Recourse, Litigation, and the Rule of Law

Abstract

Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it.

Introduction

Recent high-profile lawsuits have supported two competing narratives about the relationship between civil litigation and the rule of law. On the one hand, litigation is often touted as an important instrument of the rule of law that allows individuals to hold powerful actors accountable for their misdeeds. Proponents of this narrative cite legal victories such as Fox News’s settlement of Dominion Voting Systems’ defamation lawsuit regarding false claims about the 2020 U.S. presidential election and E. Jean Carroll’s successful sexual-assault and defamation lawsuit against Donald Trump (as well as litigation prompted by the “MeToo” movement more generally). At the same time, though, litigation has increasingly come to be seen as a threat to the rule of law, with proponents of this counter-narrative decrying “vigilante” citizen suits authorized by novel legislation such as Texas’s infamous Senate Bill 8 and the “weaponization” of ordinary litigation by powerful actors to oppress their victims.¹ Civil litigation, it would seem, occupies an uncertain place in a political regime committed to the rule of law.

In this essay, I argue that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule² helps us to see why—by (unwittingly) revealing a set of recurring, and likely ineliminable, tradeoffs within the rule-of-law ideal itself.

The rule of law, Postema convincingly contends, requires that those who wield power in society be accountable, and one of the primary ways of ensuring such accountability according to Postema’s theory is to afford recourse to those over whom power is exercised. Even as Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of law, however, he associates the mechanisms of recourse with certain “procedural rights that”, he insists, “lie at the heart of the rule of law’s demand of legality”.³ And as he elaborates those procedures, it becomes clear that they resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system, including party control over the initiation, scope, and continuation of litigation; opportunities for the parties to directly confront each other; and a legalistic form of argumentation. Nor are these procedural features merely incidental (and thus potentially severable) elements of Postema’s theory, for he ends up grounding them in the more fundamental values underlying his account of the rule of law.

Postema’s proceduralized conception of recourse rightly emphasizes the value of popular engagement with the law and legal institutions, but I also want to suggest that it confounds any straightforward relationship between recourse and the rule of law. In particular, it turns out that the adversarial form of recourse Postema envisions both promises to promote and threatens to undermine each of the three principles he claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. While we might be able to manage those tradeoffs in various ways, we likely can’t eliminate them altogether, except at the price of unduly curtailing the accountability of powerholders or, at the other extreme, leaving the institutional mechanisms of accountability dangerously vulnerable to cooptation or exploitation by those who would subvert the rule of law.

Given the normative difficulties associated with designing a regime of recourse, a variety of institutional arrangements will likely satisfy the rule of law’s demand for accountability, with each entailing different costs for other aspects of the ideal. It may sometimes be possible to identify a single normatively superior arrangement. I suspect, however, that a uniquely “best” arrangement will often remain elusive—whether because the competing arrangements’ costs and benefits for different facets of the rule of law are incommensurable or because there’s reasonable disagreement about how to make tradeoffs between those costs and benefits. When that’s so, the question becomes who should have the authority to choose among the various reasonable arrangements. Recent populist threats to the rule of law have led many scholars to advocate insulating legal institutions from popular influence and consigning the maintenance of the ideal to non-representative institutions, especially politically independent constitutional courts.⁴ But if even familiar legal institutions such as civil litigation frequently have more ambiguous implications for the rule of law than commonly supposed, then perhaps the people should have more say over exactly how law rules in their political community. We shouldn’t expect a normatively complex ideal such as the rule of law to be instantiated unequivocally in any set of institutions, and that being the case, maybe we should be more willing to treat the rule of law as a potential subject of politics rather than just a constraint on it.

Recourse and Accountability

Law can’t rule in a political community unless its subjects can be held accountable for violating its directives, and one of the most straightforward ways of ensuring such accountability is to grant the community’s members recourse—the ability to call one another to account for alleged legal violations. Postema accordingly incorporates the concept of recourse into his “core idea” of the rule of law: “[W]hen law rules in a political community”, he contends, “it provides protection and recourse against the arbitrary exercise of power through law’s distinctive tools”.⁵ In this section, I explicate Postema’s account of the relationship between recourse and accountability, showing, in particular, how his emphasis on recourse renders legal accountability (1) an empirical or practical condition, not just a normative one, and (2) a condition that is embodied in certain processes, not just outcomes.

