King Rex v. Judge Judex: Adjudicating Transnational law.

• Author: Gelinas, Fabien

Introduction

C'est pour moi un tres grand honneur de me retrouver devant vous ce soir pour marquer mon accession a la Chaire Sir William C. Macdonald. Je vous sais gre d'avoir accepte de consacrer a cet evenement quelquesunes des heures trop peu nombreuses du mois de fevrier.

Je tenais a profiter de cette occasion formelle pour remercier mes collegues titulaires de chaires a la Faculte de droit au printemps de l'annee 2016, et tout particulierement notre ancien doyen Daniel Jutras, pour la confiance qu'ils m'ont temoignee en appuyant ma designation. J'ai ete, et je le suis encore, touche et honore de cette confiance. Je remercie egalement notre doyen actuel pour cette initiative de redonner un elan a la tradition des lecons inaugurales.

Le theme de la Chaire est un peu large, puisqu'il s'agit du droit. C'est donc de droit que je vais vous entretenir ce soir ; d'aucuns, les mauvaises langues, diront qu'il s'agit d'un rare evenement pour cette Faculte. J'aborderai cette vaste question sous l'angle du droit qui se deploie a travers les frontieres etatiques.

Renouant avec une tradition qui remonte aux jeunes annees des premieres Facultes de droit en Occident, et comme le suggere le titre indique dans le programme, je prononcerai ma conference en Latin, parseme toutefois, rassurez-vous, de beaucoup de lingua franca, c'est-a-dire d'anglais.

When writing a paper that is not tied to a conference, giving it a title is the last thing I do. When a conference is announced ahead of time, however, the title comes first and the next thing on the agenda is to figure out what the title could possibly mean.

I have a memory, which is probably more vivid than accurate, about a series of lectures on the concept of law which I followed in England many years ago. The lectures were given by a great figure of Oxonian Jurisprudence who had much to say. In this course of lectures the great professor spent the first few weeks on the word "The". The bulk of the rest of the term was then spent on the word "Concept", which, as you would have guessed, left practically no time for the last of the three words in the title of the series, that is, "Law". So I'll try not to spend too much time on the title.

Let me start with King Rex, or Rex King, to stick to Latin. Many of you will have heard of him. He's the character used by American legal theorist Lon Fuller in his celebrated volume The Morality of Law, to introduce the components of the rule of law through the failures of Rex in establishing it.

Rex is ambitious for his kingdom and wants to reform the legal system as soon as he becomes King. To do so he wants a clean slate and begins by setting aside all existing laws. He then fails in drafting a code, tries rulefree adjudication, then adjudication under a secret code, followed by the successive publication of four codes.

The first code was poorly conceived and drafted, and no one, including lawyers, could understand it. The second was laden with contradictions. The third was full of requirements that were impossible for the subjects to meet. The fourth was a model of clarity and coherence, and did not demand the impossible. But it took so long for Rex to get there that as soon as the code was published, it was subjected to a daily stream of amendments. Once the code had stabilized a little, it turned out that the rules of the code were mostly honoured in the breach by the administration.

You will have counted 8 ways to fail in establishing the rule of law.

When I first read the story several decades ago, I found it at once entertaining, enlightening and unsurprising. But over the years, as I gradually became acquainted with Fuller's other writings, something in the story began to bother me. What bothered me was the sustained focus of the story on legislation, that is: the deliberate design, adoption and enactment of centralized written law. This focus is puzzling because so much of Fuller's other writings focus on implicit law, on practices and interactions, and notably on adjudication as an important form of social ordering and a source of law.

This is where Judge Judex comes in. Her name plays on the dual meaning of the term Judex at different periods of roman institutions: a public judge and a private arbitrator. (1) Judge Judy, if you will, crossed with another TV personality, closer to home, called L'Arbitre, only with a classy, cosmopolitan touch of the global about her, and a much more discrete outlook. Judex sits on a tribunal tasked with adjudicating a transnational dispute according to law.

