Footnote 10 Surely, even formal and procedural conceptions as they currently stand have substantive implications on the content of law.Footnote 11 But these implications are sufficiently neutral about the substantive achievements just mentioned, such that the ROL so conceived remains distinct from other political ideals. The conception this article expounds is not substantive in a similar sense. In that regard, my analysis is of interest to those concerned with understanding whether illiberal and undemocratic states may claim legitimacy on the grounds of the ROL. For example, can an authoritarian state like China—which regularly rejects the universal validity of democracy and liberal values—nevertheless gain legitimacy through its certain progress in improving the quality of legal governance in the recent decade?Footnote 12
Secondly, while some theorists argue that the ROL is intrinsic to the concept of law,Footnote 13 the discussion to follow will leave this issue open and proceed with the initial assumption that the existence of a legal system or its individual legal norms does not depend on conformity to the ROL. The leading question here is whether the ROL can itself be a freestanding legitimation value for the state, on a par with values like democracy or autonomy. My inquiry is thus different from, although connected to, the issue of legal normativity, which concerns the normative force, if any, individual legal norms or the legal systems as a whole produce.Footnote 14 The two inquiries are different because my focus is on the ROL’s bearing on rendering the state legitimate, instead of the legitimacy of its laws or legal system; but they are connected to the extent that, as Max Weber notes, the modern state’s claim of legitimacy is routinely based on law—that is, its legitimate exercise of power must be traceable to a legal source.Footnote 15 Legal legitimation as such, therefore, certainly suggests that the law so invoked has, or could have, a normative connotation pertaining to the meaning of state legitimacy. That said, I propose in section 2.2 that there is a conceivable yet easily neglected difference between state legitimacy and the way legitimacy is normally understood in the jurisprudential context.
Thirdly, in this article, ‘pacification’ is a technical term that denotes the meeting of a normative condition where unilateral coercion—coercion not sanctioned by the state—is justifiably denied to individual subjects. In its normal use, however, pacification may convey the factual process in which internal conflicts are brutally suppressed by the superior military force a state deploys. I draw the technical meaning of pacification from Hans Kelsen’s exposition of law as “an ordering for the promotion of peace” by “depriv[ing] the single individual of the right to employ force but reserv[ing] it for the community.”Footnote 16 As a positivist, Kelsen hesitates to paint pacification as a task inherent in the law, merely invoking it as a likely outcome following the effective operation of a legal system.Footnote 17 His hesitation need not trouble us when I argue in section 3 that pacification is a task inherent in the claim of legitimacy, since our inquiry is not about the nature of law but about the justified monopoly of coercion.
My turn to pacification in explaining the ROL’s connection to legitimacy shifts away from the current methodological paradigm, which displays two trends. First, the ROL is conceived of as a regulative ideal of the legal system, on the one hand, and legitimacy as the expression of de jure legal authority, on the other. As a result of this first trend, the dominant conceptions of the ROL, and the discourse on the ROL-legitimacy relation, are treated as the natural extension of—and heavily shaped—by the jurisprudential debates on the function or essential features of law and legal normativity. Second, the underlying value of the ROL is articulated through a liberal notion of human dignity understood as responsible agency. Nearly all conceptions overlap on the theme that, by constraining or replacing the discretion of those acting as state agents, the ROL reduces the arbitrariness of political power, renders it stable and predictable, and thus secures an autonomous sphere for individuals, which makes rational planning possible.Footnote 18 I argue in section 2 that it is this deep liberal commitment—together with the jurisprudential approach which correlates the understanding of the ROL with the concept of law—that causes the paradigmatic responses to the ROL-legitimacy relation to oscillate between two extremes: either a conception of the ROL that maintains its distinctiveness but whose connection to legitimacy is contingent, or a conception that secures its necessary connection to legitimacy by absorbing substantive elements of liberalism, at the cost of eroding the ROL’s distinctiveness.
In contrast to the focus on the ROL’s coherence with liberal morality, I follow Martin Krygier’s teleological approach, which conceptualizes the ROL primarily as a solution to “[political] power and its pathologies” that “loom as a perennial source of threat and fear.”Footnote 19 Instead of theorizing the ROL as an aspirational ideal for the norms and institutional practices that constitute the law, this approach situates the ROL’s rise in the necessity of politics, in a way independent of the concept of law. Specifically, I show in section 4 that the principles commonly regarded as central to the ROL are best interpreted as requirements of pacification. The ROL so understood is an indispensable part of the answer to what Bernard Williams called “the ‘first’ political question,” which takes terror-relief to be the pre-condition for posing and solving further problems of a polity.Footnote 20 This methodological re-orientation redirects our focus from liberal morality to Judith Shklar’s writing on politically inspired fear—although the latter emphasis, in my reading, need not commit us to her “liberalism of fear.”Footnote 21
I apply a two-level analysis to demonstrate the ROL’s contribution to pacification under a social reality that is ever-shadowed by the omnipotent presence of state coercion. At the level where subjects’ everyday encounters with power-wielding officials take place, the ROL mitigates the former’s distrust and fear of the latter by reducing information complexity, which is achieved through shifting the evaluative focus from officials’ trustworthiness to their rule-following behaviour. At the level where legal sanctions are abstractly perceived as threats that influence subjects’ choices of action, the ROL ensures that no law is the cause for what I call ‘existential fear’. That said, I by no means suggest that the ROL can only have pacification as its sole or foundational goal, or that all other values commonly attributable to it—including the liberal ones—are derivative. Given the rich intellectual history and political practices from which the ideal descends, it is only natural that the ROL’s core criteria are susceptible to multiple—and sometimes rival—interpretations, which, as Jeremy Waldron puts it, “enric[h] and promot[e] some or all of the purposes for which the rule of law is cited in legal and political argument.”Footnote 22 In that spirit, this article shows how the idea of pacification furnishes a plausible and attractive working conception of the ROL that can coherently explain and refine its central criteria, foil potential criticism of liberal parochialism and moralism, and preserve the distinctiveness of the ROL as a political ideal distinguishable from others. We have a better grasp of the ROL’s enduring value through this reflection on its service to pacification. After all, the ROL had been celebrated long before liberal morality ascended to prominence in the explanation of political ideals, including legitimacy.Footnote 23
