Page - 178 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE178 Governing Through Law The first responsibility of a government is to govern. The responsibil- ity to govern is exercised in important measure by directing what is to be done by the members of a community. It is not the only way to govern or the whole of it. A government may also govern by guiding, nudging, recommending, and proposing.4 But the direction associ- ated with law has special status, for it renders non-optional certain conduct by community members. When reasonable, law is a reason for action. It seeks to provide direction to each community member by answering the question: What are we to do? In well-formed legal systems, the duty to govern is widely shared. The principles of checks and balances and the separation of powers counsel the distribution of executive, legislative, judicial responsibilities to different persons and institutions. Such distribution of the duty to govern provides defence against tyranny and is in the service of liberty and the Rule of Law.5 Good legal systems will not award all or near all authority to the same person or institution. In such systems, the institution with primary law-making responsibility will be the legislature. The legislature will be designed to promote responsible law-making, recognizing that the duty to gov- ern will be frustrated by incompetent, imprudent, or unwise direc- tives. The law-making process will emphasize deliberation, so that the reasons for and against a legislative proposal will be freely debated.6 Such a deliberative process will expand the time needed to make law, but it will help to ensure that the law conforms to the Rule of Law. Among the many requirements associated with the Rule of Law7 are that laws will be promulgated (published and made readily avail- able), clear (understandable by one who reads them), coherent (so that one directive does not require an action that another directive pro- hibits), prospective (so that the directive governing conduct today is not decided tomorrow), not impossible to comply with (so that one is 4. On “the technique of suasion,” see Paul Daly, this volume, Chapter B-6. 5. See Jeremy Waldron, Political  Political  Theory (Cambridge: Harvard University Press, 2016) at chapter 3. 6. See Vanessa MacDonnell, this volume, Chapter B-1. 7. On which, see Lon L Fuller, The  Morality  of  Law (New Haven: Yale University Press, 1969); Joseph Raz, “The Rule of Law and its Virtue” (1977) 93 Law Quarterly Review 198; Joseph Raz, “The Law’s Own Virtue” (2019) 39:1 Oxford J Leg Stud 1; Margaret Jane Radin, “Reconsidering the Rule of Law” (1989) 69:4 BUL Rev 781; Tom Bingham, The Rule of Law (London: Allen Lane, 2010).