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What is the Rule of Law?

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Essay Outline

3 conceptions of the rule of law, the bare bones conception.

When investigating what the Rule of Law consists of, Elliot’s tripartite distinction extends the traditional dualist debate between the formal and substantive conceptions one layer further. We thus begin with this extension – a barebone principle of legality. This is related to HLA Hart’s rule of recognition – if something is to be regarded a law, it must follow the appropriate procedure recognized by the legal system and constitution at large. In the context of the UK Parliament, this ordinarily requires approval by both Houses of Parliament, as well as royal assent from the Queen – in the circumstances proscribed under the Parliament Acts 1911/49, the consent of the Lords is not required. There are two things to note at this point. Firstly, this barebone principle of legality is morally neutral – to lend Sir Leslie Stephen’s overused example – the Blue Eyed Babies Genocidal Act 2020 would be valid provided it was enacted in the appropriate institutional context. Yet moral neturality does not strip the concept of normative value – to lend an example, Lord Camden’s famous judicial dicta in Entick v Carrington: “ if it is law, it will be found in our books. If it is not to be found there, it is not law.” This strong statement was accompanied with a declaration that then Secretary of State’s Lord Halifax’s order to search Entick’s home was unlawful. We thus already see normative value in this bare bone conception in preventing unfettered executive discretion – If Lord Halifax wished to conduct such search, he would have to either rely on statute or established precedent with regard to the prerogative.

The Formal Conception and the Prevailing Position in the United Kingdom

Many academics however, argue that the rule of law properly understood requires us to go further – beyond respect for the rule of recognition as one precondition for valid law, the rule of law is thought to impose further requirements. This is where the traditional debate between formal and substantive requirements is located. We speak of the former first. With regards to the formal conception of the Rule of law, there are multiple definitions. The high juristic authority of Joseph Raz is chosen here for its brevity and accuracy, as well as contemporaneous context(in comparison with Dicey). According to Raz, the 3 key requirements that the law must conform to are that laws:

• Should be publicly and clearly stated
• Should not have retroactive effect
• Should be stable

These principles manifest themselves in judicial dicta which provide strong evidence that the UK constitution adheres to such a formal conception. Two cases are particularly helpful in this regard. Firstly, Lord Steyn’s invocation of the rule of law in Anufrijeva , where the entitlement to benefits of an asylum seeker was upheld is particularly instructive in demonstrating the application of legal certainty where it was thought that a constitutional state “must accord to individuals the right to know of a decision before their rights can be adversely affected”, with the Kafka-esque antithesis being described as a state where the rights of individuals could be eroded by “knocks on doors in the early hours”. Secondly, the idea that laws should not be retroactive is illustrated by Pierson , where it was held that the home secretary’s retroactive extension of a prisoner’s sentence from 15 to 20 years detention was unlawful on the basis that “a sentence lawfully passed should not retrospectively be increased”.

Further, Raz speaks of practical institutional arrangements which must be secured in order to conform with these 3 requirements – that people must have access to courts, further, their independence and expertise must be secured in order to allow them resolve disputes objectively in accordance with legal principle. Finally, in terms of the practical institutional requirement of access to courts which Raz argues is important – the Witham case involved the declaration that a substantial increase in fees to be paid to initiate litigation under … was held to be ultra vires as it would inhibit people on low incomes from making legal claims. Similar facts, relating to employment tribunals this time may be found in Unison .

At this point, it is clear that the formal conception provides more exacting conditions on our law as compared to the bare bones principle of legality – as it demands a legal framework that constrains in particular, the discretion of the executive, beyond the fact that laws must be passed through a process compatible with the prevailing rule of recognition. Expressed by Hayek, the normative appeal of the formal conception is clear and justifies its existence – legal certainty should be facilitated in order for individuals to be able to plan their behaviour as an individual autonomous agent. The eager constitutionalist is then confronted with a curious question – in pursuit of a more optimum normative state, why stop at the formal conception? Should further rights form the basis of a more onerous rule of recognition in pursuit of moral and normative truth? This is the controversy over the formal conception, which we now consider.

The Substantive Conception of the Rule of Law

The substantive conception of the rule of law, as well as the controversy surrounding it can be explicated paradoxically, by Raz’s argument against it- Citing a 1959 report of the International Committee of Jurists, who adopted the view that the rule of law encompassed values such as “civil and political rights” as well as “social educational and cultural conditions”, rejecting this view, Raz retorts “If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy”. Unpacking this dissent, we are firstly directed towards what the substantive conception entails – whereas the requirements of the formal conception, as explicated earlier are comparatively modest based on the foundational principle of respect for individual autonomy(as Elliot and Hart argue), the substantive conception claims for it what political constitutionalists such as Griffith would argue are simply contested political claims. Before examining Raz’s dissent, it is worth considering how, if at all, the substantive conception of the rule of law applies in the context of the UK’s constitution. “Law and Democracy” and “The Rule of Law” by the late and eminent Laws LJ and Lord Bingham respectively show the existence of a substantive conception, at least in the mind of judicial actors.

The position in case law is more controversial. While the formal and substantive conceptions are not entirely discrete, and debate abounds about at what point certain foundational principles turn into common political claims, there are two cases which arguably demonstrate the existence of such a conception. In Daly , a government policy was held to be unlawful because it conflicted with the right to attorney privilege. Emphasising that the decision was reached through “orthodox applications of common law principles” as opposed to convention rights, Lords Bingham and Cooke affirmed the view that “some rights [were] inherent and fundamental to democratic civilised society.” and that constitutions responded by recognising rather than creating these prior rights. Similarly, the right to equality was underlined by Re M , where a Minister was held in contempt of court for refusing to comply with a court order to stay his hand from deporting an asylum seeker. To hold otherwise according to Lord Templeman would “establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”.

Attorney privilege and the right to equality appear to be good to uphold, wherein lies the controversy with the substantive conception? Fundamentally, the argument boils down to the usual concern raised by Griffith and hardline political constitutionalists in general that greater influence on the constitution by the judges will lead to a rise of machiavellian philosopher kings who rule without democratic mandate and cloak their politics in the false neutrality of a substantive conception. Raz thus distinguishes his formal conception as one which is morally neutral. Two points must be raised here, firstly in rebuttal of Raz  And secondly in rebuttal of the political constitutionalist argument against the rule of law.

Raz’s Mistake and a rebuttal against Political Constitutionalism

Firstly, the formal conception cannot be said to be morally neutral – it is premised on the basic respect for the functioning of an individual as an autonomous being. This dispels any illusions of a bright line between formal and substantive forms of the rule of law – individual autonomy is potentially as contestable a right as attorney privilege in Daly , or the equality of individuals in Re M . The real distinction is that the formal conception is reliant on a foundationalist view of justification, where individual autonomy serves as the foundation on which all else rests. On the other hand, the substantive conception is reliant on a non foundationalist view, inasmuch as no single principle is taken to be the foundation on which all else depends; rather each belief mutually supports and is supported by the others, and is in that sense justified.

Secondly, deconstructing Griffith’s argument and using the foundational value of  individual autonomy as an example, it is essentially the view that a lack of consensus precludes the existence of the virtue of individual autonomy from being objectively true, yet this objection doesn’t count snakes, tigers, and polar bears amongst those whose judgments (about the goodness of autonomy) are to be ascertained, but it is about as indiscriminating in its allowing virtually any member of the human species to count. Demonstrably, the volitionary and fetishistic slave may lack an appreciation of individual autonomy, while some might simply lack the capacity to come to a judgement on the matter. But why should the judgments of such individuals deflect those coming from the majority who have a deep capacity and self-evident certainty that individual autonomy is good? Or in fact, equality or attorney privilege for that matter? Few would dissent the normative value of these concepts. Further, our argument here does not simply rest on the support of the majority(which is assumed here admittedly). As Aquinas noted long ago, while certain propositions “are universally self-evident to all .. . [others] are self-evident only to the wise . . . If any propositions of law is self-evident, surely they are in the latter category, and to be adjudged by a class of individuals selected meritocratically from amongst the foremost institutions of legal practice – the judiciary.

Conclusions

The rule of law in our constitution.

No further justification will be given for the preceding arguments: the reader will either be convinced by the analysis, or will believe I am terribly wrong. Conveniently, there is only time to assume the former here. Proceeding on such a charitable assumption, we might draw two conclusions that illuminates the nature of the rule of law in our constitution. Firstly, that the rule of law is an important part of our constitutional arrangements – not only paid lip service to by the Constitutional Reform Act 2015, but also applied through the common law of the court in constitutional cases of recent memory, for what is hoped are obvious normative reasons, largely premised on a respect for the individual as an autonomous functioning being capable of making individual choices, as Hart puts it. This essay has argued for the existence of all 3 progressive forms of the rule of law within our constitutional framework – but it is conceded that only the bare bones and formal conception exist without dispute. The next conclusion addresses a potential unifying conception of a single rule of law.

