The guest for the first episode of the HAPL podcast is Gerald J. Postema, Cary C. Boshamer Professor of Philosophy Emeritus, University of North Carolina at Chapel Hill.
In conversation with Julieta Rabanos, he discusses his last book “Law’s Rule: The Nature, Value, and Viability of the Rule of Law” (OUP, 2022), paying particular attention to his conception of the Rule of Law and how to address both the threats and the challenges he identifies regarding the Rule of Law. In the final part of the conversation, Postema discusses one of the questions posited in the last chapters of the book: “AI in the Law or AI in the Place of Law?”.
Below, you can find the full transcription corresponding to this episode*:
Julieta Rabanos
Welcome to this first episode of this podcast. Here we have Professor Gerald J. Postema, Emeritus Professor of the University of North Carolina at Chapel Hill. Thank you very much for coming.
Gerald Postema
I’m delighted to be here. What a wonderful day and a wonderful time. I’m really pleased to have a chance to talk about the rule of law.
Julieta Rabanos
Yes, with this fantastic book – Law’s Rule – that was edited, I think, last year by Oxford University Press.
Gerald Postema
Yes, in November 2022.
Julieta Rabanos
Let’s talk a little about the contents of the book. Maybe we can start with a brief overview of your conception of the rule of law.
Gerald Postema
Delighted. The phrase “rule of law” used to be a phrase simply in lecture halls, but it’s now come into the public discourse all over the place. Politicians, pundits, people in the public square talk about it. And yet it’s subject to a great deal of contestation and capture. My favorite poet, Dante, said justice is so lovely that even its enemies love it. And that’s even more true of the rule of law. It’s under constant attack and constant contestation, threats around the world and in my own country.
The strategy of this book was not to settle everything, but to provide a framework within which these debates, these discussions, these arguments can be located in a way that we can make some progress in understanding the rule of law and its importance for us. So, the strategy was to first identify what I take to be its core aim, and then look at its moral foundations, and upon that basis think about the most important – what I call – institutional realizations of that ideal.
They vary because they must be adjusted to the social, economic, and political cultures of each community. They will not be all the same, and yet they draw on the core idea and its moral foundations.
So, the rule of law is not simply the rule of any laws. Laws can be terrible. Laws can be wonderful. They can be majestic, and they can be monstrous. The rule of law makes demands – moral and political demands – on laws and on those who wield power.
My idea, my proposal, is to think about the rule of law as concerned about power – about arbitrarily exercised power – not about disorderly behavior, but about disorderly power. So, I propose to take as the core aim the tempering of arbitrary power, with law as the means of achieving that aim.
There are two parts: the aim – tempering power; the means – law. That suggests there might be other ways of also tempering power, but we look to law. Rule of law looks to law for that purpose.
What I like to say is, when the rule of law is robust in a political community, it provides protection and recourse against the arbitrary exercise of power through the tools of law. That’s the main aim. The success of the rule of law lies very importantly in the exercise of mechanisms for holding power-wielders accountable.
From this core idea, I think three principles follow, although one of them has three parts.
Julieta Rabanos
Okay.
Gerald Postema
The three principles are these: I call them sovereignty of law, equality in the eyes of the law, and fidelity.
By sovereignty, I mean law alone must rule. And that suggests that governing power is legitimate only when it is ordained or authorized by law. I call that exclusivity. Governing power must be exercised through the law, or by means of the law, and not outside of it. Reflexivity, which is the idea that all those who govern with the law must equally be governed by it. If you govern with it, you must be governed by it.
So that’s sovereignty – law’s sovereignty.
The second point: equality in the eyes of the law, by which I mean all those who are subject to the law must also have equal access to its protection and recourse.
Finally, fidelity, which I take to be, in some sense, the animating spirit of the rule of law. On this view, law can’t rule on its own. Institutions don’t function on their own. They function only when there are people of integrity and responsibility who make those institutions work.
My claim here is that all members of the community are responsible for holding each other and law’s officials accountable under the law. Law can only rule when there is this ethos – I call it – of fidelity in the ruling community, but also in the larger political community. That’s the animating spirit of the rule of law.