2. Two Visions of the ROL-Legitimacy Connection
2.1. Thin ROL and Contingent Connection
The classic, thin conceptions of the ROL centre on the formal, institutional, or procedural aspects of legal norms and their administration. According to these conceptions, notably associated with Lon Fuller, Joseph Raz, and Jeremy Waldron, the ROL requires that legal norms be general, promulgated, intelligible, non-retroactive, non-contradictory, stable, and observed by officials, as well as administered by an accessible, independent judiciary that possesses reviewing power and organizes itself around procedures that adhere to principles of natural justice and facilitate reasoned settlement of legal disputes.Footnote 24 Meeting these requirements, for the most part, is considered to enhance legal certainty and predictability, which in turn “make[s] the law itself a stable and safe basis for individual planning.”Footnote 25 Arguably, this is the most notable virtue of the ROL and where its tie to human dignity is defended, for its assumption that individuals are responsible for their actions is manifested in the demand that they be judged by rules previously laid down and communicated in advance.Footnote 26 Although Waldron notes that the procedural requirements may undermine legal certainty and predictability to some extent, he contends that they are nevertheless in line with the ROL’s respect for human dignity, given that argumentativeness is an important aspect of our responsible agency and indeterminacy is inevitable in the application of law.Footnote 27
Whereas the classic conceptions explain the ROL’s value by reference to its respect for responsible agency, none of them venture that the ROL’s constraint on legal content is sufficient to guarantee non-violation of dignity.Footnote 28 This puts into question the ROL’s bearing on legitimacy. There is, to be sure, an intuitive inference from the ROL’s promotion of legal certainty and predictability that conformity to the ROL seems necessary for achieving legitimacy: To the extent that a legitimate state cannot be one that wields arbitrary power, it seems that any state should have some degree of conformity with the ROL for it to be capable of being legitimate. In that, the ROL is, in Raz’s terms, a “negative virtue” that only serves to mitigate the risks of political power being arbitrarily exercised.Footnote 29 Eliminating arbitrariness, however, does not necessarily ensure justice, fairness, autonomy, or other virtues. A ‘necessary connection’ in this sense may as well be seen as incidental and a by-product of improved legal certainty and predictability.
This somewhat tenuous ROL-legitimacy connection stems largely from a taken-for-granted conceptual continuity between the law and the ROL. In the view of positivists like Hart and Raz, who see the inherent function of law as no more than that of behaviour-guiding, the law can serve both good and evil purposes.Footnote 30 Correspondingly, as the regulative ideal supposed to improve law’s behaviour-guiding, the ROL is instrumentally conceived as “compatible with very great iniquity”Footnote 31 and “not a moral virtue as such.”Footnote 32 Similarly, although Waldron includes “[o]rientation to the public good” as an essential feature of his more discriminating concept of law, he takes care to note that such an orientational feature is far from determinative of the question of legal normativity.Footnote 33 He too suggests that a system worthy of the attribution of law and the ROL can still be unjust and lacks legitimate authority.Footnote 34
That said, Fuller’s view may have the room for a more nuanced construct of the ROL-legitimacy relation, even though the constraint of his eight legal desiderata seems hardly sufficient to prevent a wicked legal system. This is so because, according to Fuller’s definition of law, a state-subject reciprocity is implicit in the law being “the enterprise of subjecting human conduct to the governance of rules.”Footnote 35 While this may be criticized for definitionally smuggling the idea of fidelity to law (which, for positivists, can only arrive as a conclusion after demonstrating that the law’s merit coincides with morality), a state-subject reciprocity that consists in the law’s imposition of de jure authority and the subject’s duty to obey does seem to imply a strong ROL-legitimacy connection. The question is, what is required beyond the Fullerian desiderata to sustain state-subject reciprocity of that sort? It appears that only a substantive conception that treats the ROL’s coherence with liberal morality as non-contingent can do so.Footnote 36
2.2. Thick ROL and Necessary Connection
Along the lines of the methodological paradigm mentioned above, David Dyzenhaus explicitly addresses the ROL-legitimacy connection in an approach that can be broadly considered teleological. To understand the connection, he suggests, we must start with what he calls the “Weberian Problematic”: In a disenchanted society where values are both secular and pluralistic, how can what it takes for something to be law be the focal point of subjects’ beliefs in the state’s legitimacy and thus command obedience?Footnote 37 Drawing on Jürgen Habermas’s discourse ethics, Dyzenhaus argues that a mode of governance—his conception of the ROL—that embodies the Fullerian desiderata as well as elements of democratic decision-making offers the best institutional approximation to an ideal deliberative procedure for justifying collective actions to all citizens as free and equal reasoners. The ROL understood as such confers legitimacy on the state because its legal norms through which political power is exercised represent the best, albeit interim, conclusions of what public morality requires under circumstances of secularism and pluralism. Note that Dyzenhaus identifies legitimacy with the possession of de jure legal authority, the same as how legal normativity is understood in jurisprudential literature.Footnote 38 Also, despite Dyzenhaus’ ostensible rejection of preordained moral norms that claim universal validity prior to the deliberative construct prescribed by the ROL, his account is fundamentally driven by liberal morality in presupposing legal subjects as free and equal reasoners.Footnote 39
Dyzenhaus’ substantive conception shows how the ROL’s underlying coherence with liberal morality must be pursued with full force, which necessitates the incorporation of democracy, if we want to establish a non-contingent tie between the ROL and legitimacy. This vision of the ROL is not a problem per se, although it might have a narrower purchase in societies lacking in liberal-democratic culture. That aside, accepting the methodological paradigm can lead to a more noteworthy omission that causes us to overlook a different sort of bearing a thinner conception of the ROL may have on legitimacy.