A Unifying Conception of the Rule of Law

Regarding the debate between formal and substantive conceptions, this commentator controversially argues that there are no clearly demarcated boundaries – the distinction lies within the choice of epistemic justification proffered – Raz prefers a foundational theory, while late eminent jurists such as Sir John Laws and Lord Bingham of Cornhill  for instance would support a non foundational justificatory framework. It is suggested however that we should not further create a false and unnecessary division of a constitutional principle as nebulous as the rule of law on the vagaries of epistemic justification – this is a distinction which outside a highly specialised or philosophical academic setting has little practical importance. Foundational or non foundational, the rule of law simply demands that its constituent principles have some grounds of (surprise) justification. Such justification may exist even though rights are contestable, because it is posited that widespread emotional response and consensus to values such as equality and the value of individual autonomy might serve as grounds of validating the truth of these assertions. It is conceded however, that this is a controversial view.

Allan’s Constitution of Reason

Crucially however, it is not argued that the judiciary employ the Rule of Law as a legal rule to  usurp the power of the state on the grounds of intellectual or moral superiority – instead, this commentator believes that we must recognise that while contestable rights may have objective normative value, the more contestable or “substantive” the right, the greater the probability that this is an area where Parliament has better institutional legitimacy and design to tackle. There is thus a need for the courts to respect the constitutional position of the legislature and draw the boundaries accordingly in enforcing the rule of law. While law students certainly crave for bright lines, the constitution of reason is far more nuanced than we would have hoped.

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rule of law

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rule of law , the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law , secures a nonarbitrary form of government , and more generally prevents the arbitrary use of power. Arbitrariness is typical of various forms of despotism, absolutism , authoritarianism , and totalitarianism . Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure (such as a king , a junta , or a party committee) is capable of acting without the constraint of law when it wishes to do so.

Ideas about the rule of law have been central to political and legal thought since at least the 4th century bce , when Aristotle distinguished “the rule of law” from “that of any individual.” In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots . It has since profoundly influenced Western liberal thought.

In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one—including the most highly placed official—is above the law. The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanctions. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants. In order for those ideas to have any real purchase, moreover, there should be in place some legal apparatus for compelling officials to submit to the law.

Not only does the rule of law entail such basic requirements about how the law should be enacted in society, it also implies certain qualities about the characteristics and content of the laws themselves. In particular, laws should be open and clear, general in form, universal in application, and knowable to all. Moreover, legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable and comprise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established. Furthermore, the law should remain internally consistent and, failing that, should provide for legal ways to resolve contradictions that can be expected to arise.

Despite those basic features, however, there has never been a generally accepted or even systematic formulation of the rule of law (but not for lack of attempts by jurists and political philosophers). The idea that the law should contribute to beneficial ways of channeling and constraining the exercise of public power can be interpreted in different ways; such differences are especially apparent over time and across different polities.

For such reasons, the rule of law is best seen not as a blueprint for institutional design but as a value, or cluster of values, that might inform such a design and that can therefore be pursued in a variety of ways. Nonetheless, several rather simple and generalizable institutional insights follow from the idea that those who judge the legality of exercises of power should not be the same as those who exercise it. For instance, a typical rule-of-law state will institutionalize some means of shielding legal officials from interference, political or otherwise, that threatens their independence. Accordingly, the institutional separation of the judiciary from other branches of government is commonly thought to be an important feature of rule-of-law states. Other measures to ensure fair access to legal institutions may also be important for rule-of-law regimes . In addition, a binding written constitution is widely believed to aid the rule of law and has been adopted by most states of the world.

While certain institutional traditions and conventions, as well as written laws, may be important to ensure that judicial decisions are grounded within plausible interpretations of existing laws, no single institutional character of a state should be seen as necessary or sufficient to the rule-of-law ideal. The rule of law is tied neither to any one national experience nor to any set of institutions in particular, although it may be better served in certain countries and by some institutions. Moreover, the institutional arrangements that ensure the rule of law in one polity might not be easily duplicated in or transplanted to another. Different polities embody their own judgments about how to implement specific rule-of-law ideals given their particular legal and cultural traditions, which naturally influence the character of their institutions. Nonetheless, the initial sociological condition for the rule of law is shared across cultures: for the rule of law to be more than an empty principle, most people in a society, including those whose profession it is to administer the law, must believe that no individual or group should be above the law.

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The Rule of Law

The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter phrase is used to designate some particular legal rule like the rule against perpetuities or the rule that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.

The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights. But these are much more controversial (see section 1 below). And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires.

1. One Ideal among Others

2. the contestedness of the rule of law, 3.1 aristotle, 3.2 john locke, 3.3 montesquieu, 4. rule of law and rule by law, 5.1 formal aspects, 5.2 procedural aspects, 5.3 substantive theories, 6. the values underlying the rule of law, 7. opposition to the rule of law, 8.1 discretion, 8.2 rules and standards, 8.3 law and social norms, 8.4 emergencies, 8.5 international law, 8.6 development and nation-building, 9. the rule of law and the concept of law, other internet resources, related entries.

The Rule of Law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom. The plurality of these values seems to indicate that there are multiple ways in which social and political systems can be evaluated, and these do not necessarily fit tidily together. Some legal philosophers (e.g., Raz 1977) insist, as a matter of analytic clarity, that the Rule of Law in particular must be distinguished from democracy, human rights, and social justice. They confine the focus of the Rule of Law to formal and procedural aspects of governmental institutions, without regard to the content of the policies they implement. But the point is controversial. As we shall see, some substantive accounts have been developed, which amount in effect to the integration of the Rule of Law with some of these other ideals.

The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc , or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.

But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others. Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law such as rule by general norms (rather than particular decrees); rule by norms laid down in advance (rather than by retrospective enactments); rule by norms that are made public (not hidden away in the closets of the administration); and rule by clear and determinate legal norms (norms whose meaning is not so vague or contestable as to leave those who are subject to them at the mercy of official discretion). But these are not necessarily what ordinary people have in mind when they call for the Rule of Law; they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favor of liberty.

Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system. For some the common law is the epitome of legality; for others, the Rule of Law connotes the impartial application of a clearly drafted statute; for others still the Rule of Law is epitomized by a stable constitution that has been embedded for centuries in the politics of a country. When Aristotle ( Politics 1287b), contrasted the Rule of Law with the rule of men, he ventured the opinion that “a man may be a safer ruler than the written law, but not safer than the customary law”. In our own era, F.A. Hayek (1973: 72 ff.) has been at pains to distinguish the rule of law from the rule of legislation, identifying the former with something more like the evolutionary development of the common law, less constructive and less susceptible to deliberate control than the enactment of a statute. There is also continual debate about the relation between law and the mechanisms of government. For some, official discretion is incompatible with the Rule of Law; for others it depends on how the discretion is framed and authorized. For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts (particularly a politically divided court) is as much an instance of the rule of men as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies).

The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies. Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries like Zimbabwe and Afghanistan at the bottom (see Other Internet Resources ). The criteria can be hardly be described as rigorous. But people in business value these rankings as part of their estimation of country risk for foreign investments (see Barro 2000: 215ff.)

3. History of the Rule of Law

The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage. The heritage of argument about the Rule of Law begins with Aristotle (c. 350 BC); it proceeds with medieval theorists like Sir John Fortescue (1471), who sought to distinguish lawful from despotic forms of kingship; it goes on through the early modern period in the work of John Locke (1689), James Harrington (1656), and (oddly enough) Niccolò Machiavelli (1517); in the European Enlightenment in the writings of Montesquieu (1748) and others; in American constitutionalism in The Federalist Papers and (and even more forcefully) in the writings of the Federalists’ opponents; and, in the modern era, in Britain in the writings of A. V. Dicey (1885), F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph Raz (1977), and John Finnis (1980), and in America in the writings of Lon Fuller (1964), Ronald Dworkin (1985), and John Rawls (1971). Because the heritage of this idea is so much a part of its modern application, a few highlights need to be mentioned.

The work of Aristotle on the Rule of Law is still influential. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question ( Politics 1282b)

But Aristotle did maintain that law as such had certain advantages as a mode of governance. Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. Moreover,

laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. ( Rhetoric 1354b)

There were, he conceded, some cases so fraught with difficulty that they could not be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia (sometimes translated as equity). But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of. Aristotle’s discussion of the general desirability of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994).