Recourse ends up playing such a central role in Postema’s theory of the rule of law because he deems recourse’s primary object—accountability—“key to law’s rule”.⁶ But Postema actually vacillates between two different notions of accountability, one broad and one narrow, and it’s the narrow notion that figures more prominently in his account of recourse. Postema defines the kind of accountability with which the rule of law is concerned as an “agent’s liability to another party’s demand for an account”—in other words, “account-liability or account-demandability”.⁷ As this definition suggests, accountability is for Postema a “discursive” and “normatively structured” practice in which an agent (by which he means anyone who wields power in society) can be compelled to give a “fully public argument” for her actions—a public explanation of the actions in terms of the applicable legal norms.⁸ This discursive practice, however, is also “interpersonal”, for the agent offers her explanation not sua sponte, but in response to someone else’s “demand”, and not indiscriminately, but directed to a particular addressee.⁹ The broad and narrow notions of accountability that Postema alludes to reflect different conceptions of who can demand explanations from agents and whom the agents should address their explanations to.¹⁰

According to the broad notion of accountability, potentially anyone in a political community can demand an explanation from any other agent, who then addresses her explanation to “the public generally”;¹¹ the corresponding sense of recourse grants all members of the political community a general power to call anyone who they believe has exercised power arbitrarily to account. This seems to be the understanding of accountability Postema has in mind when he sometimes presents recourse as a power exercised paradigmatically against governmental actors. At one point, for example, he contends that to provide “recourse against [abuses of power]” is to ensure that, “when there is suspicion that government officials or agencies have exercised power arbitrarily, victims, their surrogates, or other watchdogs may demand an accounting of their exercises of power and, where appropriate, seek a remedy”.¹² Recourse, on this account, is a power held not just by the immediate “victims” of abuses of power, but by any other individuals or organizations that stand ready to demand an explanation from governmental actors. Indeed, Postema emphasizes the role nongovernmental organizations and the media play in holding governmental actors accountable.¹³ The wide universe of potential agents of recourse implies an equally capacious understanding of accountability, whereby powerholders can be accountable for their actions, regardless whether they’re directly accountable to the specific individuals whom they may have injured, so long as they can be compelled to publicly explain their conduct. To be sure, Postema stresses the participatory nature of recourse, noting how “[t]he recourse principle engages subjects of law in what we might call the accountability project that is at the heart of the rule of law”.¹⁴ But that “project” solicits the “active involvement” of the community’s members primarily in their civic capacities as impartial custodians of the law, rather than in their personal capacities as individual victims of legal wrongdoing.¹⁵ With its correlative conception of recourse as a kind of civic activity, the broad notion of accountability is as much a generic political value as it is a distinctively legal one.

As Postema proceeds to elaborate his conception of recourse, however, it becomes clear that he also employs another, narrower notion of accountability that, as we’ll see, resonates more strongly with extant legal institutions and procedures. The narrow notion of accountability emerges from his discussion of recourse by the members of a political community against one another. Notwithstanding his initial focus on the accountability of “government officials or agencies”,¹⁶ Postema explains that the core concern of the rule of law on his account—arbitrary power—extends equally to nonstate actors, embracing the relations between the individual members of a political community.¹⁷ He accordingly defines recourse as involving both “response” and “redress” against all “those who exercise power” in society,¹⁸ and he formulates his “recourse principle” such that “the rule of law implies a duty on governments to provide law subjects rights of recourse—that is, every subject of law is entitled to a right of action in law against any other subject of law (governmental or private)”.¹⁹ While this articulation of the recourse principle is expansive in the sense that it renders every member of the political community potentially liable to a demand by any other member for an explanation of her actions, it is narrow in the sense that it contemplates a bilateral or relational form of recourse whereby one person exercises recourse “against” another. This entails an equally relational form of accountability in which the person who is called to account addresses her explanation to the person who demanded it. As Postema puts it, accountability has a “personal dimension” inasmuch as the right of recourse is a “personal right of holding those who injure one through their abuse of power accountable to oneself”.²⁰ Even as this narrow notion of accountability mirrors Postema’s broad notion in subjecting all members of the political community to potential liability for their actions, it vests the power of recourse in the first instance with those who have been “injure[d]” by an “abuse of power”—that is, victims—and it instructs powerholders to address their explanations specifically to those individuals, as opposed to the public at large.

Postema’s narrow notion of accountability echoes relational theories of accountability from recent work in private law theory. Several prominent theories maintain that private law realizes a distinctively relational form of justice, and they conceptualize private law duties as correlative to rights, with violations of the former grounding a liability on the part of duty-bearers to be held accountable specifically by the aggrieved rights-holders.²¹ Postema’s narrow notions of recourse and accountability reflect some of these theories’ central insights, conceiving of accountability as a kind of relation between those who (allegedly) abuse power and the (putative) victims of such abuse and assigning the victims the primary authority to demand an account from the powerholders.²²

