Ex Post Facto Rules and The Rule of Law

Lon Fuller described the Rule of Law in terms of a series of errors made by a fictitious sovereign, King Rex. The eight failures by which Rex failed to conform to the Rule of Law are:

1. Attempting to decide all disputed matters in his kingdom on an ad hoc basis;
2. Failing to publish laws;
3. Using retroactive rules, principles, and legislation to decide legal disputes;
4. Adopting impossibly complex rules and codes;
5. Adopting rules and codes that imposed contradictory obligations upon citizens, thus rendering conformity with the law impossible.
6. Adopting rules that citizens could not possibly satisfy;
7. Making frequent and substantial changes to the law that interfered with its stability; and
8. Failing to administer the law in conformity with its published text.

Over the weekend, I discovered that my own allegiance to the principles of the Rule of Law only goes so far. My youngest daughter, L, is terrible about keeping track of her stuff and picking up after herself. Upon seeing that L had failed to pick up her plate and glass at the table after lunch, I called her down and informed her that there would be a new rule from now on -- every time she failed to pick up her place at the table, I would fine her $1.00. No problem so far, but then I directed her to bring me a dollar from her bank as a fine for the dishes she had left out before I made the rule.

As a parent, I have no problem with punishments laid down after the fact. (Rules are a different matter and we do our best to keep them to a minimum and to keep them simple and clear).

But as a lawyer and a Rule of Law scholar, I experienced this weird pang of guilt at inventing this new punishment on the spot that L could not have anticipated. State-based law does not distinguish between rules and punishment -- creating an ex post facto rule to render previously permissible conduct impermissible is just as bad as increasing the punishment for particular misconduct after the miscreant has engaged in the misconduct.

On the other hand, L picked up her dishes at the next meal, so I must be doing something right.