It is no coincidence that the legitimacy of the ROL and a liberal foundation go hand in hand when legitimacy is primarily viewed through the lens of de jure authority. This view sets forth a dichotomy between authoritativeness and coerciveness, and purports that the former exhausts all that can be said about legal normativity. As a result, it maintains that if the law cannot be viewed as possessing de jure authority, it is purely coercive, a “gunman situation writ large,” devoid of normative meaning, from the legal subject’s viewpoint.Footnote 40 Moreover, for the law to be purely coercive, in this view, not only must legal subjects disapprove of what the law requires, here and now, but also they could not have identified its requirement as theirs even upon appropriate reflection.Footnote 41 That is to say, they have no self-originating reason to comply with the law other than the fear of legal sanction. Since coerciveness thus understood conveys a sense of alienation, the supposed diametrical opposite—authoritativeness—must be a quality that has an anti-alienation origin. Naturally, it falls on something like the value of autonomy or an institutional manifestation like democracy to explain such an origin. This is why de jure authority seems to have a natural affinity with democratic theories.
But the cogency of the foregoing, so prevalent in the legal normativity discourse, rests on denying any residual normativity to a legal system that is largely considered coercive. The denial is questionable, however, as ample empirical studies show that fearing sanction is a chief, if not the sole, motivation for legal compliance in a society.Footnote 42 Dyzenhaus himself notes that, in the age of welfarism and the administrative state, applying general legal norms to concrete situations necessitates the frequent use of discretion by administrative and judicial officials to particularize the norms; this becomes a source of increasing alienation and coercion by the law, given the complexity of the state apparatus and how little ordinary citizens know about its internal operation.Footnote 43 Are we to think such pervasive alienation and coerciveness must bear no normative meaning? The point is, everyday life is situated with coercive factors that affect our options, but that alone is not conclusive on the question of action. Coerciveness comes in different intensity and scope, which may elicit a range of practical responses from the coercees. To some coercive demands, we may choose to yield because there are other gains, whereas some demands threaten our very existence and must be resisted most forcefully. Once we realize that our response to coercion is not fixed but admits of different possibilities, there emerges room for attributing residual normativity to even largely coercive law. And we see that not because the law’s de jure authority is recognizable upon appropriate reflection by legal subjects, but because its coerciveness is of an appropriate (or acceptable) degree that does not justify forceful resistance.
Residual normativity is not all that is hidden from the purview of the methodological paradigm. So is the unique reason-giving quality of what Judith Shklar calls the “summum malum.”Footnote 44 Dyzenhaus’ argument for the intrinsic role of democracy in his conception of the ROL illustrates this point. Dyzenhaus believes that, as a consequence of pluralism, there is not a set of preordained reasons—not even reasons about procedural matters—which command universal acceptance.Footnote 45 To stipulate, like John Rawls does, a set of reasons whose acceptance distinguishes the reasonable from the unreasonable, risks reproducing a Schmittian friend/enemy distinction within the society.Footnote 46 Because of that, in Dyzenhaus’ view, the commitment to liberalism dictates a radically constructivist approach to public morality, according to which no reasons can claim consensus or secure a permanent justificatory position on what public morality requires independently of the democratic process.Footnote 47 In other words, the necessity of democratic deliberation stems from Dyzenhaus’ worry that any admission of preordained reasons inevitably excludes individuals holding incompatible views from the status of the free and equal reasoner. Such exclusion amounts to a Schmittian moment that categorizes them as enemies of the state and is to be avoided at all costs.
Part of the cost here is the failure to notice that summa mala are distinct from other considerations, such as summa bona, in terms of their capacity to draw consensus. While our views about what social ideal should be realized tend to diverge due to our pluralistic conceptions of the good, our differences tend to converge on the priority of avoiding or alleviating extreme evils. This is so because the high stakes of suffering in extreme evils—such as prolonged physical torture—are palpable to all, and the necessity of their removal is intelligible to all, despite our divergent experience in other aspects of life. If political power is exercised in ways that precipitate summa mala, their iniquity is likely to be such that no further democratic deliberation is needed to affirm it. Moreover, for those who insist on social visions that deliberately or recklessly disregard any consequence of summa mala, there is presumably no moral loss when the exercise of political power is justified in a way that excludes their problematic visions and reasoning. Therefore, it seems to be an exaggeration to say such exclusion brings down a Schmittian division—whether someone is treated as an enemy of the state, in my view, is not to be determined by ignoring their problematic views in political justification, but by the socio-economic conditions that shape their overall experience, including, among others, whether they experience summa mala.
Dyzenhaus thus defends the ROL’s necessary connection with legitimacy on two premises: that legal normativity consists in de jure legal authority, and that no value consensus is possible in political justification. As preliminarily shown, a retreat from both premises is possible. Such a move, as we shall see next, releases the pressure for a democratic re-construction of the ROL. Underneath the threads we just untangled lies a different way of casting the ROL-Legitimacy connection in which the ROL’s distinctiveness can be better preserved.
3. Legitimacy and Pacification
3.1. The Minimum Conception of Legitimacy
Most theorists can agree, at the minimum, that a legitimate state possesses the right to coerce, but they are divided on whether that right consists in the justification of state coercion as a primary property of legitimacy or as a secondary property predicated on de jure authority.Footnote 48 In the latter, de jure authority is central to legitimacy, and it is the enforceability of its correlative dutyFootnote 49 or liabilityFootnote 50 that justifies state coercion. In the former, by contrast, the justification of state coercion entails no correlative duty or liability, however defined.Footnote 51 A claim of legitimacy primarily about justified coercion is arguably minimal compared to those that are authority-centric, because it does not purport to impose any correlative duty or liability on subjects.Footnote 52
The fact that modern states routinely claim legitimacy for their exercise of power through laws need not commit us to authority-centric conceptions of legitimacy, since, as explained above, the law can possess residual normative force even if it lacks de jure authority. On the other hand, our review of the methodological paradigm suggests a more profitable turn to the minimum conception, because the establishment of de jure authority tends to invite democratic solutions to the problem of alienation. Although the minimum conception sets a lower bar for claiming legitimacy, it is not so low as to be easily achievable or uninformative. Quite the contrary: A closer look at how the claim of justified coercion is made reveals that its truth condition can be demanding, albeit for reasons unrelated to mitigating alienation.