John Locke in the second of his Two Treatises of Government (1689) emphasized the importance of governance through “established standing Laws, promulgated and known to the People”. He contrasted this with rule by “extemporary Arbitrary Decrees” (Locke 1689: §§135–7). Now the term “arbitrary” can mean many different things. Sometimes it means “oppressive”. But when Locke distinguished the rule of settled standing laws from arbitrary decrees, it was not the oppressive sense of “arbitrary” that he had in mind. In this context, something is arbitrary because it is extemporary: there is no notice of it; the ruler just figures it out as he goes along. It is the arbitrariness of unpredictability, not knowing what you can rely on, being subject, as Locke put it (1689: §137), to someone’s

sudden thoughts, or unrestrain’d, and till that moment unknown Wills without having any measures set down which may guide and justifie their actions.

In Locke’s story, one of the things that people wanted to get away from in the state of nature was being subject to others’ incalculable opinions—even when those others were thinking as hard and rigorously as they could about natural law. Your thinking might be different from my thinking, and it might turn out that your view of the relation between your interests and my interests and your property and my interests might be quite different from my view of the matter and quite different again from the view of the next person I came across. The whole point of moving from a state of nature to a situation of positive law was to introduce some predictability into this picture.

Unfortunately, having laid down this requirement, Locke complicated matters by adding a substantive principle of respect for private property: “The Supream Power cannot take from any Man any part of his Property without his own consent”, and any law that purports to do so is of no validity (Locke 1689: §138). But then there is a difficulty. Though Locke gave us his own theory of prepolitical property rights—the so-called “Labor Theory” in Chapter Five of the Second Treatise —it was itself far from uncontroversial. People in our day, as in his, disagree about the rival claims of labor and occupancy; they disagree about the background of common ownership; and they disagree about how much anyone may appropriate and how sensitive his appropriation must be to the needs of others. We disagree about all that—in ways that were made evident, for example, in the debates about the Lockean theory of Robert Nozick (1974). And Locke and his contemporaries disagreed too; Locke knew, and signaled in a number of places that he knew just how controversial all this was (Tully 1980: 64 ff; for Locke’s awareness of the controversies, see Waldron 1999: 74–5).

By insisting therefore that positive law is subject to this substantive constraint, Locke subjected the legislature to a discipline of uncertainty. Because the natural right of property was controversial, so the administration of any substantive constraint along these lines was bound to be controversial. And because the substantive constraint was supposed to affect the validity of positive law (Locke 1689: §135), the effect would be that some people—let’s say those who disagreed with Locke about the claims of labor over occupancy—would disagree with him about which positive rules of property are valid and which are not.

Montesquieu’s work on the Rule of Law is best known in connection with his insistence on the separation of powers—particularly the separation of judicial power from executive and legislative authority (see Montesquieu 1748: Bk. 11, Ch. 6). The judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers. Montesquieu’s views on the separation of powers had a profound effect on the American founding, particularly in the work of James Madison ( Federalist Papers , §47).

Elsewhere in The Spirit of the Laws , Montesquieu developed a theory of the value of legalism. Noting that despotic governments tend to have very simple laws which they administered peremptorily with little respect for procedural delicacy, Montesquieu argued that legal and procedural complexity tended to be associated with respect for people’s dignity. He associated this sort of respect with a monarchy ruling by law, as opposed to despotism:

In monarchies, the administering of a justice that hands down decisions not only about life and goods, but also about honor, requires scrupulous inquiries. The fastidiousness of the judge grows as more issues are deposited with him, and as he pronounces upon greater interests. (Montesquieu 1748: Bk. VI, ch. 1, p. 72)

This emphasis on the value of complexity—the way in which complicated laws, particularly laws of property, provide hedges beneath which people can find shelter from the intrusive demands of power—has continued to fascinate modern theorists of the rule of law (e.g., Thompson 1975: 258–69).

In the modern debate we also hear echoes of the doctrine propounded in The Spirit of the Laws (1748: Bk. 26, ch. 15, p.510) that “things that depend on principles of civil right must not be ruled by principles of political right”. “Civil right”—Montesquieu’s word for what we call private law—is, he said, “the palladium of property”, and it should be allowed to operate according to its own logic, not burdened with the principles of public or political regulation. A failure of the Rule of Law in this regard is likely to lead to the impoverishment of an economy, as expectations collapse, and owners’ incentives for production and enterprise are undermined (Montesquieu 1748: Bk. V, ch. 14, p. 61).

Writing in the second half of the 19 th century, Albert Venn Dicey bemoaned what he saw as a decline in respect for the Rule of Law in England. The Rule of Law used to be a proud tradition that distinguished governance in England both from the executive domination of droit administratif in France and also from the fatuous and abstract certainties of paper constitutions in countries like Belgium etc. For Dicey, the key to the Rule of Law was legal equality:

[W]ith us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. (1992 [1885]: 114)

Attractive as this is in the abstract, it exhibited a certain naivety so far as the legal position of state officials was concerned. Officials are and often need to be treated differently in law than the ordinary citizen: they need certain extra powers and they need to be hemmed in by extra restrictions, so that they can be held accountable for the actions they perform in the name of the community. For the ordinary person, the Rule of Law generates a presumption in favor of liberty: everything which is not expressly prohibited is permitted. But for the state and its officials, we may want to work with the contrary presumption: the state may act only under express legal authorization.

Dicey had a knack of expressing the Rule of Law in terms of principles whose eloquent formulations belied their deeper difficulties. His first principle of the Rule of Law was:

[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. (Dicey 1992 [1885]: 110)

This seems fine if we are talking about the imposition of criminal sanctions. But “made to suffer in … goods” can also be read to connote the imposition of restrictions on the use of personal or corporate property, or the giving or withholding of licenses, grants, and subsidies. It can be read as precluding any form of discretionary regulation. Dicey was indeed inclined to disparage all administrative discretion, particularly where it seemed to be superseding what had traditionally been regarded as judicial functions. But can we really do without discretion in modern governance? Some modern scholars of administrative law have denounced Dicey’s account as an “extravagant”, “absurd”, and pernicious version of the Rule of Law (Davis 1969: 27–32).

F.A. Hayek was by training an economist, but he also nurtured an interest in the relation between legal structures and forms of national economy. Hayek’s work on the Rule of Law proceeded in two phases: (1) from his wartime book The Road to Serfdom (1944) through to The Constitution of Liberty (Hayek 1960); and (2) the somewhat different account presented in his trilogy, Law, Legislation and Liberty (1973), an account which is more congenial to the spirit of common law and hostile to the role of legislation.

(1) Governance during wartime necessarily required total mobilization and management of all of the society’s manpower and resources. Hayek warned in 1944 against the retention of anything like this mode of administration in peacetime. He made an eloquent argument that in normal times a society need not be managed but should be governed—and its people largely left to their own devices—within a framework of general rules laid down in advance. These rules would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of government as to what the particular effects of their application would be. But this lack of particular knowledge on the part of the government would be offset by the fact that rules would provide a framework of predictability for ordinary people and businesses. They would know that they would not be molested by the state, provided they operated within the parameters of the general and impersonal rules. Human freedom, on Hayek’s account, did not preclude all state action; but it does require that state action be calculable.

(2) In the 1970s, Hayek began to rethink all this. The attention was still on the implications of Rule of Law for liberty. But now Hayek began to wonder whether the texts of clear general legislated rules would really provide an appropriate framework for freedom. It was, he said, a mistake to think that “by confining the judge to the application of already articulated rules we will increase the predictability of his decisions”. Articulated rules are “often a very imperfect formulation of principles which people can better honour in action than express in words” (Hayek 1973: 118). He favored something more like a common law model of predictability, with principles and solutions emerging from a series of judicial decisions in an almost evolutionary way. [ 1 ] The evolution of principles that distinguished themselves by their reasonableness was superior, Hayek thought, to the deliberate imposition of rules by a legislator. According to Hayek, the legislative mentality is inherently managerial; it is oriented in the first instance to the organization of the state’s own administrative apparatus; and its extension into the realm of public policy generally means an outward projection of that sort of managerial mentality with frightful consequences for liberty and markets.

Lon Fuller believed that government in accordance with the forms and procedures of law had a distinctive value that could help close the gap of separation between positive law, on the one hand, and morality and justice on the other. The conventional wisdom of the legal positivists held that laws could be impeccably drafted and even-handedly administered and still be hideously unjust: antebellum slave law in the United States and apartheid law in South Africa were often cited as examples. But Fuller believed, as a matter of political psychology, that there would be reluctance to use the forms of law—general and public norms—to embody and inscribe injustice. He believed that “coherence and goodness [had] more affinity than coherence and evil”, he thought bad things happened in the dark as opposed to the sunlight of legality, and he maintained that “even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law” (Fuller 1958: 636–7).