The parallels between Postema’s narrow notion of accountability and relational theories of private law help to clarify two features of Postema’s account of the connection between accountability and the rule of law. First, in situating accountability in the concrete institutional context of private law litigation, relational theories of private law treat accountability as a practical or empirical condition, not just a normative one, and Postema likewise suggests that the kind of accountability that’s essential to the rule of law depends on actual practices of reason-giving, not just the existence of norms governing the exercise of power.²³ To be sure, at one point, he pronounces his conception of accountability “normative, not physical”, but he does so in the course of explaining that “sanctions are not a necessary feature of accountability”, since one can be under a duty to give reasons for one’s actions even if one isn’t subject to sanctions for violating that duty.²⁴ Postema’s narrow notion of accountability is practical in the different sense that powerholders are accountable only insofar as they’re liable to others’ demands for explanations, liability that depends on others’ willingness to actually make such demands. “What is characteristic of law, and vitally important to the rule of law”, Postema stresses, “is not merely the existence of norms, but what we—citizens, organizations, communities, government officials, and agencies—do with them”.²⁵ If Postema’s narrow notion of accountability consists in a liability to being compelled to explain one’s actions to those whom they’ve affected, the affected individuals must at least sometimes actually demand an explanation for that liability to be more than illusory, rendering Postema’s narrow notion of accountability at least a partly practical condition.

Second, just as relational theories of private law associate the practice of accountability with a process of liability-seeking, so Postema defines his narrow notion of accountability as a process rather than just an outcome. Such accountability, in particular, consists at least partly in the exchange of reasons between powerholders and those demanding an explanation, not just in the conformity of powerholders’ conduct with those reasons. “Law’s governance”, Postema explains, “is not governance by that which is rational, reasonable, or right, but rather by disciplined deliberative reasoning, by the disciplined giving, taking, and assessing of reasons”.²⁶ Indeed, Postema suggests that even morality might not reduce to a pure success condition, inasmuch as “the moral dimension of right and justice not only demands behavior of certain kinds but . . . also requires reciprocity and publicity of Right-demanding and Right-respecting behavior”, requirements that depend on the existence of “positive structures and institutions”.²⁷ But be that as it may, the kind of accountability with which the rule of law is concerned must, on Postema’s account, be realized through a process in which powerholders explain their conduct in terms of the applicable norms and in which they do so at the behest of the person demanding such an explanation—that is, through recourse.

Litigation and Recourse’s Procedures

According to Postema, the rule of law seeks to achieve the accountability of powerholders through a discursive practice of reason-giving, and that practice unfolds through a process of recourse in which individuals demand explanations from powerholders. But what, exactly, is the nature of that process? One can imagine a theory of the rule of law having little to say about such procedural technicalities. After all, as Postema reminds us, the rule of the law is an “institutionally realized ideal”,²⁸ and one of the risks associated with theorizing such an ideal is that, in elaborating the institutions through which the ideal is characteristically realized, one will end up mistaking peripheral features of those institutions for some of the ideal’s core requirements.²⁹ One way to mitigate that risk is to leave the ideal’s institutional implications underspecified, so that a wide range of institutional arrangements plausibly accord with the ideal. Although Postema occasionally professes such institutional agnosticism on behalf of his theory of the rule of law, it becomes clear on closer inspection that his narrow notion of accountability and its attendant conception of recourse entail a rather detailed procedural picture. I seek to reveal that picture in this section, showing how the process of recourse Postema contemplates resembles the adversarial form of litigation characteristic of the U.S. federal civil justice system.³⁰ More specifically, Postema’s conception of recourse shares at least three features with civil litigation. First, civil litigation is adversarial, in the sense that the parties (and particularly plaintiffs) possess the power to initiate and continue litigation, thus exercising considerable control over the shape and course of their lawsuits. Second, litigation affords parties significant opportunities for confrontation, enabling them to directly elicit answers and information from each other. And third, litigation employs a legalistic form of argumentation, requiring parties to cast their grievances and factual contentions in legally cognizable terms. Postema’s conception of accountability-through-recourse exhibits each of these three features, and while they may initially seem ancillary, they all prove fundamental to his theory of the rule of law.