3.2. Monopoly of Coercion and Pacification
All modern states are presumed to claim that only the state can justifiably exercise coercion. Presumably, regardless of whether they explicitly or implicitly make further claims about their political power—as authority-centric conceptions of legitimacy describe—they can never not claim the monopoly of justified coercion, given that achieving such monopoly is what guarantees the finality and de facto authoritativeness of their decisions. However, it does not follow, from the monopolistic feature of this claim, that no individual or entity, except for the state, exercises coercion as a matter of fact—criminal organizations use coercive means to extort illicit gain from others as well. Rather, the claim’s truth condition implies that, for non-state actors, the use of coercion is unjustifiable unless it is either ex ante authorized or ex post ratified by the state. Call this the ‘unjustifiability of unilateral coercion’.
This brings us to what I call ‘pacification’, mentioned in the Introduction. Following Kelsen, I apply this term to the task of achieving a condition of relative, not absolute, peace, where the use of force is not eliminated but justifiably conditioned by the state through its directives.Footnote 53 In other words, the goal of pacification is to render unilateral coercion unjustified. Since, as just noted, the truth condition of the claim about monopolizing justified coercion consists in the unjustifiability of unilateral coercion, it follows that states are saddled with the task of pacification by their claiming or attempting to achieve such a monopoly. Pacification, in this regard, is inherent in the minimum conception of legitimacy.
Successful pacification results in an asymmetrical justification for the use of force: So long as the state remains justified in monopolizing coercion, resorting to unilateral coercion for whatever ends by individual subjects would be unjustified, the contravention of which constitutes a cause for sanction. This leaves open the justifiability of subjects employing other means to pursue their goals. For instance, the pacified condition is compatible with individuals being concurrently justified in disobeying state directives or obstructing the implementation of policies in certain circumstances, provided that this is done without using physical force.Footnote 54 On the other hand, if there are individuals—even just one—being justified in resorting to unilateral coercion, it means the state’s monopoly of coercion ceases to be a justified state of affairs.
Thus, the (un)justifiability of unilateral coercion can serve as a proxy for ascertaining the success of pacification. A justification for X normally consists in the comparative advantage which one extrapolates from comparing the state of affairs where X is allowed and those where it is prohibited.Footnote 55 For example, in legal reasoning and moral thought, committing a lesser evil is often seen as justifiable if doing so is necessary for avoiding a greater evil. In a similar vein, we may consider it justifiable for subjects to resort to unilateral coercion for preservation-related ends if they are treated under the current social order in ways that they would be better off taking self-preservation into their own hands rather than relying on the state’s protection and provision. It is worth noting that the justification is assessed at a system level. Even in the best possible social order, individuals may be confronted with circumstances which leave them no time to wait for official remedies but to resort to, as an immediate response, what appears to be unilateral coercion. Insofar as circumstances like these are infrequent and secondary remedies are available (e.g., the state ratified ex post necessary self-defence as a justifiable use of force not liable to sanctions), they could be counted as outliers in the assessment of pacification. However, if they occur frequently or if there is evidently a deficiency in secondary remedies, then they should be considered part of a pathological pattern attributable to the state’s failure to pacify, because what gives rise to the necessity of unilateral coercion is no longer detachable from the systematic failure.
Another important issue to note concerns the baseline against which the comparative advantages of justified unilateral coercion are assessed. If Hobbesian egotism were the metric, then any opportune use of unilateral coercion, even at the expense of others, seems justifiable, provided that the unilateral coercer obtains the slightest advantage in their self-interested schemes. Surely, this is unacceptable, not least because it creates the moral hazard of allowing the unilateral coercer to free-ride the benefit of others’ renunciation of unilateral coercion. Although a full scheme of the moral duties which individuals owe to one another cannot be provided here, suffice it to say that any intuitively plausible moral scheme (that is not based on Hobbesian egotism) will considerably limit the justifiable use of unilateral coercion, as applying force against another person violates bodily integrity and is itself generally prohibited save for the presence of weighty counter-considerations. It is likely, therefore, that unilateral coercion can only be justified negatively in terms of avoiding greater evils whose iniquity outweighs the evil of applying force against others. If there exists a category of greater evils that have such justificatory force, it should be summa mala. For the same consideration that leads people of divergent moral views to agree that eliminating summa mala should be given priority over other goals, as we will see shortly, can also effect the mutual recognition that those inflicted by such evils can do everything within their power to rid themselves of the suffering.
3.3. Suffering, Fear, and Enmity
David Enoch recently argues that political philosophy should focus on “serious suffering” instead of uplifting moral ideals because “in politics the stakes in terms of suffering are typically unbelievably high.”Footnote 56 His plea rings all the more true in our context of pacification, because high stakes of suffering generally indicate a higher probability that the sufferers can tolerate no more and may rebel. In normative terms, such high stakes, as in the case of summa mala, do tend to justify the unilateral coercion that marks the failure of pacification, which defeats the minimum legitimacy claim. Paradoxically, the need for pacification itself makes the state a likely source of summa mala. The absolute coercive domination that the state must assert in order to be a competent pacifying agent indeed renders the stakes of suffering particularly high. Normally, we say if someone threatens or tries to coerce another into obeying their instructions, even with good reasons behind them, it would be deemed an act of enmity, which entitles the coercee to defend themself by using proportionate force. The state, in backing its directives with sanctions to ensure compliance, ostensibly exhibits enmity in a similar way, but on a much larger scale. Thus, by the sheer maintenance of a dominant force ready to coerce, the state is charged with a default display of enmity that may justify everyone’s forceful resistance. To rebut the charge, the state cannot simply exercise coercive power in a crude fashion. Rather, its power exercise must be mediated by some assurance, recognizable to all, that those individuals targeted are not its enemies.