Fuller acknowledged that this link between legality and justice was tentative. It was certainly controversial. But whether this connection held or not, he also wanted to insist that the complete absence of respect for formal criteria of legality might deprive a system of power of its status as law:

When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality—when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law. (Fuller 1958: 660)

In his 1964 book The Morality of Law , Fuller formulated principles of what he called “the inner morality of law”—principles requiring that laws be general, public, prospective, coherent, clear, stable, and practicable—and he argued that these were indispensable to law-making. Reviewing Fuller’s book, H.L.A. Hart (1965) asked in what sense these principles could be called a “morality”. They seemed to be more like instrumental principles for effective legislation, and on Hart’s view, they were only as moral as the enterprise they made possible.

Fuller responded by denying that the significance of his eight principles was purely instrumental. They also constituted a morality of respect for the freedom and dignity of the agents addressed by the law: what they made possible was a mode of governance that worked through ordinary human agency rather than short-circuiting it through manipulation or terror. This thesis was separate from the connection between law and morality intimated in Fuller 1958. But the two accounts of the moral significance of law were connected in a way that John Finnis explained:

A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the tyrant, ex hypothesis, holds in contempt. (1980: 273)

Fuller’s work on the Rule of Law had one last nuance. He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for allocative decision-making in a mixed economy like the United States in the 1960s. In modern political economy, said Fuller, we face problems of institutional design “unprecedented in scope and importance”. Focusing more on the procedural side of the Rule of Law, Fuller insisted that we lawyers acknowledge that although “[a]djudication is a process with which we are familiar and which enables us to show to advantage our special talents”, still it may be “an ineffective instrument for economic management” (Fuller 1964: 176).

Some theorists draw a distinction between the Rule of Law and what they call rule by law (see e.g., Tamanaha 2004: 3). They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes, in modern China for example.

Thomas Hobbes may be seen as a theorist of rule by law. In a society whose members disagree about property, he thought it conducive to peace for the sovereign of a society “to make some common Rules for all men, and to declare them publiquely, by which every man may know what may be called his, what anothers” (Hobbes 1647: Bk. II, ch. 6, sect. ix). But Hobbes also thought that it would undermine peace—indeed it would undermine the very logic of sovereignty—for the ultimate law-maker to be bound by the laws he applied to his subjects (Hobbes 1991 [1651]: 184).

However, the distinction may not be so clear-cut. Even rule by law seems to imply that rulers accept something like the formal discipline of legality. Unless the orders issued by the state are general, clear, prospective, public, and relatively stable, the state is not ruling by law. So this thin version of legality does still have moral significance in the respect it pays to the human need for clarity and predictability. Rule by law “can be a way a government … stabilizes and secures expectations” (Goodpaster 2003: 686). Even if its use remains instrumental to the purposes of the state, it involves what Fuller called a bond of reciprocity with the purposes of those who are governed: the latter are assured that the promulgated rules are the ones that will be used to evaluate their actions (see also Winston 2005: 316).

Some jurists who maintain the contrast between the Rule of Law and rule by law have a more ambitious agenda. They take seriously the ancient idea that we might be ruled by laws and not by men. One may ask: how is that supposed to happen? After all, all law is made by people and interpreted by people and applied by people. It can no more rule us by itself, without human assistance, than a cannon can dominate us without an iron-monger to cast it and an artilleryman to load and fire it. The jurists who contrast the Rule of Law with rule by law believe they can make this work by focusing on laws whose human origins are in some way diffuse or immemorial. We are not necessarily talking here about natural law, but perhaps about something like customary law or common law—law that is not so evidently a top-down product of powerful human law-makers (Epstein 2011). Common law grows and develops under its own steam, and need not be conceived as a device by which some identifiable humans rule over others. No doubt there is a lot of mythology in this. A more realistic view of common law identifies it with the deliberate and arbitrary rule of an entity that Bentham (1792) called “Judge & Co”. But it remains true that the human element is diffuse in this sort of system, and at any given time the law that emerges is a resultant of the work of many people rather than the intentional product of a domineering majority ruling us from the legislative center of a state.

As we saw in the discussion of Hayek (1973), the other side of this coin is a disparagement of legislation, precisely because its enactment seems patently and undeniably to represent the rule of powerful officials. Legislation is a matter of will . The legislative process produces law simply by virtue of a bunch of people in an assembly deciding that a given law is to be produced. And this is done by the very men—powerful politicians—to whose power the Rule of Law is supposed to be an alternative.

However, most people who value the Rule of Law do not accept this approach. If a statute is properly drafted (if it is clear, intelligible and expressed in general terms) and prospectively enacted and promulgated, and if it is administered impartially and with due process—they will call this an entirely appropriate exercise under the Rule of Law. Indeed that is what many scholars mean by the Rule of Law: people being governed by measures laid down in advance in general terms and enforced equally according to the terms in which they have been publicly promulgated. The argument that it should be put aside because it does not contrast sufficiently with the rule of men seems perverse.

No one doubts that legislation can sometimes undermine the Rule of Law, by purporting for example to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action. But this is not a problem with legislation as such; this is a concern about the content of particular enactments. Rule by judges, too, can sometimes be seen as the very sort of rule by men that the Rule of Law is supposed to supersede (see Waldron 2002: 142–3 and 147–8).

5. Formal, Procedural and Substantive Requirements

Theorists of the Rule of Law are fond of producing laundry lists of the principles it comprises. These principles are of disparate kinds, which may loosely be divided into principles that address the formal aspects of governance by law; principles that address its procedural aspects ; and principles that embrace certain substantive values.

The best known are the eight formal principles of Lon Fuller’s “inner morality of law”: (1964; see also the lists in Finnis 1980: 270–1; Rawls 1999: 208–10; and Raz 1979 [1977]: 214–18) generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct.

So for example, the requirement that laws be general in character, rather than aimed at particular individuals, is purely a matter of form. It is compatible with invidious discrimination so far as its substance is concerned, since even a norm like “A person who is of African descent must sit in the back of any public bus that they ride on” applies, universalizably, to everyone. A formal requirement of generality does not guarantee justice; but that partly reflects the fact that justice and the Rule of Law work as separate criteria for evaluating a political system.

Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. Of course law cannot work without particular orders, but as Raz points out (1979 [1977]: 213) the generality requirement is usually taken to mean that “the making of particular laws should be guided by open and relatively stable general rules”. These rules themselves should operate impersonally and impartially.

Besides the form of the rules themselves there is also the nature of their presence in society. The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. It requires that laws be public and that they be promulgated well in advance of individuals’ being held responsible for complying with them. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: (i) they impose requirements for ordinary citizens to comply with; and (ii) they issue instructions to officials about what to do in the event of non-compliance by the citizens. Laws that are secret and retroactive so far as (i) is concerned may still operate effectively in respect of (ii). So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account.

The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly. True, much modern law is necessarily technical (Weber 1968 [1922]: 882–95) and the lay-person will often require professional advice as to what the law requires of him. It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires. In the nineteenth century, Jeremy Bentham (1782: ch. 15 and 1792) criticized customary law in general, and common law in particular, for failing to satisfy this requirement: the sources of law were hidden in obscurity and though there were spurious appeals to precedent, much of the law was just made up by the judges as they went along.

We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve (I have adapted this list from Tashima 2008: 264):

• a hearing by an impartial and independent tribunal that is required to administer existing legal norms on the basis of the formal presentation of evidence and argument;
• a right to representation by counsel at such a hearing
• a right to be present, to confront and question witnesses, and to make legal argument about the bearing of the evidence and the various legal norms relevant to the case; and
• a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it.

Arguably, such procedural principles matter more in the ordinary person’s conception of the Rule of Law than the formal criteria mentioned in the previous section. When people worried that the American detention facility in Guantanamo Bay from 2003 to the present was a “black hole” so far as legality was concerned, it was precisely the lack of these procedural rights that they were concerned about. What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them (such as it was), and to be represented so that their own side of the story could be explained. No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded. It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.

Some procedural requirements are also institutional in character: there must be courts and there must be judges whose independence of the other branches of government is guaranteed. This side of the Rule of Law is connected with the constitutional principle of the separation of powers. That principle is sometimes justified simply on the ground that it is unhealthy for power to be institutionally concentrated in society. But it also has a Rule of Law justification inasmuch as it assigns distinct significance to distinct stages in the making and application of laws (Waldron 2013).

Though many jurists follow Raz 1977 in thinking that the Rule of Law is a purely formal/procedural ideal, others believe in adding a more substantive dimension. They do not think it is possible to sharply separate our political ideals in the way Raz seems to suppose. At the very least, the formal/procedural aspects generate a certain momentum in a substantive direction. Generality—proceeding according to a rule—is often said to contain the germ of justice (Hart 1961: ch. 8). And, stability, publicity, clarity, and prospectivity indicate a pretty fundamental connection between the Rule of Law and the conditions of liberty. We have to be careful, however, to distinguish between allegedly substantive requirements of the Rule of Law and specification of the deeper values that underlie and motivate the ideal even in its formal and procedural requirements.