Perhaps the most defining feature of civil litigation in the United States is its adversarialism—the fact that private parties, rather than judges or other governmental officials, decide whether to initiate lawsuits in the first place,³¹ whom to sue,³² how to frame their legal and factual contentions,³³ and how far to press their claims.³⁴ Postema’s conception of recourse is adversarial in all these respects. According to the “principle of recourse” enshrined in his “core idea” of the rule of law, all law’s subjects must be afforded “a right of action”—that is, “a right (1) on one’s own motion, (2) to submit to a court of law or other regular legal process a legally recognized claim, (3) to defend that claim in a full and fair procedure, and (4), upon proof of the claim, to obtain judicially ordered relief”.³⁵ The fact that this right is invoked “on one’s own motion” means that private individuals enjoy a power, unmediated by any governmental official, to initiate the legal process that seeks to hold powerholders accountable. As Postema explains, the right of recourse “locates in law subjects a power to call on the assistance of law and government, which have a duty to respond, and a liberty [or Hohfeldian ‘privilege’] to do so (on their own motion)”.³⁶ That power extends, moreover, beyond the initial decision to sue and encompasses further decisions regarding which “legally recognized claim[s]” to “submit” to the court, how to “defend” those claims, and whether to see them all the way through to “judicially ordered relief”. In all these ways, the recourse aspect of Postema’s theory of the rule of law requires the state to provide “legal resources that an individual can mobilize” without having to first obtain the approval of state authorities,³⁷ thereby incorporating the kind of control parties enjoy in an adversarial civil justice system into the rule-of-law ideal itself.

Another feature of civil litigation that Postema ends up codifying as a requirement of the rule of law is the ability to confront those who have allegedly wronged one. From pleading to pretrial discovery to trial testimony, litigation affords myriad opportunities for plaintiffs to confront alleged wrongdoers by demanding answers and enlisting the state’s coercive power to compel responses.³⁸ Postema embeds this kind of confrontation, if not all its exact institutional incidents, in his conception of recourse. Recall that, on Postema’s theory, the core of the form of accountability that recourse aims to realize is the ability to “demand” an account from powerholders and to compel them to respond with an explanation of their actions. The confrontational nature of this discursive practice stems from the fact that it’s ultimately predicated on the right of the person demanding the explanation, where for Postema, “rights are claims the right bearer can make, a basis for the bearer’s demand on the actions, care or respect of another, and a recognized capability to make that demand in the bearer’s own behalf”.³⁹ With regard to Postema’s right of recourse, the demand the right bearer is entitled to make is for an explanation, and that right grounds a duty on the part of the powerholder being called to account to provide one. That’s the fundamental right-duty relationship that underlies all opportunities for confrontation in litigation.

Finally, civil litigation doesn’t empower plaintiffs to make generic “demands” for explanations, but rather requires them to couch those demands in legally cognizable terms—specifically, in terms of legal rules. Litigation, in other words, insists upon a significant degree of legalism.⁴⁰ So, too, Postema treats a highly legalistic form of argumentation as a requirement of the rule of law. He defines his narrow notion of accountability, remember, as a discursive practice in which individuals affected by exercises of power demand explanations from powerholders, who then give reasons for their actions, and he understands the rule of law to require legalism on both sides of that accountability equation. With regard to the person demanding an explanation, Postema’s conception of the rule of law expects her to articulate that demand in “[t]he language of rights”, which “is distinctively, if not exclusively, juridical language”.⁴¹ Postema does invoke Lon Fuller’s account of adjudication as a practice that allows the parties “to present evidence and arguments for their positions regarding the law and its bearing on their rights and duties”, as well as to “tell their stories, seek to make public sense of their actions, and articulate their grievances”.⁴² He makes clear, however, “that they cannot do so in any way or using any language they please”, but rather only in terms of “[t]he positive law”, which “provides a forum and a language for telling their stories”.⁴³ As for powerholders, “[a]ccountability fit for the rule of law is a public activity . . . defin[ed by] . . . the laws of the political community”, such that “the reasons to be given [by powerholders] are determined by the discipline of law”.⁴⁴ The upshot is that, for both accountability-seekers and powerholders, the rule of law “structures argument forensically”.⁴⁵ To be sure, Postema’s account makes some allowance for less formal kinds of argumentation, such as “[d]emonstrations of opposition to authorities and their judgments and orders”, which “may involve loud denunciations”.⁴⁶ But that departure from legalism seems most pertinent to Postema’s broad notion of accountability, when powerholders are being called to account “to the public generally”.⁴⁷ When it comes to the narrow notion of accountability realized through recourse, Postema’s conception of the rule of law appears to demand the kind of legalistic argumentation characteristic of civil litigation.