The demand for universally recognizable assurance reflects the public character of the enmity attributable to the state imposing itself as the pacifying agent. Unlike personal enmity, enmity of this sort seems inescapable due to the state’s omnipotent presence. This feature inspires fear of a special kind, one that is not confined to those directly on its receiving end but also begets similar fear across the subject population. As Shklar incisively puts it:
The fear we fear is of pain inflicted by others to kill and maim us.… And, when we think politically, we are afraid not only for ourselves but for our fellow citizens as well. We fear a society of fearful people.Footnote 57
People under unmediated power know that some negative consequences may befall them if they defy the state, yet they have no way to tell under what conditions this would happen so as to prepare for or avoid them. Those targeted are thus subject to constant existential dread, which is a particular summum malum characteristic of the status of state enemy. As such, there is no reason for them to refrain from resorting to physical force for fear-relief. Their claim to unilateral coercion cannot be reasonably denied by the rest of us who are not, at present, treated as state enemies. This is so because, as agents capable of sympathetic feeling for one another’s serious suffering, we also react with dreadful sentiments—although we may suppress them for various reasons—on the sight, knowledge, or imagination of those suffering existential fear.Footnote 58 Sympathy causes us to see why existential fear alone, not the actual imminent infliction of pain, suffices to justify the resort to unilateral coercion. The concern for existential fear, therefore, is an impersonal and public matter.Footnote 59 ‘A society of fearful people’ is inherently unstable and unpacified, because it is one infused with justifiable popular readiness for forceful resistance. To render political power suitable for pacification, therefore, the assurance that mediates its exercise must free the targeted individuals from existential fear in a form that is also recognizable to everyone else not directly concerned.
The minimum claim of legitimacy thus commits the state to the arduous task of pacification, a crucial aspect of which is to rid subjects of existential fear. The fear of the state is largely due to information deficits: We tend to fear what is unknown, especially when it concerns an entity wielding inescapable power. Remedying such deficits by way of publicly announcing how political power will be exercised in advance—and adhering to it—marks the start of rendering political power more law-like and suitable for pacification. However, from this to legal legitimation, more needs to be said about the character and quality of legal governance. It is in this connection that the ROL emerges as an implicit commitment entailed by the minimum legitimacy claim.
4. Pacification Through the Rule of Law
Legal governance that meets the formal and procedural criteria of the ROL not only facilitates individual planning by improving the behaviour-guiding function of law as traditionally understood. More importantly, it is constitutive of pacification. As such, the ROL is indispensable to legal legitimation because it renders the legality of political power a meaningful assurance to subjects that the state’s coercive threats hovering over them are not of the sort that justifies forceful resistance. The assurance operates at two levels: a street level where subjects interact with power-wielding officials, and a cognitive level where the state’s coercive threat is more abstractly comprehended.
4.1. Personal Assurance
It is worth recalling that the most celebrated theme of the ROL in the literature is that it restricts officials’ discretion, which is considered a major cause of arbitrary power. Almost all formal criteria of the ROL—generality, clarity, non-contradictory, stability, and especially congruence between legal norms and the actions of officials—bear on this theme. Improvement in the internal coherence among legal norms and their capacity to guide officials also reduces ambiguities, confusions, and contradictions that invite discretionary decisions and risks of arbitrary power in the application of law. However, three formal criteria—namely, non-retroactivity, practicability, and publicity—seem to have difficulty fitting into this theme directly. They seem primarily concerned with making legal norms clear signposts that direct subjects to avoiding sanctions; reducing arbitrary power is only of secondary importance. Indeed, we may say, in making legal conditions for sanctions publicly known and prospectively applied, the state also avails subjects the basis for policing official behaviour when there is a norm-applying institution in place for adjudicating complaints about officials’ deviation from legal norms. But if we took this interpretation to be primary, then it also leaves the last three formal criteria—and arguably some procedural ones, too—dispensable. It is conceivable that in a Leninist party-state, the risk of arbitrary power resulting from officials’ deviation from legal norms can be effectively lowered by powerful supervising institutions which specialize in policing subordinate officials’ behaviour. In that case, legal norms need only be promulgated within the circle of power-wielding officials and disciplinary institutions to make sure officials are rule-bound. Such bindingness can be ensured even if officials are tasked to enforce laws that are retroactive or impracticable for subjects to follow.
From the perspective of pacification, in contrast, the formal and procedural criteria of the ROL are viewed as a mutually supported whole necessary for addressing the existential fear precipitated by the presence of political power. In modern states, the officials who exercise political power on behalf of the state are mostly strangers to subjects. The stranger factor, compounded with the apprehension for unknown consequences when confronted with coercive demands, heightens one’s distrust in the motivation, intention, and competence of the power-wielding official. Such distrust would be justified, I think, even granted that a society is relatively well-governed and people have confidence in the state’s rule. This is because, from the perspective of the person approached by the power-wielding official, the stakes of suffering for misplacing one’s trust are high. It matters little, for instance, that I have faith in the apex authorities’ competence in setting good policies or delivering just outcomes on specific issues. As soon as matters are sent to local deputies for implementation, the division of labour inevitably creates gaps of confidence that need to be overcome. To mitigate such distrust, some external points of reference must exist for me to preliminarily ascertain whether the power-wielding officials on the spot are likely to act with ulterior motives. Their validity must be sufficiently independent from the will of the power-wielding officials. Only then can such points of reference be ‘external’ enough to be used to judge or verify whether officials are doing what they purport to be doing.
Thus, it is imperative that officials produce verifiable proof that they bear me no ill will when we interact. The laws invoked to justify power exercise can be viewed as verifiable proof of this sort, produced by the power-wielding officials, to communicate that the legality of their actions is the reason why they pose no existential threat to me, despite their motivation, intention, and competence being opaque to me. In this respect, legality supplies information that is crucial to overcoming my existential fear—not by revealing or endorsing the trustworthiness of the officials, but by re-orienting my evaluative focus from their trustworthiness to their rule-following. In this way, the complexity of information I need to process is reduced, as there are more salient indicators for me to detect the officials’ rule-deviation than to ascertain their trustworthiness. Moreover, even if I am not satisfied with the purported legality of the officials’ actions, the laws invoked can serve a secondary function, as my ground for voicing my dissatisfaction and arguing my case in designated fora for review and arbitration, which prevents my discontent from escalating into existential worries.