Some jurists believe that there is a special affinity between the Rule of Law and the vindication and support of private property. Ronald Cass (2004: 131) says that “[a] critical aspect of the commitment to the rule of law is the definition and protection of property rights”.

[T]he degree to which the society is bound by law, is committed to processes that allow property rights to be secure under legal rules that will be applied predictably and not subject to the whims of particular individuals, matters. The commitment to such processes is the essence of the rule of law. Cass (2004: 131)

Others, like Richard Epstein (2011: 10), accept that “[a]nalytically, the rule of law is … a separate conception from private property”. But they think nevertheless that a contingent connection between the Rule of Law and private property can be established by showing that the forms of regulation defenders of private property are concerned about tend to be forms of regulation that the Rule of Law, even on a more austere conception, prohibits.

It is also widely believed—though not necessarily by the same people who associate legality with property—that a system of positive law that fails to respect fundamental human rights should not be dignified with the term “the Rule of Law”. The World Justice Project in 2011 quoted Arthur Chaskalson, former Chief Justice of South Africa, to this effect:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”. (World Justice Project 2011: 9)

On the other hand, as we have seen, Joseph Raz (1979 [1977]: 211) is famous for insisting that “the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged”, and that we should not try to read into it other considerations about democracy, human rights, and social justice. Those considerations, he said, are better understood as independent dimensions of assessment. Tom Bingham, in his book on The Rule of Law , said this in response to Raz:

While … one can recognize the logical force of Professor Raz’s contention, I would roundly reject it in favor of a “thick” definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. (Bingham 2010: 67)

Lord Bingham’s position has an intuitive appeal in the eyes of many commentators, even if it irritates in its casual rejection of a point whose logic it claims to recognize.

Both Chaskalson and Bingham seem to want to fill out the formal/ procedural conception of the Rule of Law with some human rights component. And many liberals are inclined to follow them in that. But this is not the only possibility. Many associate the Rule of Law with a presumption of liberty or the principle of human dignity. Others—Arthur Chaskalson hinted at this—associate the Rule of Law with a substantive dimension of democracy.

All this sounds an analytic danger signal. Once we open up the possibility of the Rule of Law’s having a substantive dimension, we inaugurate a sort of competition in which everyone clamors to have their favorite political ideal incorporated as a substantive dimension of the Rule of Law. Those who favor property rights and market economy will scramble to privilege their favorite values in this regard. But so will those who favor human rights, or those who favor democratic participation, or those who favor civil liberties or social justice. The result is likely to be a general decline in political articulacy, as people struggle to use the same term to express disparate ideals.

Even if the principles of the Rule of Law are purely formal in their application, we don’t just value them for formalistic reasons. Most fundamentally, people value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even. It establishes what Fuller (1964: 39–40) called a bond of reciprocity—a mutuality of constraint—between the ruler and the ruled, and in that sense it mitigates the asymmetry that political power otherwise involves.

Connected with this, the Rule of Law is valuable and important because it establishes an environment that is conducive to liberty. According to Hayek’s theory of the Rule of Law—particularly in the early phase of his work (see section 3.5 above)—we value requirements like generality and impersonality because they free us from dependence upon others’ wills:

My action can hardly be regarded as subject to the will of another person if I use his rules for my own purposes as I might use my knowledge of a law of nature, and if that person does not know of my existence or of the particular circumstances in which the rules will apply to me or of the effects they will have on my plans. (Hayek 1960: 152)

Hayek also maintained that requirements of clarity, prospectivity and so on make an important contribution to predictability, which he thought was indispensable for individual freedom. Predictability is often cited as a Rule-of-Law virtue. In his well-known recent book on the subject, Tom Bingham indicated that one of the most important things people needed from the law that governed them was predictability in the conduct of their lives and businesses. He quoted Lord Mansfield to the effect that

[i]n all mercantile transactions the great object should be certainty: … it is of more consequence that a rule should be certain, than whether the rule is established one way rather than the other. (Lord Mansfield in Vallejo v. Wheeler (1774) 1 Cowp. 143, p. 153 (cited by Bingham 2010: 38))

Bingham went on to observe in his own voice that

[n]o one would choose to do business … involving large sums of money, in a country where parties’ rights and obligations were undecided. (Bingham 2010: 38)

These conceptions claim to bring a certain air of reality to our discussions of freedom. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act to avoid its application. Knowing in advance how the law will operate enables one to make plans and work around its requirements (see Hayek 1960: 153 and 156–7). And knowing that one can count on the law’s protecting property and personal rights gives each citizen some certainty about what he can rely on in his dealings with other people. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance. If action of this sort becomes endemic, then not only are people’s expectations disappointed, but increasingly they will find themselves unable to form expectations on which to rely, and the horizons of their planning and their economic activity will shrink accordingly.

So we need a basis for expectation. The best account of the importance of legal expectations was given by the utilitarian philosopher Jeremy Bentham, in a work called “Principles of the Civil Code”. Expectation, said Bentham, is “a chain which unites our present existence to our future existence”.

It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not isolated and independent points, but become continuous parts of a whole. (Bentham 1931 [1802, 1864]: 111)

The establishment of expectations, said Bentham, is largely the work of law, and the security of expectations is a vital constraint on the action of law: “The principle of security … requires that events, so far as they depend upon laws, should conform to the expectations which law itself has created…”.

Joseph Raz and Lon Fuller took the point about freedom even further. Raz (1979 [1977]: 221) suggested that securing an atmosphere conducive to freedom was a matter of dignity: “Respecting human dignity entails treating humans as persons capable of planning and plotting their future” (Raz 1979 [1977]: 221). In Lon Fuller’s theory, too, the principles of the inner morality of law were valued for the way they respected dignity:

To embark on the enterprise of subjecting human conduct to rules involves … a commitment to the view that man is … a responsible agent, capable of understanding and following rules…. Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey … your indifference to his powers of self-determination. (Fuller 1964: 162)

What is said here about the connection between dignity and Fuller’s formal principles can be said even more about the connection between procedure and dignity. Procedural principles capture a deep and important sense that law is a mode of governing people that treats them as though they had a perspective of their own to present on the application of norms to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.

No account of the Rule of Law is complete if it does not mention the ways in which this ideal is deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato (in The Statesman ), Thomas Hobbes (at least if the Rule of Law is supposed to take us beyond rule by law), and Carl Schmitt 1923 (in his attack on parliamentarism and on the liberal assumption that rules can prevail even under conditions of endemic crisis).

The criticism by Plato (c. 370 BC) has been the most enduring. From his perspective, which extolled the application of focused intelligence and insight by those in power, insistence upon the use of law in government was

like a stubborn, stupid person who refuses to allow the slightest deviation from or questioning of his own rules, even if the situation has in fact changed and it turns out to be better for someone to contravene these rules. ( Statesman 294b–c)

Rules themselves were part of the problem: “People and situations differ, and human affairs are characterized by an almost permanent state of instability” ( Statesman 294b). One would use them, only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of expertise in political life. These concerns are echoed in the work of modern legal pragmatists (like Posner 1995) who place much more faith in insight of judges into new situations than in the application of established rules or strained analogies with ancient precedents.

Echoes of the Platonic critique are also heard in those who privilege decisive executive decision-making in times of crisis, especially if the crises seem to be successive and unending (Schmitt 1923; Posner and Vermeule 2010). Someone’s will has to prevail and, it is said, the Rule of Law does us no service by pretending that the element of will can be eliminated from politics or that decisiveness matters less than the “long deliberation” that was extolled in Aristotle's Rhetoric .

The sense of what good law-making and ordinary legal administration require conveyed by the principles of the Rule of Law is sometimes criticized as archaic. Partisans of the Rule of Law often think in terms of clearly drafted and prospective measures promulgated as norms that can stand in the name of the whole community and form a publicly acknowledged framework for their actions and transactions. But this is not really how law operates in the modern world. As Rubin 1989 points out, a great deal of modern legislation consists simply of a frame-working statute authoring agencies to develop much more detailed rules which are conveyed to the public—to the extent that is necessary—by modes of communication much more complex and nuanced than those envisaged in traditional models of the Rule of Law. For example, the principles comprised in Fuller 1964’s inner morality of law—see section 3.6 above—are recipes perhaps for the production of legislation that looks congenial to legalistic concerns about clarity and predictability. But it has little or nothing to do with the way law actually operates or the way legislatures communicate with agencies and agencies in turn communicate with those whose actions and businesses they supervise (Rubin 1989: 397–408).