The narrow notion of accountability-through-recourse that lies at the heart of Postema’s account of the rule of law thus resembles an adversarial form of civil litigation in at least three significant respects.⁴⁸ I can envision two general strategies for disclaiming that resemblance as a necessary feature of Postema’s theory. For one, Postema sometimes suggests that the kind of accountability practices on which his conception of the rule of law depends can be divorced from the more specific institutional context he associates with the right of recourse, arguably rendering the three institutional features I’ve identified in this section merely illustrative ways of realizing accountability rather than essential components of legality. In contrast to his discussion of recourse, for example, he emphasizes that the “framework of mutual accountability” at which the rule of law aims also requires an “informal infrastructure” supported by a “distributed network” of nongovernmental organizations that foster society’s commitment to holding powerholders accountable.⁴⁹ This more “informal” aspect of accountability might seem to imply that recourse and its adversarial features aren’t so central to Postema’s account after all. The problem with this reading, however, is that it confuses a precondition for a robust culture of accountability with the distinctive form of accountability that the rule of law seeks to secure. The rule of law doesn’t pursue accountability tout court, but rather accountability specifically according to law—as Postema puts it, accountability “through law’s distinctive tools”.⁵⁰ The question then becomes what those “distinctive tools” are. For Postema, they seem to include a form of recourse that affords private parties significant control over the process of accountability-holding, allows accountability-seekers to confront powerholders, and involves legalistic modes of argumentation. The more one might seek to downplay these features in Postema’s theory, the more we are left to wonder how that theory remains distinctively legal—a theory of the rule of law.

One might also object that I’ve saddled Postema with a kind of parochialism that he takes great pains to avoid. He acknowledges, for instance, that the rule of law can display significant “variability in the realization of the ideal”, and particularly “cultural variability”, whereby “the institutional machinery of the rule of law may vary with the local social, cultural, moral, and environmental conditions and resources available for its construction and effective operation”.⁵¹ Given the possibility of cultural variability, implementing the rule of law requires “sensitivity to the legal context”, including “[t]he general nature of the legal system”, which “influence[s] the meaning and force of specific procedures and practices, as does the nature and shape of the specific system”.⁵² We should thus consider whether Postema’s conception of the rule of law might countenance other institutional arrangements for ensuring accountability, such as inquisitorial forms of justice that grant governmental officials, rather than private parties, significantly more control over the initiation of the legal process and the prosecution and investigation of legal claims. Indeed, Postema suggests that even “informal, customary modes of hearing and resolving disputes, not incorporated in the legal structure”, might in certain conditions provide better “access to justice” than formal judicial procedures and thus “satisfy rule of law functions”.⁵³ But it’s hard to see how such informal dispute-resolution methods involve the kind of “recourse” that Postema incorporates into his “core idea” of the rule of law and grounds in the idea’s underlying values. And while inquisitorial legal systems needn’t be any less legalistic than adversarial ones and don’t completely commandeer individuals’ private law claims, they do tend to afford private parties much less control over the scope and duration of their lawsuits, as well as a more mediated form of confrontation, and thus a comparatively adulterated kind of recourse.⁵⁴ It seems, in short, either that both informal modes of dispute resolution and inquisitorial legal systems nevertheless fully secure the accountability with which the rule of law is concerned, in which case Postema’s conception of recourse isn’t essential to the rule of law after all, or that they achieve only an ersatz form of accountability, in which case the rule of law can’t be fully realized without recourse and its attendant procedural features.

The Promise and Perils of Recourse for the Rule of Law

Although one might be tempted simply to discount Postema’s proceduralized conception of recourse as reflecting an unduly parochial vision of the rule of law, I don’t think it can be so easily dismissed. A legal system that fails to afford individuals a robust form of recourse may well still comply with the rule of law in significant respects, but such a system, it seems to me, forgoes a valuable kind of popular engagement with the law and its institutions.⁵⁵ Postema, in my view, rightly seeks to incorporate a significant degree of popular engagement—via his idea of recourse—into the concept of the rule of law, and he’s hardly alone in doing so.⁵⁶ Jettisoning Postema’s narrow notion of accountability-through-recourse for the sake of rendering his theory of the rule of law more institutionally ecumenical would thus incur significant normative costs.

At the same time, though, retaining recourse as a central principle of legality entails normative costs of its own. For any theory that, like Postema’s, treats an adversarial form of recourse as an important component of the rule of law introduces a series of conflicts into the ideal. Postema acknowledges the possibility of such conflicts, noting how “events may sometimes pit some rule-of-law principles against other such principles” and “moral agents may face circumstances in which . . . one rule-of-law principle conflicts with another”.⁵⁷ But whereas Postema presents any conflicts as incidental and manageable, I want to suggest that, at least when it comes to recourse and its procedural features, they’re fundamental and intractable. The general problem is that, for Postema, “[t]he organizing aim of the rule of law is to temper the exercise of power to avoid to the extent feasible its arbitrary exercise”,⁵⁸ yet recourse licenses arbitrary power as well as curtails it. That’s because the state, by affording a right of recourse, “locates in law subjects a power to call on the assistance of law and government, which have a duty to respond, and a liberty to do so (on their own motion)”, thereby “putting resources at the disposal of subjects of law”.⁵⁹ Granting private parties such a power creates a risk of its abuse, presenting tradeoffs with respect to each of the three “principles that follow directly from [Postema’s] core idea” of the rule of law: sovereignty, equality, and fidelity.⁶⁰ I consider each principle in turn before assessing several possible strategies for reconciling recourse with the rule of law.⁶¹