I just might mention a few things here about the tools – or the toolbox – of the law. Very briefly (I go into much greater detail in the book, but very briefly): laws are normative in the sense that laws don’t make people do things, don’t goad them – they guide them. They provide norms for people to follow, and reasons for them to follow those norms. As a result, law addresses the deliberative capacities of those who are subject to them. It doesn’t move them – it provides reasons for them.
Laws also must be public in two senses. One, it must be public in the sense that it is addressed to a public – that is, to a community that has to interact amongst each other. It also makes the exercise of power public – public in both of those senses.
And then the crucial thing here for our purposes is that the rule of law, as I understand it, is the rule of a disciplined deliberative reasoning. It’s not just a set of rules; it’s a framework for deliberative reasoning, first of all among courts and public officials, but it’s addressed to and engages a whole political community.
So, we might say law’s rule is the rule of deliberative reasoning. If that’s the core idea, with some of the tools, we have to ask: Why do we care? I mean, the rule of law makes serious demands on those who wield power, and serious demands on the laws by which they wield power. And why should we care?
We have to ask: What foundations are there for the rule of law? What moral foundations are there? And I propose that we understand the moral foundation in terms of a complex value I call membership.
Yeah, membership is a composite of a number of different values that are complementary but also mutually limiting. But the main idea is: membership is a kind of vision of community in which members are bound together by their history, by their interdependence.
And it’s characterized by what I call mutuality – mutual commitments that are expressed through and organized by mutual responsibilities. So, characterized by mutuality and by peerhood. That’s a peculiar way of putting equality, but I mean not equality of condition – I mean equality of status.
Peerhood is a condition, a situation, a framework within which, in public matters, people can see eye to eye – none of whom is subordinated to another. It also includes a notion of inclusion – but inclusion that makes very clear that the diversity among people be recognized and respected.
And so, in the American phrase on many of our coins and the like, e pluribus unum – out of many, one, or unison – I want to say no, no. It’s e pluribus fugue, as if there were a polyphony of different voices – not the same voice – different voices that come together into a kind of overall unity, but never unison. And then, if we take those things seriously, individual dignity will be a high priority, as well as individual freedom – now understood as freedom from domination by others.
Once you get that point into the picture, you’ll see that the rule of law is there to serve that aim, because its focus is on the arbitrary exercise of power, and trying to temper and protect against that, and provide recourse against that. And so, the rule of law – law, when it adequately realizes the conditions of the rule of law – will serve this deeper moral foundation.
That’s the first two stages. Then what I think is really important for us to understand is that the rule of law is an institutionally realized ideal. That means it operates, it functions, it makes its demands through institutions, through practices. And those institutions and practices must give expression to – must realize, in that sense – the core aim and those three principles I mentioned: sovereignty, equality, and fidelity.
So, what kind of institutions? Well, we can talk really down into the weeds on this, but to put it very generally, we can talk about maybe three or four things.
One, all ruling power must be exercised through the law, and laws must meet the widely accepted conditions, constraints of legality. The laws must be general, prospective, intelligible, and the like. And procedures by which laws are administered must be fair, impartial, and the like. Then the structures of government must be such that they are mutually conditioned. They are engaged in what is often called, from Montesquieu on, checks and balances. Meaning that they don’t just have different powers, but the powers are intersected in such a way that we must maintain both the independence and yet the accountability to these others.
I call that structure – and it could take many different forms –, a really important structure: a structure of horizontal accountability.
Horizontal because the different portions of government relate to each other. They are, as I say, both autonomous or independent, and yet have to give account to other parts.
Also, crucially needed – institutionally needed – are associations and structures within civil society to provide the organization and the discipline for citizens engaging in their responsibilities of holding the wielders of power accountable.
And we need, premier here, a free and independent press, media. We need, I think crucial for this purpose, universities – where we can speak out and speak at and to those who exercise power, from our understanding of the way the world works. We need NGOs of various kinds. We need civil society versions of ombudsman-type roles. We need various structures within civil society to make it possible for the political community as a whole – its members – to engage their responsibilities of holding those who wield power accountable.