For laws to function as verifiable proof of the sort described above, it is not difficult to see why conformity to the formal criteria of the ROL—particularly publicity, practicability, and non-retroactivity—is crucial. Failing publicity, laws have no reference value for persons targeted by power-wielding officials. Even if, as in the Leninist party-state example, arbitrary power were effectively eliminated by internal party rules and official behaviour rendered fairly predictable by party disciplinary institutions, I have no way to tell whether the officials I encounter are acting in accordance with those rules, or whether the rules have just changed during my particular encounters with them and what to expect next. Therefore, the elimination of arbitrary power does not necessarily translate into alleviating my existential fear. The same goes for practicability and non-retroactivity. Laws that fail either of these criteria are unreasonably difficult or impossible to follow, which exposes subjects to risks of being sanctioned without offering them any opportunity to avoid such exposure. Expecting no escape from sanctions, the targeted persons are thus tormented by not knowing when sanctions will befall. To them, the officials’ appeal to legality when exercising power is no more than window-dressing for what is in fact unmediated coercion.
Also, the external points of reference made possible by laws are not meaningful for subjects if there are no further actions available after they are used to judge the legality of official actions. Pacification thus necessitates the establishment of institutional and procedural arrangements that allow subjects to challenge officials’ exercise of power on the ground of legality, at least with respect to specific decisions that affect them personally, if not the norm-making power in general. Without these, the legality of official actions would be inseparable in appearance and in effect from the power-wielding officials’ declaration, whose authority on the matter would appear final to the targeted persons. When the law becomes indistinguishable from the will of the power-wielding officials, it cannot function as the repository of the confidence needed to counter the distrust and fear of officials. This explains the indispensability of relatively independent, publicly accessible law-applying institutions. While it is an empirical matter which arrangements can yield enough independence and public accessibility for such institutions to mitigate subjects’ distrust and fear to a manageable level, it is safe to assume there must be some degree of consonance with human rationality in terms of the ways they channel grievances and settle disagreements.
It may be said that there is a significant overlap between the goals of pacification and facilitating individual planning in terms of what criteria the law must meet in order to constrain officials. This is hardly surprising, given that stable planning is not possible if one is under constant existential dread. The overlap may invite a criticism that pacification is a levelled-down underlying value for the ROL, which I will address later. Before that, we move our analytic focus from power-wielding officials to the law itself. What if it is the law’s demands that inspire existential fear? With pacification in mind, I do not think the ROL can be, as some positivists claim, entirely neutral about legal content. That said, its constraint on legal content as informed by pacification should be far less substantive than when the ROL is configured to fully cohere with liberalism. A reflection on the criterion of practicability illuminates the differences.
4.2. Impersonal Assurance
At the cognitive level where laws are abstractly perceived as directives of state coercion, the ROL’s value is traditionally understood as fixing the parameter of an autonomous sphere for individuals by warning them ahead of time about what may put them at risk of state coercion in the eyes of the law. Most ROL criteria that promote certainty, predictability, and settlement in the operation of law are in line with this depiction. Positivists who defend thin conceptions consider this warning aspect of the ROL compatible with oppression, discrimination, or other forms of iniquity in the legal system, whereas Dyzenhaus’ thick conception would suggest that a legal warning is properly given only if its content is deemed acceptable from a democratic standpoint. Construing the ROL in light of pacification, we arrive at a position in between these two.
The warning aspect of the ROL does not merely consist in the prospective application of law. The criterion of practicability, which requires that legal demands on subjects should not be impracticable to meet, serves to illustrate this point. The ROL distinguishes between fair warning and warning simpliciter: A warning is fair when there are practicable opportunities for one to steer clear of the warned consequence, while a warning simpliciter merely notifies one in advance that something bad is bound to happen. Promulgating an impracticable law amounts to issuing a warning simpliciter, for it leaves subjects no genuine escape from being sanctioned.Footnote 60 It is arguably a worse display of enmity than assaulting someone without warning, as the warning here serves no good purpose except to terrorize the targeted persons before the warned consequence materializes. Maintaining or enforcing impractical laws, therefore, undermines the task of pacification for the fear it inspires—which, if severe enough, may justify forceful resistance.
Pacification thus informs a more nuanced understanding of practicability. States rarely violate practicability to the degree of commanding what physically cannot be done. More common is that some legal requirements are considered impracticable for being socially or economically costly, or mentally or physically strenuous, yet not impossible to perform. The more demanding a legal requirement, the more it fits the description of warning simpliciter. But whether the said requirement justifies unilateral coercion is further dependant on the severity of the sanction attached. If its non-fulfilment only leads to a mild sanction, calling the law an existential threat to subjects would be an overstatement, even if many of them had been exposed to or had experienced such. The same is true even of legal requirements that leave subjects no chance to comply, provided that the resultant sanctions are not so severe that they relegate the targeted individuals to a socio-economic condition where they need to fear for their survival. A typical example of this is a retroactive tax provision that increases the tax rates of a past period and fines anyone who fails to pay the adjusted amount. Traditional views tend to see this as a breach of practicability, albeit a permissible one if the ROL is traded for a worthwhile social goal (e.g., a more egalitarian distribution of welfare). However, under the pacification reading, the retroactive tax provision is not entirely impractical, because the stipulated fine can be construed as a secondary tax exaction—which, upon enforcement, avails subjects a practicable escape from more severe sanctions. For subjects who are less concerned about terminology—whether something is a ‘fine’ or ‘tax’—than the law’s net effect, this pacification reading may better depict their notion of the (im)practicability of law.