What do I mean by transnational? For our purposes here it will be enough to adopt what Phillip Jessup had in mind when he put forward the term in his Storrs lectures in 1956, that is: "all law which regulates actions or events that transcend national frontiers." (2) This was meant to include public international law, private international law, and "other rules which do not wholly fit into such standard categories." (3)

What I'd like to explore with you tonight is whether and how Judge Judex can bring a measure of the rule of law to a seemingly growing number, at least up to now, of transnational interactions, in a space where there is no King Rex in sight, no one who can legislate for all. We won't be solving this puzzle tonight, obviously, but we can look at and identify some patterns and ideas that might help us form at least a partial account of transnational legal practice. We will first put King Rex and the rule of law in a bit of context before turning to Judge Judex's possible contribution.

King Rex in Context

It is important to place the concept of the rule of law in a broader context because we're looking at an instantiation of law, transnational law, that is global in its reach and aspirations. The rule of law is also global in its reach, at least as a formula. It has been dubbed "the only universally shared good." (4) Even governments that reject democracy and human rights as Western concepts that are basically unsuitable to other societies and cultures will at least pay lip service to the rule of law. This is so, of course, in part because the rule of law means different things to different people.

In order to isolate a core meaning of the rule of law that can be said to be truly universal, Brian Tamanaha has distinguished the pre-liberal core of the concept from its liberal conception. The pre-liberal core is about the protection of society against government tyranny and simply insists that the ruler operate within a legal framework, be it one of constitutional, conventional, or customary law. (5)

The general idea is recognizable in Aristotle's recommendation that because man behaves in his own interests and becomes a tyrant, "we do not allow a man to rule, but rational principle," (6) and that "[i]t is more proper that law should govern than any one of the citizens." (7) The idea was recognized in the successive versions of Magna Carta, which soon allowed Henry de Bracton to write, in the thirteenth century, that the king is under the law, (8) which was consistent at the time with at least some accounts of customary law on the continent. (9)

It is the same idea that in 1607 allowed Chief Justice Edward Coke to keep King James from sitting as a judge in the law courts, (10) an idea which Coke later took up again when promoting the Petition of Rights in 1628, this time as a Parliamentarian, because the king had fired him as Chief Justice. (11) This was a time when reality was as harsh as what we now seem to confuse with television. I wonder why I can now so easily picture the King saying 'You're fired."

From that period many references appear in the literature to this idea and even to the term "Empire of Law" or "Rule of Law". (12) The formula that would eventually best capture the imagination of future generations we owe to John Adams. He uses it in a paper published in 1775 (13) and again in the Constitution of Massachusetts, which he drafted in 1780: the institutions of government are designed, and I quote: "to the end it may be a government of laws and not of men." (14)

At that time, the broader, liberal conception of the rule of law had firmly taken hold on both sides of the Atlantic. Unlike the pre-liberal core, the broader, liberal conception of the rule of law is not limited to a protection against government tyranny but extends to the ways in which law secures individual liberty. One might object that individual liberty is the ultimate point of protecting against government tyranny and that what Tamanaha terms the pre-liberal core is therefore not distinct from the liberal idea of the rule of law. (15) As he shows, however, the protection against government tyranny through law is a good that is worth securing irrespective of one's political theory, and was indeed clearly being pursued before our idea of individual liberty took hold. The barons who imposed Magna Carta on King John were not protecting individual liberty but what they saw as the right relation between king and aristocracy in a medieval society built on pre-defined status. (16)

Individual liberty is an enlightenment idea, notably seen in Locke (17) and Voltaire. (18) The idea is that hberty is "the right to do whatever the law permits" as Montesquieu put it. (19) Here the quality of individual liberty depends notably on certain quahties of the law, the qualities that King Rex took a lifetime to uncover.

Within the liberal conception it will be useful for us to further distinguish two aspects. Writing in the 1940s, Friederich Hayek gave a cele brated account of the liberal conception explaining that the quality of clear, general, prospective and public laws makes it, and I quote, "possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge." (20) Hayek was an economist and treated the following two aspects of the liberal...