And finally, what’s very crucial for the realization of the rule of law is a strong legal profession committed to the rule of law. Lawyers and judges are guardians of the law. They maintain the integrity of the legal system. But they also play two other crucial roles.
One is they are indispensable – especially indispensable – intermediaries between ordinary citizens and government officials of all kinds: courts, civil service, bureaucracy – all those things. They’re crucial intermediaries because if the rule of law is to provide protection and recourse, then those who are subject to the law have to have some way of moving the levers of law. And lawyers are crucial for that.
Also, lawyers are crucial for exercising themselves – I want to underline this – exercising themselves the responsibility of holding leaders accountable. They are in a special position – they, and judges – are in a special position to, as we sometimes say, speak law to power.
That maybe leads me to talk about some threats. Shall we do that?
Julieta Rabanos
Yes, of course.
Gerald Postema
I want to distinguish between threats and challenges to the rule of law.
Challenges are a kind of skepticism about the idea, about the ideal: “That’s just not worth our attention,” or “That’s just too costly,” or “That’s unintelligible.”
Some people want to say – I want to argue that there is a notion of rule of law appropriate even in the transnational, international domain. And people argue: “There’s no such thing as law in the international domain,” and so the notion of the rule of law in the international domain is empty.
That’s a challenge, a kind of fundamental skepticism of the idea.
Threats are different. Threats are elements – and we’ll get into the details of this in a moment – elements that engage forces that decay robust rule of law, make it difficult to function.
Not a challenge – not a skepticism about it – but something that undermines it. A kind of toxin that gets into the political system and makes Rule of Law difficult to function.
I want to talk about threats first, and we’ll get a little bit to challenges later.
Julieta Rabanos
Please.
Gerald Postema
Threats. I’m a philosopher, so I make lots of distinctions. Here’s another distinction: I want to distinguish between acute or active threats and chronic threats.
Let’s take acute threats first. What I mean by that are ongoing activities that are threatening. But here it’s important to see those mere breaches of the law or violations of standards of the rule of law – some institutionalized standards, constitutional norms, and the like – are not, alone, threats.
What is threatening is when those breaches or violations are not met by adequate responses demanding accountability. The threat comes when there’s a breach and the accountability mechanisms don’t work – when the response is weak or even mute. It has to have those two elements.
Se might think of the rule of law in this sense as a kind of homeostatic system, where things are in equilibrium and forces, either internal or external, can disturb that equilibrium, but the accountability mechanism is the equilibrating force.
It brings it back in. We have to see it in that respect. And I’m interested in the way those mechanisms of accountability can begin to erode or fail, and so we have real threats.
I want to think of chronic threats as elements deeper in the conscience, in the consciousness, in the ethos of the political community that make it difficult for those activities of accountability to work – or to be motivated.
Let’s talk about some acute threats.
A very wise justice of the Indian Supreme Court some years ago, a man called H. R. Khanna, said three marks of the decay of the rule of law are: (1) a docile bar, (2) a subservient judiciary, and (3) a choked and coarsened conscience.
I want to build on that. The thought here is that we’ve got a nice distinction among those who are responsible for holding others accountable. I think of two groups here: lawyers and judges. I call them first responders – like the firefighters, the ambulance drivers that come to an emergency first and try to stabilize the situation.
I also want to add to that group political officials – elected officials, maybe even policy leaders in civil society. So those are the first responders. Then, the rest of the community, I want to call them auxiliaries.
So, we have this distinction between first responders and auxiliaries: the docile bar, subservient judiciary, and perhaps mute or irresponsible political officials on one side; and, on the other, those in the community who are quiet, afraid, or alienated.
Amongst these acute threats, unfortunately, the world is full of too many examples – in my country and elsewhere, including Europe. They take various forms.
Power-wielders may blatantly and defiantly violate the law or informal norms, while at the same time loudly professing their commitment to the rule of law. Remember Dante: even the enemies love the rule of law. But they often work through intimidation and harassment, either directly or via their supporters, while political officials turn a blind eye to that kind of intimidation.