At the same time, there are concerns about the mentality that is fostered by an excessive emphasis on the Rule of Law. In its most extreme form, the Rule of Law can have the effect of closing down the faculty of independent moral thought in the officials (the judges, for example: see Cover 1975) or in the ordinary members of a community, making them anxious in the face of uncertainty and distrustful of their own or others’ individual judgments (see Henderson 1990). Sometimes it is important, for the sake of clear and courageous moral judgment, not to exaggerate the importance of something being required by law. Other concerns about the mentality fostered by the Rule of Law include concerns about legalism and the tendency to over-formalize or over-bureaucratize relationships that are more healthily conceived in terms that are more informal. This is not just a matter of legalizing the personal realm; it is also a matter of understanding, for example, the damage that can be done to relations between officials (like social workers) and vulnerable clients by replacing bringing in rigid rules to replace relatively informal professional norms (Simon 1983).

8. Controversies about Application

As well as these debates about the value of the Rule of Law there is, within the camp of those who stand for legality, incessant controversy about what the Rule of Law requires. I have mentioned the general debates between defenders of formal, procedural, and substantive conceptions. There are also a number of particular debates.

How far should it be the mission of the Rule of Law to eliminate or reduce the amount of discretion in the way a society is governed? Some jurists, like Dicey (1885) and to a lesser extent Hayek (1944) insist that official discretion is inherently antithetical to the Rule of Law. Others, like Davis (1969), condemn this as an extravagant position, arguing that discretion is ineliminable in the modern administrative state. The rule of the Rule of Law is not to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake.

A similar question arises with regard to the use of norms that have the character of standards rather than rules. (A rule is like a numerical speed limit, whereas a standard is like a norm that requires people to drive at a “reasonable” speed.) Legal systems use both types of norm (Sunstein 1994); they use standards for cases where the appropriate decision may vary with ambient circumstances and it seems better to trust the judgment of those who face a particular situation, rather than laying it down in advance. There is an element of respect for individuals’ powers of discernment conveyed in the use of a standard. At the same time standards allow for less certainty in the law, especially when it is difficult for the person attempting to comply with the norm to predict how his judgment will be viewed by an official or by a court. Hayek suggests that

[o]ne could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction. (1972 [1944]: 78)

Whether he is right depends partly on how far we take the Rule of Law to be wedded to predictability: is predictability the be-all and end-all, or does the Rule of Law also promise a kind of legal system that frames and facilitates reason and thoughtfulness in human affairs?

Sometimes situations can be governed and disputes settled by informal social norms rather than by positive law, formally enacted and enforced (Ellickson 1994). Opinions differ as to whether this should be regarded as something altogether different from the Rule of Law. On the one hand, it looks like a genuine alternative, and little is gained by assimilating its desirable features, such as they are, to Rule-of-Law requirements. On the other hand, it does have something in common with understandings of customary law and conceptions of the Rule of Law (like that of Hayek 1973) that try to separate themselves from enactment and legislation. Also it is sometimes said that the Rule of Law works best when what is enforced in a society can be mapped on to its members’ norms of fairness and common-sense. This makes social participation in the integrity and upholding of law more likely (Cooter 1997). The closer this mapping, the less of an investment there has to be in formal legal promulgation: ordinary know-how can become a reliable guide to legal knowledge. However, one has to be very cautious with this. Modern law is inevitably technical in ways that far outstrip the possibilities of intuitive understanding (Weber 1968 [1922]: 882–95). The best that can be hoped for is some sort of occasional consonance between enacted law and informal understandings, and the sporadic character of that may well heighten rather than reduce unpredictability.

Is it reasonable to use the Rule of Law to evaluate the way a society responds to emergencies? It is often thought that emergencies require forms of state action that are more peremptory and less procedurally laborious than those required in normal times. As a matter of fact, a number of possibilities have been discussed (Scheuerman 2006). One is to insist, in the name of the Rule of Law, that existing constitutional safeguards should remain in force; that, after all, is what they were designed for and these situations are where they are most urgently needed. Alternatively, in emergencies, one might rely on a general spirit of flexibility and circumstantial sensitivity in state action that is encouraged even in normal times. On this second option, the Rule of Law does not present itself as a major constraint on the flexibility of state action in face of danger. As a third option, one might seek to preserve something like the Rule of Law by laying down in advance specific legal rules to govern emergencies—rules that suspend ordinary civil liberties guarantees for example or authorize widespread discretion on the part of officials to undertake action that would normally be governed by general rules of law. (Machiavelli proposed a version of this in his Discourses (1517), extolling the institution of dictator in the Roman republic.) This option has the advantage of predictability; but its disadvantage is that it endorses a sort of Rule-of-Law- lite , which may eventually infect or supersede the conception of the Rule of Law that is supposed to be normally applicable.

The Rule of Law applies not only within national polities but also increasingly between them, but in this arena its use remains under-theorized (for a helpful discussion, see Crawford 2003). Much of the work that has been done on the international Rule of Law simply adopts uncritically the perspective of those who say, at the national level, that the Rule of Law requires determinacy, clarity, and predictability (see Chesterman 2008). But this may be misconceived when we are talking about states rather than individuals as the subjects of law (Waldron 2011b). States are in a much better position to be informed of what their legal requirements are than individual men and women in society, since they are parties to the treaties and practices that establish international law. (Maybe, though, this point does not hold to the same extent when we consider the murky depths of customary international law.)

Anyway, the liberty of an individual state is not such an important value as the liberty of an individual person. It is not clear that national states need protection from international law and the power that it represents in the way that ordinary men and women need protection from the exercise of political power in society. Moreover, in areas like international human rights law, any presumption based on the Rule of Law in favor of the liberty of national states will tend to have detrimental effects on the liberty or well-being of individual men and women. We have to be careful therefore that invocation of the Rule of Law in the international realm does not undermine the values that are supposed to be secured by this ideal within national polities.

One additional point. It remains controversial whether international institutions themselves—like the United Nations and its agencies—should be bound by the Rule of Law. This odd because these agencies are among the most vociferous advocates of the Rule of Law so far as its application to national states is concerned. The reluctance here stems in large part from an estimation of the importance of diplomatic immunity. UN officials worry that if they and their agencies are held legally liable for malfeasances of various kinds associated with peace-keeping activities, there is a danger that the whole basis of international action might unravel. The danger is probably exaggerated, however, and those who make this argument would not for a moment countenance a similar argument in the sphere of national states.

The Rule of Law is often cited as the key to nation-building and to the establishment of new democracies. Indeed it is often argued (e.g., Barro 2000) that a new state needs Rule-of-Law institutions—effective courts and commercial codes that can secure property rights and the enforcement of contracts—more than or even before it needs democratic institutions such as an elected legislature. It is said that a legal system in a developing country dominated by legislative action will neither inspire the confidence nor establish the stability that modern governance and investment require. (For discussion of these arguments, see Carothers 1998 and—more critically—Carothers 2009.) This raises once more the question of relation between the Rule of Law and legislation—only now it takes us also in the direction of considering an rather uncomfortably direct trade-off between Rule of Law values and democracy.

Finally, an analytic question. What is the relation between the Rule of Law and the concept of law? A case can be made—controversial, no doubt—for bringing the two of them together (see Waldron 2008 and also Simmonds 2008). The concept of law could be understood to embrace the fundamental elements of legality, though this identification looks less plausible the more substantive the conception of the Rule of Law is held to be. On this account, a system of governance doesn’t count as law unless it exhibits the characteristic forms and processes that we associate with legality. Otherwise we lose our sense of the institutional distinctiveness of law as a way of ruling a society. We saw earlier that Lon Fuller (1958 and 1964) envisaged a connection along these lines. So, in his later work did Ronald Dworkin. Dworkin (2004) asked us to consider a situation in which judges and lawyers were grappling with hard issues of interpretation or with difficult dilemmas posed by multiple sources of law. He said that in such cases, we might say that what was required as a matter of law might be different from what was required as a matter of justice. That is a familiar separation (even if Dworkin thought it was narrower and more blurred than most legal positivists believed). But he said, it would make no sense to say that what was required as a matter of legality or respect for the Rule of Law was different from what the legal solution was to this case. To figure out the legal solution we have to address the various legal and political materials precisely in light of our commitment to legality.

A conception of legality is … a general account of how to decide which particular claims are true…. We could make little sense of either legality or law is we denied this intimate connection. (Dworkin 2004: 24–5)

However this is not the received position. According to Joseph Raz (1977) and others you cannot understand what the Rule of Law is unless you already and independently understand what law is and the characteristic evils that law is likely to give rise to (which the Rule of Law tries to prevent). On this account, legality represents a particular set of concerns about law that have emerged in our civilization. The fact that these concerns are undoubtedly moral in character (even though they are not comprehensive moral concerns) means that—in Raz’s view—it is better to keep them separate from the concept of law itself, for fear of introducing a moral element into that concept.