Recourse as Ally and Enemy of the Rule of Law

A regime of recourse such as the one Postema contemplates promises both to promote and to subvert law’s sovereignty—the principle that “law must rule” in the political community.⁶² On the one hand, granting the community’s members recourse helps to ensure that law “rules over the exercise of power” in practice as well as in theory,⁶³ by dispersing the power to enforce the law beyond a narrow “oligarchy of officials” who might be tempted to wield (or withhold) that power in their own self-interest.⁶⁴ On the other hand, the right of recourse confers legally sanctioned power on non-officials who enjoy significant discretion in how they exercise it, which introduces a significant risk of the arbitrary exercise of power into the law enforcement process. The problem, to be clear, isn’t discretion as such; Postema thinks discretion is consistent with the rule of law so long as it’s publicly accountable, in the sense of being subject to public standards and reason-giving requirements.⁶⁵ But the adversarial form of recourse that Postema endorses isn’t so constrained, empowering private parties to initiate the legal process and deploy legal resources on their “own motion”. Affording private parties that broad privilege untethers the recourse power from the kinds of limitations to which official powerholders are subject and thus threatens law’s sovereignty.

Although Postema recognizes this problem and attempts to allay it, his caveats represent one possible compromise between recourse’s costs and benefits rather than a resolution of the dilemma that recourse poses for law’s sovereignty. The recourse power, Postema acknowledges, “also creates opportunities for abuse”, and he accordingly argues that the rule of law requires the state to “impose[] limits on the exercise of this power and [to] subject[] it to law’s formal procedures”, particularly by creating “a duty to respect the limits of the power and a liability to be called to account for the exercise of the right”.⁶⁶ Institutionally, that means for Postema affording “a right of recourse against anyone who abuses the right of recourse” and developing equitable doctrines to combat abuse of legal institutions.⁶⁷ Such safeguards are reasonable, and they find close analogues in U.S. civil practice.⁶⁸ But they’re not without their costs, and some of those costs implicate the reasons that Postema understands the rule of law to require recourse in the first place. In particular, the more limits the state imposes on the recourse power ex ante and the more it enforces those limits ex post, the more likely it is to deter ordinary individuals from invoking the recourse power, potentially compromising the accountability of powerholders and thus law’s sovereignty.⁶⁹ The state thus faces a choice between a more liberal regime of recourse that tolerates significant abuse of the recourse power and a more regulated regime that minimizes such abuse but stymies efforts to hold powerholders accountable. Either way, a state that follows Postema’s injunction to realize accountability through recourse can’t escape the tradeoff between the ways in which recourse extends law’s sovereignty and the ways in which recourse usurps it.

Recourse creates a similar tradeoff with respect to Postema’s principle of equality, which “requires that law’s protection and recourse [be] available on an equal basis for all who are also bound by it”.⁷⁰ For Postema, “[t]he recourse principle is a complement to the equality principle”, inasmuch as the rule of law requires “[l]aw that is common to all, binds all, protects all, and offers recourse to all”.⁷¹ But the relationship between recourse and equality proves much more equivocal, though the compatibility of the two principles depends on exactly what equality demands of the rule of law. At times, Postema seems to suggest that the kind of equality relevant to the rule of law is merely formal. “[T]he primary concern of equality in this context”, he explains, “is not material or economic equality, nor the political equality associated with democracy”, but rather an equality of standing, the idea that “when it comes to law’s protection, social, economic, cultural, or personal distinctions do not count”.⁷² Such formal equality, however, falls short once the rule of law selects recourse as its means of holding powerholders accountable, for a regime of recourse makes accountability partly depend on the resources available to those exercising the recourse power. Postema accordingly acknowledges that “[a]ll who are subject to law must have guaranteed access to courts for both criminal and civil matters, unimpeded by legal, social, or financial barriers”, and, in particular, that “[t]he recourse principle requires that victims be accorded a fair (not merely formal) opportunity to seek legally ordered relief”.⁷³