Another strategy is to enlist or co-opt – and maybe corrupt – officials, often lawyers, in a project of using the law to subvert the law. Using legal devices to undermine legal constraints. I can give you an example from my own state. Just last week, within an appropriations bill – a budget bill, not straightforward legislation – they inserted a clause that expanded first instance courts by about 30%. All the judges are to be appointed by the ruling majority.
Notice how the legal system was used to weaken a critical constraint on executive power: the judiciary. This is what political scientists call hyper-scrupulous legalism – using the law against the law. And what’s often troubling is how actively involved lawyers are in that – twisting and turning law for that purpose.
So, the threat here is that first responders, in such cases, seem to have lost their sense of integrity, their commitment, and their responsibility. That’s the decay – the docile and subservient part of the first responders.
That may be a personal failure. But what Khanna’s thought suggests is that it might have deeper roots – not just personal failure, but something in the political community more generally that either encourages this behavior or cuts people off from deeper sources of integrity.
That’s where the chronic problems come in.
Personal conscience, personal integrity – those are educated, supported, and corrected within a moral climate. Personal integrity lives and breathes in its moral environment. And when toxins enter that moral environment, the soil in which integrity must grow fails.
Those are the chronic threats. Let me mention a few.
One is apathy. Fidelity takes time and energy. People have to live their lives. But more importantly, there are various forces that turn people away from the political – economic pressure, distraction, exhaustion. That apathy can lead to allowing other forces to go on unchecked. The first responders need support, education, and correction, and apathy withholds those.
Another important chronic threat is alienation. People might think: “Sure, someone should do that – but why should I?” Political theorists often ask: why would those who wield political power subject themselves to the law? That’s a good question. But an equally important one is: why should ordinary people care? Why should they engage?
My friend Martin Krieger once mentioned an old proverb: “Law is like a door in a meadow. You can walk through it if you want – but why?” If that question – why? – becomes central in the public mind, then we’ve lost the source of crucial fidelity.
One cause of that is that people see law failing. They see that instead of protecting the powerless from the powerful, it protects the powerful against the powerless. When law fails in that way, it erodes confidence and commitment.
Why does that happen? Sometimes it’s economic. The distribution of wealth or other forms of power is such that people have no access to the law. They’re effectively cut out of it. The law then looks like someone else’s tool – someone else’s arbitrary power.
So, alienation, sometimes caused by inequality, can erode fidelity – and so erode the very ground in which the rule of law grows.
Another chronic threat is what I’d call the narrowing of our moral horizons. If we become focused only on our group – our tribe, our community – we no longer see shared needs. We lose the capacity to recognize common interests or participate in common solutions. I think, for example, of the reactions in the U.S. to face-covering mandates during the COVID pandemic. Some people saw it as a violation of fundamental individual rights, refusing to wear masks. That signaled an inability to recognize the common good and the role each person plays in securing it.
If your moral horizon is so narrow that you can’t see mutual obligations, then you can’t take up the commitments of fidelity.
One last threat – and it’s again an acute one, but increasingly prevalent – is the corruption of public discourse. Media are flooded with disinformation – intentionally. Not just confusion, but what some call power lies – claims so clearly inconsistent with lived experience that they’re not about truth at all. They’re about expressing power. These lies exploit polarization, and the result is a deeply corrupted public discourse.
And finally, what I’ve recently observed: public officials now attack the very mechanisms of accountability. They undermine, challenge, even weaponize them. So, attempts to hold public officials accountable are reframed not as mechanisms of justice but as partisan attacks – as just another tribe’s domination. That is a profound corruption of the very levers of accountability. And when that happens, it’s very hard for the Rule of Law to function.
So those are the threats I see.
Julieta Rabanos
How do you think that we can respond to these threats or face these challenges?
Gerald Postema
So, it’s pretty obvious there are no easy solutions. I don’t have any easy solution, but let me just say this:
First of all, we must be more fully aware of these threats and where they’re coming from. We have to scrutinize those activities that are proposed in legislation or in the political domain as reforms. We have to look at them not just in terms of whether they conform to formal laws, but also at what their political effect will be.