• Aristotle, The Politics (c. 350 BC), Stephen Everson (trans.), Cambridge: Cambridge University Press, 1988.
• –––, The Rhetoric (c. 350 BC), Rhys Roberts (trans.), New York: Cosimo Classics, 2010.
• Barro, R., 2000, “Democracy and the Rule of Law”, in Governing for Prosperity , B. de Mesquita and H. Root (eds.), New Haven: Yale University Press.
• Bentham, J., 1970 [1782], Of Laws in General , H.L.A. Hart (ed.), London: Athlone Press.
• –––, 1792, Truth versus Ashhurst; or, Law as it is, Contrasted with what it is Said to be . [ Bentham 1792 available online .
• –––, 1931 [1802, 1864], The Theory of Legislation , C.K. Ogden (ed.), London: Kegan Paul, Trench, Trubner & Co.. This was originally published in French translation (done by Etienne Dumont) in 1802 and translated back into English in 1864 (by Richard Hildreth), the latter is the translation used in the Ogden edition.
• Bingham, T., 2010, The Rule of Law , London: Allen Lane.
• Carothers, T., 1998, “The Rule-of-Law Revival”, Foreign Affairs , 77: 95–106.
• –––, 2009, “Rule of Law Temptations”, Fletcher Forum of World Affairs , 33: 49–61.
• Cass, R., 2001, The Rule of Law in America , Baltimore: Johns Hopkins University Press.
• –––, 2004, “Property Rights Systems and the Rule of Law”, The Elgar Companion to the Economics of Property Right , E. Colombatto, (ed.), Oxford: Edward Elgar Publications, pp. 131–63.
• Chesterman, S., 2008, “An International Rule of Law?” American Journal of Comparative Law , 56: 331–61.
• Cooter, R., 1997, “The Rule of State Law versus the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development”, in Annual World Bank Conference on Development Economics , Washington: World Bank, pp. 191–206.
• Cover, R., 1975, Justice Accused: Slavery and the Judicial Process , New Haven: Yale University Press.
• Craig, P., 1997, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” Public Law , [1997]: 467–87.
• Crawford, J., 2003, “The Rule of Law in International Law”, 24 Adelaide Law Review , 24: 3–12.
• Davis, K.C., 1969, Discretionary Justice: A Preliminary Inquiry , Louisiana State University Press.
• Dicey, A.V., 1982 [1885], Introduction to the Study of the Law of the Constitution , London: McMillan and Co. Page numbers are from the 1982 version based on the 8 th edition (1915), Indianapolis: Liberty Classics. [ Dicey 1982 [1885] available online ]
• Dworkin, R., 1977, Taking Rights Seriously , Cambridge: Harvard University Press.
• –––, 1985, “Political Judges and the Rule of Law”, in his A Matter of Principle , Cambridge, Harvard University Press, pp. 9–32.
• –––, 2004, “Hart’s Postscript and the Character of Political Philosophy”, Oxford Journal of Legal Studies , 24: 1–37.
• Ellickson, R., 1994, Order without Law: How Neighbors Settle Disputes , Cambridge: Harvard University Press.
• Endicott, T., 1999, “The Impossibility of the Rule of Law”, Oxford Journal of Legal Studies , 19: 1–18.
• Epstein, R.A., 2011, Property Rights and the Rule of Law: Classical Liberalism Confronts the Modern Administrative State , Cambridge: Harvard University Press.
• Finnis, J., 1980, Natural Law and Natural Rights , Oxford: Clarendon Press.
• Fortescue, J., 1997 [1471], On the Laws and Governance of England , Shelley Lockwood (ed.), Cambridge: Cambridge University Press.
• Fuller, L., 1958, “Positivism and Fidelity to Law: A Reply to Hart”, Harvard Law Review , 71(4): 630–72. doi:10.2307/1338226
• –––, 1964, The Morality of Law , New Haven: Yale University Press.
• –––, 1978, “Forms and Limits of Adjudication”, Harvard Law Review , 92(2): 353–409. doi:10.2307/1340368
• Goodpaster, G., 2003, “Law Reform in Developing Countries”, 13 Transnational Law and Contemporary Problems , 13: 659–98.
• Hamilton, A., J. Madison, and J. Jay, 1787, The Federalist Papers , New York: Signet Classics, 2003.
• Harrington, James, 1656, The Commonwealth of Oceana , J.G.A. Pocock (ed.), Cambridge: Cambridge University Press, 1992.
• Hart, H. and A. Sacks, 1958, The Legal Process: Problems in the Making and Application of Law , Westbury: Foundation Press, 1994.
• Hart, H.L.A., 1965, “Book Review: Lon Fuller, The Morality of Law ”, Harvard Law Review , 78: 1281–96.
• –––, 1961, The Concept of Law , 3 rd edition, Oxford: Clarendon Press, 2012.
• Hayek, F.A., 1972 [1944], The Road to Serfdom , Chicago: University Of Chicago Press.
• –––, 1960, The Constitution of Liberty , Chicago: University of Chicago Press.
• –––, 1973, Rules and Order , Volume 1 of Law, Legislation and Liberty , Chicago: University of Chicago Press.
• Henderson, L., 1991, “Authoritarianism and the Rule of Law”, Indiana Law Journal , 66: 379–456.
• Hobbes, T., 1983 [1647], De Cive: the English version , H. Warrender (ed.), Oxford: Oxford University Press.
• –––, 1991 [1651], Leviathan , R. Tuck (ed.), Cambridge: Cambridge University Press.
• Locke, J., 1689, Two Treatises of Government , P. Laslett (ed.), Cambridge: Cambridge University Press, 1988.
• Machiavelli, N., 1517, Discourses on Livy , H. Mansfield and N. Tarcov (ed.), Chicago: University of Chicago Press, 1996.
• Marmor, A., 2004, “The Rule of Law and Its Limits”, Law and Philosophy , 23: 1–43.
• Montesquieu, C., 1748, The Spirit of the Laws , A. Cohler, C. Miller, and H. Stone (eds.), Cambridge: Cambridge University Press, 1989.
• Nozick, R., 1974, Anarchy, State and Utopia , New York: Basic Books.
• Oakeshott, M., 1983, “The Rule of Law”, in his On History, and Other Essays , Totowa, NJ: Barnes and Noble, 129-78.
• Plato, The Statesman , (c. 370 BC), Julia Annas (trans.), Cambridge: Cambridge University Press, 1995.
• Posner, E, and A. Vermeule, 2010, The Executive Unbound: After the Madisonian Republic , Oxford: Oxford University Press.
• Posner, R., 1995, Overcoming Law , Cambridge: Harvard University Press.
• Postema, G., 1986, Bentham and the Common Law Tradition , Oxford: Oxford University Press.
• Raz, J., 1977, “The Rule of Law and its Virtue”, in his book, The Authority of Law , Oxford: Oxford University Press, 1979.
• Rawls, J. 1999, A Theory of Justice , Cambridge: Harvard University Press.
• Rubin, E., 1989, “Law and Legislation in the Administrative State”, Columbia Law Review , 89: 369–426.
• Scalia, A., 1989, “The Rule of Law as a Law of Rules”, University of Chicago Law Review , 56: 1175–88.
• Schauer, F., 1991, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life , Oxford: Oxford University Press.
• Scheuerman, W., 2006, “Emergency Powers and the Rule of Law after 9/11”, Journal of Political Philosophy , 14: 61–84.
• Schmitt, Carl, 1923, The Crisis of Parliamentary Democracy , Ellen Kennedy (trans.), Cambridge, MIT Press, 1985.
• Simmonds, N.E., 2008, Law as a Moral Idea , Oxford: Oxford University Press.
• Simon, W., 1983, “Legality, Bureaucracy and Class in the Welfare System”, Yale Law Journal , 92: 1198–1269.
• Solum, L., 1994, “Equity and the Rule of Law”, in Nomos XXXVI: The Rule of Law , Ian Shapiro (ed.), New York: New York University Press, pp. 120–47.
• Sunstein, C.R., 1994, “Rules and Rulelessness”, (Coase-Sandor Institute for Law and Economics Working Paper No. 27), University of Chicago Law School. [ Sunstein 1994 available online ]
• Tamanaha, B., 2004, On the Rule of Law: History, Politics, Theory , Cambridge: Cambridge University Press.
• Tashima, W., 2008, “The War on Terror and the Rule of Law”, Asian American Law Journal , 15: 245–65.
• Thompson, E.P., 1975, Whigs and Hunters: The Origin of the Black Act , Harmondsworth: Penguin Books.
• Tully, J., 1980, A Discourse on Property: John Locke and his Adversaries , Cambridge: Cambridge University Press.
• Waldron, J., 1999, The Dignity of Legislation , Cambridge: Cambridge University Press.
• –––, 2002, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law and Philosophy , 21: 137–64.
• –––, 2007, “Legislation and the Rule of Law”, Legisprudence , 1: 91–123.
• –––, 2008, “The Concept and the Rule of Law”, Georgia Law Review , 43: 1–61.
• –––, 2011a, “The Rule of Law and the Importance of Procedure”, in Nomos 50: Getting to the Rule of Law , James Fleming (ed.), New York: New York University Press, 3–31.
• –––, 2011b, “Are Sovereigns Entitled to the Benefit of the Rule of Law?” European Journal of International Law , 22: 315–43.
• –––, 2013, “Separation of Powers in Thought and Practice”, Boston College Law Review , 54: 433–68.
• Weber, M., 1968 [1922], Economy and Society , G. Roth and C. Wittich (eds.), Volume II, Berkeley: University of California Press.
• Winston, K., 2005, “The Internal Morality of Chinese Legalism”, Singapore Journal of Legal Studies , 2005(Dec): 313–47.
• World Justice Project, 2011, Rule of Law Index , (2011 edition), available online , see also Other Internet Resources below.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• American Bar Association Division for Public Education: The Rule of Law
• The United Nations Rule of Law Indicators
• World Justice Project Rule of Law Index ( WJP Rule of Law Index 2015 (static pdf version) )