According to this more substantive understanding of equality, each of the three procedural features associated with Postema’s conception of recourse is problematic. A legal system that requires individuals to initiate the legal process and prosecute their own claims will privilege those with the time, money, and other resources to sustain such a consuming endeavor. Relying on individuals’ “demands” to hold powerholders accountable similarly renders the law vulnerable to socioeconomic disparities. And legalism advantages more sophisticated parties who can readily translate their grievances into the language of the law or hire a lawyer to do so on their behalf.⁷⁴ In all these ways, an adversarial form of recourse frustrates substantive equality, even as it puts the members of a political community formally on a par with one another and with officials. Postema once again recognizes the problem and makes clear that the rule of law may not require economic equality of its own force,⁷⁵ but “[w]here social and economic conditions undermine the possibility of being equal in the eyes of the law, entitled to access to institutions for recourse against the arbitrary exercise of power, and to participating in networks of mutual accountability, those conditions stand condemned not only by egalitarian principles of justice but by the demanding rule-of-law ideal as well”.⁷⁶ And the rule-of-law ideal may well turn out to be more demanding than commonly supposed in precisely this respect. If it does, however, that’s largely because Postema’s conception of the ideal eschews more government-driven modes of law enforcement in favor of a form of recourse that puts a premium on individuals’ resources, engendering a conflict between the kind of relational accountability at which recourse aims and legality’s more egalitarian aspirations.

The third principle entailed by Postema’s “core idea” of the rule of law is fidelity, and Postema’s conception of recourse has mixed implications for that principle as well. According to the “fidelity thesis”, “the rule of law can be robust in a polity only when all of its members, and not merely the legal or ruling elite, take responsibility for holding each other, and especially law’s officials, to account under law”.⁷⁷ Fidelity thus views the rule of law as consisting in a “common project of holding those who exercise power accountable to the law”.⁷⁸ We’ve seen, by contrast, that recourse involves the “personal right of holding those who injure one through their abuse of power accountable to oneself”.⁷⁹ And yet, recourse proves essential to fidelity’s “common project”. For that project requires that “all members of the community—officials of all ranks and citizens alike—submit to and participate in a network of mutual accountability”, a “cooperative endeavor” that is partly constituted by “[o]ne’s own efforts”, particularly one’s willingness to exercise the recourse power.⁸⁰ Postema thus insists that “accountability holders have both the normative power to hold others accountable . . . and . . . a responsibility to exercise this power (in appropriate ways, under appropriate circumstances, of course)”.⁸¹

The problem is that the “personal” activity of exercising recourse can also diverge from, and even compromise, fidelity’s “common project” of accountability-holding. That risk arises whenever individuals exercise the recourse power with excessive partiality, whether because they’re using recourse simply to harass rivals or because they’re assuming the role of what Aristotle called the “stickler for justice”, the person who “insists on his legal rights despite the disproportionate costs to another party”.⁸² Recognizing this risk, too, Postema emphasizes that recourse is subject to “considerations of appropriateness of time, place, and manner, which are themselves rooted in the ultimate aim of protecting against the arbitrary exercise of power”, and that “[f]idelity rejects a proposed exercise of accountability-holding that is incompatible with that aim or that cannot contribute to its promotion”.⁸³ As an example of such a deformed exercise of recourse Postema cites Texas’s Senate Bill 8, which prohibits most abortions after a fetal heartbeat has been detected and authorizes enforcement of that prohibition exclusively through lawsuits by private parties rather than actions by public officials.⁸⁴ S.B. 8, Postema contends, constitutes a form of “vigilantism” because “[i]t incentivizes civilians to exercise state power without adequate protections against partiality and guarantees of competence”.⁸⁵ But we shouldn’t let the extreme example of S.B. 8 distract us from the fact that even more quotidian kinds of civil litigation challenge the fidelity project. For all recourse regimes are vulnerable to abuse, yet the more “protections against partiality and guarantees of competence” we impose in the name of preserving the integrity of the fidelity project, the fewer opportunities the law can provide for personal acts of accountability-holding. And such personal opportunities are essential to Postema’s theory. In particular, the practice of accountability-holding can be non-hierarchical, as Postema insists it must be, only insofar as the law fosters a “network of accountability” in which all members of the political community are reciprocally accountable to one another.⁸⁶ If we too severely restrict the opportunities for popular participation in accountability-holding, even for the sake of safeguarding fidelity, we risk unduly narrowing that network, which is also a requirement of fidelity.

Reconciling Recourse and the Rule of Law?

There are several possible strategies one might employ to respond to the conflicts between Postema’s conception of recourse and his three principles and thereby reconcile recourse with the rule of law. I’ve already addressed one: Anticipating each of the conflicts I identified in the previous section, Postema seems to imply that we can eliminate them simply by better regulating the recourse power, so that it isn’t so prone to abuse. But that response, I’ve suggested, overlooks the ways in which regulations of the recourse power can fundamentally alter its nature, conditioning the power to such a degree and subjecting it to such extensive oversight that it loses some of the adversarial qualities that Postema himself deems valuable. While such conditions and oversight may well be justified, they come at a cost to what Postema regards as core rule-of-law principles, engendering conflicts within the ideal.