We have to look at the political payoff, not just the laws, and then ask: does this reform serve or undermine the aim of the rule of law in any fundamental way?
Also, what I think we need to do is energize our first responders. We need to demand – and provide them – resources for embracing the rule of law and its commitments.
We have to get control of social media, which is a major problem. And we must support efforts that enhance government transparency and strengthen protections for the media. It’s very important – strengthen those protections and avoid, at all costs, attacks on the judiciary.
We need greater protection for civil society organizations and their ability to operate, and protections for peaceful protest. There’s no panacea there. There’s not even a program, but there is a set of aims we should engage in.
After all, the rule of law is, in the end, our responsibility. It’s a responsibility we collectively hold, and each has a part in it. So, we must do what we can, as individuals and as a political community, to counter those threats – to answer those toxins and provide a richer moral and political community in which the rule of law can thrive.
Ironically, the rule of law is supposed to protect us – but we’ve got to protect it. That’s the message in the end.
Julieta Rabanos
That if we have something to protect us, we need to protect the thing that protects us.
Gerald Postema
Indeed.
Julieta Rabanos
Well, there is a specific challenge that you address in your book about artificial intelligence, which is something extremely contemporary. You say the challenge is whether we use AI in law, or we think about AI in the place of law. Let’s talk about that.
Gerald Postema
Right. Here’s where I want to say: you have to understand challenge and threat – they overlap a little bit.
I actually discuss artificial intelligence in two chapters of the book. One is concerned with the rising power in the transnational domain of digital platforms – big tech, big data. You know the names.
Julieta Rabanos
Digital domination, right?
Gerald Postema
Yes. Digital domination. That’s a serious concern. What makes it difficult is that it’s not territorial, and so it’s difficult for any political community to deal with it, even within its own territory, because it has trans-territorial power.
I spend a lot of time explaining why manipulation of data is a form of power – and an enormous one. In some cases, it rivals or even exceeds the power of states, because it can manipulate behavior and minds in ways old-fashioned states are still struggling to do.
They often like AI because it provides new tools for doing that kind of thing. So, we have to worry about AI in surveillance – very important – but also about how big tech wields power.
Some say there’s no such thing as rule of law in that domain. That the idea of subjecting such power to law is a non-starter. I think it makes a lot of sense. It’s essential.
This isn’t just a reason for skepticism about the rule of law – it’s a reason to worry about digital platforms as threats to it, and to recognize the need for the rule of law to respond. That requires cooperation among states. It’s only through state cooperation that we can get a handle on this. Europe has begun doing this more seriously than the U.S. The GDPR, for example – what was that, 2018? – already aimed to get this under control.
What I try to argue is that we need to think about the control of digital platforms not only in terms of protecting individual privacy, but also in terms of public goods and public harms.
The loss isn’t just to individuals. These are collective harms. So, we must conceptualize the project not just as empowering individuals to protect themselves, but as building frameworks for addressing public bads and evils – frameworks that acknowledge the role of law and state institutions.
Now, you mentioned another concern I have, and that’s the challenge – really, the threat – that comes from those who argue not only that AI can play a role in legal operations, but that AI might replace law altogether.
People talk about “justice robots.” Chief Justice Roberts of the U.S. Supreme Court has been mentioned in those conversations. They imagine that AI could take over the administration of law and even social ordering. That’s AI in the place of law – not just supporting tasks like legal research or helping police allocate resources, but actually replacing law.
I worry about that. A lot. I’ve tried to get at this by distinguishing computational intelligence from legal intelligence.
Computational intelligence – like that of large language models and algorithms – is fundamentally different from legal reasoning. It’s not about reasoning from norms to application. It’s not about analogical reasoning or reasoning by example. They call it prediction,” but that’s not accurate. It’s correlation. These systems find patterns in data – they identify correlations, not reasons. They manipulate data, but they don’t engage with truth. There’s no connection to the real world in a way that lets them reason about it.