It is a mistake, however, to think that the severity of sanction is conclusively determinative of how threatening a law and its practicability are. Suppose, for example, the law stipulates a week-long detention for jaywalking. While this can be criticized as a disproportionately heavy and undeserved sanction for a minor offense, I doubt that it poses an existential threat to habitual jaywalkers, for the simple reason that refraining from jaywalking is not that difficult. Surely, attaching harsh sanctions to reasonably fulfillable legal requirements is only tolerable up to a point for not rendering the law a warning simpliciter. As any legal requirement inevitably introduces risks of non-compliance—risks that sometimes go beyond one’s control despite taking reasonable care—the more undeservedly severe the sanctions for contravening fulfillable legal requirements, the more justifiably they can be construed as acts of enmity. Thus, it is not merely out of prudence but also due to the consideration of pacification that a state should, as the demandingness of legal requirements increase, temper the severity of their correlative sanctions. But this does not work in reverse; there is no implication that more severe sanctions should be attached to legal requirements that are easily fulfillable.
Practicability and other related criteria that ensure law’s warning being fair are not the only ROL constraints on legal content. Certain warned consequences, due to their intrusiveness to bodily integrity or ultimacy, necessarily defeat the purpose of pacification when being executed. Consider corporal punishments that humiliate and maim one’s body, and death penalties: These treatments are summa mala that either negate a person’s existence entirely or inflict extreme mental and physical pain on them. Anyone so treated is justified in fighting back, and the justifiability is universally non-rejectable, regardless of how much one deserves to be punished for what they had previously done. Therefore, laws that prescribe corporal or capital punishments are incongruous with the ROL in the pacification reading, even if the relevant legal requirements are fulfillable. The problem lies not—at least not solely—in desert; it is due to the dissonance between the extreme severity of these sanctions and the assurance of non-enemy status that the ROL enjoins the law to present. Some may object to this argument against corporal and capital punishments on the ground of inconsistency, citing that being a competent pacifying agent requires the state be able to use deadly force on its subjects in order to stop internal fighting. This inconsistency is apparent only. There is a difference between using proportionate force (sometimes deadly) to stop ongoing assaults, which is necessary for preserving public order, and putting someone in custody, who poses no immediate threat to anyone—even a convicted murderer—to death. Whilst the former is permissible by the standard of pacification, the latter contradicts it.Footnote 61
The sketch above only sets forth some of the most notable constraints on legal content which the ROL, understood as constitutive of pacification, imposes. It is enough, though, to show how the ROL as pacification rules out certain iniquities in law that positivists’ thin conceptions tolerate. For example, laws that institute slavery, which Raz considers compatible with the ROL, are inherently inconsistent with the ROL as pacification for allowing slave-owners to cause existential fear to slaves.Footnote 62 The same goes for severe oppressive or discriminatory legal demands that cannot be met without inspiring existential fear. On the other hand, unlike Dyzenhaus’ thick conception, the ROL as pacification does not depend on a democratic determination of what legal iniquities constitute summa mala and should be eliminated. The validity of that judgment, the ROL as pacification insists, lies not in deliberative consensus but in the severity of the evil itself. While the meta-ethical test for delineating the boundary of summa mala cannot be provided here, the important thing to note is that although the exclusion of summa mala does not positively prescribe what content the law should adopt, the ROL as pacification still facilitates legal legitimation because the normative meaning it enables the law to convey is modest: to tell subjects that they are not justified in fighting back when the law being applied to them is not itself a summum malum.
4.3. A Preliminary Defence of the ROL as Pacification
I have demonstrated how the ROL as pacification offers a coherent interpretation of the formal and procedural criteria commonly associated with the ROL ideal, and its necessary connection to a minimum conception of legitimacy. All these are done without recourse to liberal morality. This interpretive advantage merits some elaboration, for some may object that this connection is established by watering down the demand of legitimacy. Here, it is instructive to invoke Williams’ critique of political moralism. According to Williams, political moralism founds political theories on moral premises whose validity are claimed prior to and thus independently of distinctive political considerations.Footnote 63 Such a model of theorization tends to make theories susceptible to parochialism. Liberalism, in his view, is a version of political moralism in that liberal values are taken for granted as a universally applicable theoretical foundation, while in fact their realization may only have a contingent bearing on solving the most enduring and pressing “first political question”—“the securing of order, protection, safety, trust, and the conditions of cooperation.”Footnote 64 This is so because the crucial step toward addressing this question is to dissuade subjects from resisting state coercion, and, as Williams points out, it was not until modern times, and arguably only in western societies, that liberal morality has become a dominant consideration in that discourse.Footnote 65 To elaborate with our notion of pacification instead: We ask in what circumstance the failure to uphold liberal values in the exercise of political power invariably leads individuals to feel enmity from the state and justified by such fear in resorting to unilateral coercion? The answer would depend on the prevailing culture of a society and its members’ willing commitment to propositions like, “Give me liberty or give me death!” In many other societies, I suspect, enforcing illiberal values, in and of itself, would not be considered sufficient to inspire existential fear and warrant violent struggle, if individuals have much to gain in other aspects of life under a peaceful order.
Williams’ critique of political moralism is contrasted with political realism, his preferred model of theorization, which insists on deriving moral claims from premises that are distinctively political.Footnote 66 My explication of the ROL as pacification is in line with political realism. Much of it centres on summa mala, particularly existential fear, because they are the immediate proxies for evaluating pacification, which in turn is a task states take upon themselves whenever they claim the monopoly of justified coercion. In view of the close affinity between pacification and Williams’ first political question, my focus on the ROL’s contribution to the minimum conception of legitimacy is not ad hoc but aligned with the realism vision that treats considerations of basic political necessity as the justificatory foundation of a political theory. As the necessity of eliminating summa mala and existential fear is universally non-rejectable, the ROL as pacification is better protected from the charge of parochialism than liberal conceptions.