Rather than try to dissolve the conflicts, one might deny that they arise in the first place. One might, in particular, reinterpret the problems I identified in the previous section as external threats to the rule of law rather than inherent tensions within the ideal. Such an interpretation is suggested by Postema’s discussion of recent threats to the rule of law, in which he argues that accountability-seeking accords with the rule of law only when the members of a political community generally observe social norms restraining the exercise of the recourse power and exhibit a significant degree of “civic trust”.⁸⁷ When people widely flout social norms or display distrust, the argument goes, that doesn’t reveal a fundamental conflict within the rule of law so much as a failure of its preconditions. So, too, when the recourse power is prone to abuse. While this move is certainly available to Postema, however, it seems merely to push the conflicts down a level, with recourse now potentially compromising some of the rule of law’s essential preconditions rather than its core principles—yet undermining the ideal nonetheless.

Two other strategies accept the conflicts I identified in the previous section as genuine tensions within the rule of law but insist that Postema’s theory has the conceptual resources to resolve them in a principled way. First, Postema describes the rule of law as an “internally complex” ideal with a normative “structure” that prioritizes “long-game and systemic considerations”.⁸⁸ Appreciating that structure might help to resolve the conflicts in favor of institutional arrangements that best sustain accountability practices over the long run, even at some cost to individual exercises of the recourse power. But for one thing, the relationship between individualistic and systemic considerations in Postema’s theory is more complex. Postema acknowledges, in particular, that considerations of individual autonomy limit the domains over which law may legitimately rule,⁸⁹ and similar considerations might favor an accountability regime in which exercises of the recourse power are insulated from excessive governmental scrutiny. For another, several different systems of accountability might prove stable over the long term, including adversarial systems that tolerate significant (but not fatal) levels of abuse of the recourse power and more inquisitorial systems that leave law enforcement largely to governmental officials rather than ordinary individuals. An appeal to “long-game and systemic considerations” doesn’t seem sufficiently determinate to yield a definitive choice among those systems, suggesting that we still face a tradeoff between different aspects of the rule of law.

Second, we might think we can resolve conflicts within the rule of law by invoking the more fundamental social-egalitarian value of “membership” in which Postema grounds the ideal.⁹⁰ That value, however, seems too abstract to settle the kinds of institutional questions presented by Postema’s conception of recourse. Consider, by way of contrast, his discussion of Abraham Lincoln’s Emancipation Proclamation, which some legal scholars have argued was unconstitutional.⁹¹ Postema contends that Lincoln nevertheless complied with the rule of law because slavery violated the ideal’s “core concern for equality” and emancipation sought to vindicate that concern.⁹² This purported reconciliation strikes me as too quick, slighting the rule of law’s more formal elements. But in any event, while the value of membership might speak definitively to so grave an evil as slavery, it’s more difficult to discern which way the value cuts with respect to the recourse power, which seems both to honor individuals’ equal standing and to threaten it.

Conclusion: The Rule of Law and the Place of Politics

At the center of Postema’s account of the rule of law is a normatively attractive vision of accountability in which ordinary individuals play a key role in holding other private parties as well as public officials accountable, by demanding explanations from those who have allegedly wronged them. But such a system of recourse is not without its costs, and some of the costs also sound in the rule of law. Designing a system of legal accountability that relies on recourse thus requires making tradeoffs between different aspects of the rule-of-law ideal.

Who should make those tradeoffs? Insofar as they have uniquely correct resolutions, one might prefer to assign that task to legal experts. I’ve tried to show, however, that matters often won’t be so straightforward, for the normative conflicts necessitating the tradeoffs seem to stem from competing—and equally fundamental—facets of the rule-of-law ideal, which I doubt can be organized according to any kind of neat hierarchy. And even if the rule of law could in principle be systematized in that way, I suspect there would still be reasonable disagreement about which exact institutional arrangements best satisfy rule-of-law principles in practice. I’m thus skeptical that either an accessible yet vulnerable regime of recourse, or a better regulated but consequently more restrictive one, is a clearly superior instantiation of the rule of law’s commitment to accountability.

I want to conclude, then, by suggesting that recourse’s ambiguous implications for the rule of law might counsel in favor of leaving certain questions about the design of legal institutions to democratic decisionmaking processes. If a variety of institutional arrangements promote accountability but entail different, incommensurable costs for other rule-of-law values, then perhaps the people and their elected representatives should choose among those arrangements.⁹³ That’s not to say that the rule of law should be completely up for political debate; as recent populist threats to the rule of law make all too clear, certain basic features of the rule of law should be entrenched against popular revision, lest the ideal’s core be compromised. But if, as Postema contends, the same fundamental values that underlie the rule of law also underlie democracy,⁹⁴ then it seems fitting that democratic decisionmaking would end up playing a role in realizing law’s rule.