More importantly, computational systems can’t appreciate values or norms. They don’t understand reasons for action, for decision, for judgment. In analogical reasoning, examples are evaluated – there’s justification. In computational intelligence, examples are counted. Evaluation is not the same as counting.
AI can certainly help order society – think of smart tech in cars: breathalyzers that prevent ignition, or drowsiness detectors that pull over the vehicle. But that’s not legal reasoning. That’s goading behavior. It’s not about guidance via norms – like a street sign that says, “Drive as if your children lived here.”
So, what’s lost? Those who advocate AI in the place of law don’t ask that. I do. And in terms of the rule of law, what’s lost is normativity. That sounds abstract, but here’s what I mean.
Governance through AI ignores the moral agency of both citizens and officials. It eliminates the exercise of judgment – reasoning from norms, in context, to particular decisions, and taking responsibility for those decisions.
AI can’t do that. There’s no space for recognizing reasons or accepting responsibility for outcomes. So, we lose that rich sense of normativity. Legal adjudication becomes mere administration of outcomes.
We also lose participation. There’s no role for people to have a say – no way to present reasons, be heard, or appeal. One of law’s essential features – especially as deliberative reasoning – is that it can correct itself. Through adjudication and community input, it evolves. AI has no such capacity. You can redesign it – but that’s done by experts, not by citizens or affected parties.
And here’s what may worry me most: we lose accountability. There’s a lot of talk in the AI world about algorithmic accountability, but what they really mean is explainability. They say, “Here’s how the system produced that outcome.” That’s mechanistic explanation, not accountability. It’s like explaining why your thermostat malfunctioned. You’re just analyzing a device. That’s not the same as calling someone to account for a judgment or decision. You might look to the designers – but as these systems grow more autonomous, it’s harder and harder to find the responsible party.
Accountability gets handed over to a small cadre of experts. Not you or me. Not the public. Transparency doesn’t help much either – because most people don’t have the expertise to challenge the system or understand its logic. And when all accountability is in the hands of a few experts, they’re easy to dominate or isolate from public scrutiny. It removes them from the political community.
So: accountability in official decision-making is deeply undermined. That’s worrisome. And that’s why I think it’s a genuine threat, not just a skepticism.
Julieta Rabanos
Do you think that also the way in which artificial intelligence functions, and the way in which it could replace law, is a threat to this value of membership we were talking about? In the sense that maybe it alienates the people, the community, or destroys the community?
Gerald Postema
So far, what I’d like to say, I think, is that the resources that law provides for binding a community together – it doesn’t always succeed in this, I don’t mean to be Pollyannaish about it – but the resources it provides are such that those who are really deeply divided in various ways can still come around to a way of going on.
That is not just episodic – not just this event, then that event – but something that actually ties the community to its history.
Law has this capacity of looking back and forward. It’s a Janus-faced kind of thing. It always looks back, then looks forward, and brings those together. Law provides resources for doing that. That’s very important for maintaining a basis for moral community.
It also provides a kind of public language in which the very terms of that association can be challenged from time to time. We can raise questions about it, we can address those terms of association – and that gives us a way, even while disagreeing, to get on with the business of trying to find a path where everyone’s dignity and freedom are respected.
So, there are resources in the law that simply are not found in computational intelligence. Law gives us tools we can use. AI never will. It’s not a matter of law doing a really good job and computational intelligence doing a really bad one. It’s that computational intelligence provides no resources – and law does. Our responsibility, our ambition, should be to make the law do it better.
So, I think, on both sides – on the governance side and on the moral association side – we lose a great deal when we lose law.
Julieta Rabanos
Well, thank you very much for your participation in this first episode of the podcast. It was extremely interesting to hear you talk about the ideas that underpin your last book, Law’s Rule. And I wish you the best with your future research.
Gerald Postema
It was delightful. Thank you so much for this opportunity, and good luck with your project.
Julieta Rabanos
Thank you very much.
(*some minor grammatical and changes have been introduced in order to make the reading more fluid, but in no way altering the content or the format of each speaker’s interventions).
The HAPL podcast is powered by the EU Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