Setting Williams’ political moralism critique aside, some may question why we should accept a levelled-down conception like the ROL as pacification while a more uplifting one construed on liberal morality can achieve just as much in terms of eliminating summa mala and a lot more in promoting freedom and autonomy. Instead of levelling down, perhaps the ROL as pacification is more suitably described as exhibiting a different orientation. For example, liberal conceptions of the ROL can be more permissive on the issue of capital punishments—which the ROL as pacification categorically prohibits—due to their retributive views on punishment, which may see the death penalty as a murderer’s just desert.Footnote 67 True, it is admitted that maintaining capital punishment itself seems not to be a justifiable cause for existential fear for the general public. But the ROL as pacification’s panorama is extended even to prisoners on death row and insists that their fear also matters and entitles them to resist. On the other hand, the ROL as pacification is less invested in entrenching certain liberties with inviolable status, and more permissive with regard to state regulation of, or intervention in, social life than its liberal counterparts—especially when the social context is such that the liberties enjoyed by some groups pose fear-inspiring or discord-provoking externalities to other groups. For these reasons, it is hardly obvious that the achievement of the ROL as pacification would entirely be the subset of what liberal ROL achieves.
The ROL as pacification also has a few practical implications worth mentioning. One of these concerns subjects’ rule-following. People frequently disregard and fail to obey legal rules when going about their lives, but we do not normally take this to be a serious affront to the ROL—at least not as much as when it is committed by officials. As John Gardner notes, the ROL “places burdens on the law and on its officials that it does not place on ordinary folk.”Footnote 68 This observation seems rather at odds with the liberal vison of the ROL-legitimacy connection, in which the state’s conformity to the ROL is taken to generate in subjects a general duty to obey the law. Not so for the ROL as pacification, because its connection with legitimacy consists in a different kind of reciprocity: What the state receives in return for conformity to the ROL is subjects’ lack of justification in resorting to unilateral coercion, which leaves the question of political obligation open.
Related to the last point, another attractive feature of the ROL as pacification is its greater tolerance for unconventional politics. Political processes take place within or outside of institutional frameworks. Democratic decision-making that involves election, deliberation, legislation, and so on, is but one well-known example. Even in a democracy, however, it is not uncommon for the political process to take place simultaneously outside the designated institutions, in the forms of protest, demonstration, assembly, civil disobedience, and so forth, especially when the issue of the day is something widely perceived as pressingly in need of a solution that conventional politics cannot provide. Needless to stress, such non-institutional means to partake in the political process can only be more indispensable to the general public in non-democratic states. If a general duty to obey the law could arise from the state’s conformity with the ROL, then the inauguration of the ROL would conceivably limit the scope of unconventional politics, depriving individuals of a valuable means to make themselves heard by deploying confrontational tactics that involve selectively breaking the law.Footnote 69 Officials would be licensed to criticize and crush law-breaking dissent in the name of the ROL, as they often do. Such rhetoric is denied to officials under the ROL as pacification.
It should be noted that the connection between the ROL as pacification and the minimum conception of legitimacy is a necessary but not sufficient one. Again, this is explained by the task of pacification, which requires—besides mediating political power in a form that assures everyone—appropriate material conditions be secured so that no one is relegated to a social stratum wherein one must break the law in order to survive. To those who are extremely materially deprived to a point that arguably predisposes them to commit crimes, the law is no longer a meaningful assurance that conveys fair warning. That being so, socio-economic development and welfare distribution is a problem quite different in character from the one the ROL as pacification addresses, which concerns the way political power is exercised. To the extent that the ROL as pacification pertains to socio-economic issues, it is indirect in that compliance with the ideal enables the state to better coordinate its agencies and officials for discharging other responsibilities of pacification, such as reducing poverty, crimes, sectarian strife, and so on. That the connection with legitimacy is necessary rather than sufficient, however, does not make the ROL as pacification a lesser legitimation value in comparison to others. For even if a democracy is in place, it is incumbent on the democratically elected officials to produce and implement appropriate policies that can establish and maintain the pacified condition. On that account, democracy alone is no more sufficient than the ROL as a condition for legitimacy. Moreover, since no matter on what grounds political decisions are justified—democratic or utilitarian or others—they are subject to the ROL’s regulation because the latter concerns the appropriate form of exercising political power, the ROL’s role as a legitimation value is arguably more indispensable.
5. Conclusion
This inquiry began with the question of whether the ROL can be a legitimation value on its own. By showing that a specific form of assurance that the ROL provides is constitutive of the task of pacification and that pacification is inherent in the minimum legitimacy claim, I submit that a necessary ROL-legitimacy connection can be established without recourse to a liberal foundation. I call this conception of the ROL, which is necessitated by the state’s minimum legitimacy claim, the ‘ROL as pacification’. It is a ROL-legitimacy connection that hitherto remains hidden from the purview of the methodological paradigm, which produces either classic, thin conceptions of the ROL that claim no necessary bearing on legitimacy, or substantive, fully-fledged liberal conceptions that procure a necessary connection at the cost of eroding the ROL’s distinctiveness. Instead of promoting liberal values, the ROL as pacification prioritizes the elimination of summa mala, particularly existential fear. Its practical import is two-fold. On the one hand, as the ROL remains an attractive state-development ideal for global export and transplant, the ROL as pacification offers a model, true to the spirit of political realism, that addresses issues and concerns affecting political stability and social cohesion the most. This model may better meet the needs of the recipient countries of such an export (i.e., from the Global South). For states in an early developmental stage, strong liberal commitments in institutional arrangement may amplify existent political divides and further strain—rather than strengthen—state capacity for development. On the other hand, the ROL as pacification is an ideal for the fearful and vulnerable in politics. It rejects the law-abiding ethos that shapes public conscience and limits our imagination of what confrontational strategies against those in power are morally permissible in political engagement. This may sound discomfitting to those who prefer civility and orderly conduct in sorting out disagreements. But sometimes the cost of political civility is silencing voices that should have been heard but are hardly represented in conventional politics. Thus, the ROL as pacification is an ideal that empowers both the state and its subjects. It admits no inherent contradiction in this dual empowerment, because the political dynamics it releases are meant to be conducive to achieving pacification.
Acknowledgments
I am grateful to Mattias Kumm and the participants of Berlin Global Constitutionalism Colloquium for their helpful comments and suggestions on an early version of this article. My conception of legitimacy greatly benefited from the exchanges with David Dyzenhaus. Many thanks also to the editorial team at the Canadian Journal of Law & Jurisprudence for their assistance in preparing this article for publication. Any mistakes are my own responsibility.
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