Bentham, Jeremy | constitutionalism | Hayek, Friedrich | law: and ideology | liberalism | limits of law | nature of law | nature of law: legal positivism

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Home > Journals > Law Review > Vol. 61 (2021) > No. 2 (2021)

The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights

Bessler, John D.

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in Europe, America’s founding period, and the post–World War II era. In particular, the essay discusses the intellectual contributions of historical figures such as the Italian criminal-law theorist Cesare Beccaria, the French jurist, Baron de Montesquieu, and American revolutionaries who played major roles in laying the now centuries-old foundation for the development of the modern-day Rule of Law concept (i.e., in drafting early American constitutions and laws, including the U.S. Constitution and its Bill of Rights). The essay explores a wide range of topics, from the creation of the United Nations and the ratification of international conventions and human rights treaties, to the adoption of South Africa’s post–apartheid constitution, to Donald Trump’s continuous and systematic assault on the Rule of Law, human rights, and democratic institutions and norms. The essay also highlights the Rule of Law’s symbiotic relationship to the protection of fundamental human rights such as the rights to equality, to vote, and to be free from discrimination, cruelty and torture. Arguing that various Trump Administration acts and policies (e.g., separating children from their parents at the U.S.-Mexico border and the death penalty’s use) and the outrageous and brazen efforts of Donald Trump and his campaign and allies to discriminate against and disenfranchise voters violate core Rule of Law principles, the essay concludes by emphasizing the Rule of Law’s continuing and critical importance to the protection of civil liberties and fundamental human rights in the twenty-first century.

Recommended Citation

Bessler, John D., The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights , 61 S anta C lara L. R ev . 467 (2021). Available at: https://digitalcommons.law.scu.edu/lawreview/vol61/iss2/3

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The Rule of Law and Why It Matters

Published: May 17, 2017

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At a Glance

• Civics & Citizenship
• Democracy & Civic Engagement

About This Lesson

John Carey, professor of government at Dartmouth University, believes that next to free and fair elections, one of the most important defining characteristics of democracy is the rule of law. While the citizens of a democracy choose their leaders and representatives through elections, the rule of law defines the relationship between representatives and citizens between elections.

So what is the rule of law? Most simply put, it means that laws apply equally to everyone in a democracy, even the most powerful government officials and elected leaders. It also means that laws are created through a predetermined, open, and transparent process, not by the whim of the most powerful members of society.

This lesson provides students with the opportunity to both learn what it means to respect the rule of law and consider its importance in a democracy. Students will listen to John Carey, professor of government at Dartmouth University, tell a story from his travels to Chile that illustrates how a country's respect for the rule of law can be apparent even in the most seemingly mundane circumstances. Then they will research current events from around the world that illustrate the relationship between the rule of law and healthy democracy.

Essential Questions

• What does it mean to respect the rule of law?
• What impact does the rule of law have on democracy?

What’s Included

This lesson is designed to fit into one 50-minute class period and includes:

3 activities 1 audio

Save this resource for easy access later.

Lesson plan.

Define Rule of Law

Tell the class you’ll be creating a working definition for rule of law , a concept that dates back to antiquity. Begin by asking students to share any ideas and information they have about the rule of law. Then, share these two quotations from the Magna Carta and Common Sense : The rule of law was first codified in Western European government in the Magna Carta in 1215, when English nobles demanded that King John’s powers to arbitrarily arrest or imprison them be curtailed. The charter states that even the King had to follow the law:

No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will he proceed against or prosecute him, except by the lawful judgment of his peers and the Law of the Land. 

In his 1776 pamphlet Common Sense , American founding father Thomas Paine wrote that the law itself ought to be more important and more powerful than any individual, including a king:

But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. . . in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

Discuss together: What do the ideas in these quotations add to your working definition of the rule of law?

Optionally, share the four core principles of the rule of law, as defined by the World Justice Project, which measures respect for rule of law in countries around the world: 1

The government and its officials and agents as well as individuals and private entities are accountable under the law. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

• 1 “What is the Rule of Law?,” World Justice Project website, accessed May 12, 2017.

Listen to the Interview

Play the audio clip John Carey on the Rule of Law . To help guide students' listening, choose questions from the list below and share them with students before playing the audio. Students can respond to the questions as they listen.

After playing the audio, give students a few minutes to complete any answers they did not finish while listening. Then lead a class discussion based on these questions:

How does Carey define the rule of law? Which ideas from the Magna Carta, Common Sense, and the World Justice Project does he emphasize? Summarize the story Carey tells about his travel to Chile. Why does he use that story to describe the rule of law? How is the rule of law related to the protection of human rights? How might an absence of rule of law lead to violations of human rights? Why does Carey suggest that it is difficult to identify when the rule of law is being violated at the moment it is happening? What does he say makes it hard to recognize when democracy is being eroded? Carey says that protecting democracy when it is under threat requires widespread recognition of when a line has been crossed. What does widespread recognition look like? Why is it difficult to build a critical mass of people who stand up for democracy? What factors might encourage people to look the other way?

Related Materials

• Audio John Carey on the Rule of Law

Research Rule of Law around the World

Students can better understand the importance of the rule of law in a democracy by investigating how it is valued and challenged in different countries around the world. They might start their investigation by looking at the World Justice Project's Rule of Law Index . (The option to “View Tour” on the site is an excellent place to begin.) Examining the criteria WJP uses to rank countries and the outcomes of their evaluation can lead students to a deeper understanding of the rule of law as a principle and as it is experienced in everyday life.  

Students can also research recent news stories online. Recent reports about South Korea and Turkey are good entry points for understanding how the rule of law is at work, and at stake, in choices that leaders and citizens are making around the world.

• Link World Justice Project's Rule of Law Index

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Overview - Rule of Law

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers .  In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people.  Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress.  The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule.  There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions.  Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

Rule of Law

If there is no constraint on a ruler’s power, then he can make whatever rules he pleases and not obey the rules he makes. He can also change the rules whenever he wants. If he doesn’t like someone who owns a business, he can make that business illegal, or create a regulation that he knows will bankrupt it. If he doesn’t like what people say about him, he can make criticism of him illegal. He has total power to punish anyone he wants and to exempt his friends from laws that others must obey.

When government officials can make any laws they please—and hold themselves above the law—there is less economic growth, less creativity, and less happiness. Entrepreneurs will not be willing to risk time and money starting businesses. Writers and speakers will restrain their words. Everyone will worry that his freedoms can be destroyed at the whim of a powerful government agent.

A government with unpredictable and arbitrary laws, wrote Madison, “poisons the blessings of liberty itself” (James Madison, Federalist No. 62, 1788).

George Washington is depicted addressing the Constitutional Convention of 1787 in this painting by Junius Brutus Stearns.

The many benefits of freedom we take for granted in the United States—to speak our minds, to gather with whom we please, to practice our religions or refrain from practicing a religion, and to build businesses—are protected because we live under the rule of law. This means that we are governed not by officials who can make any rules they want, but by laws that are difficult to change (and therefore stable), limited in scope, and applied to every citizen—including the people who make them. The rule of law means, as John Adams explained in the Massachusetts Constitution, “a government of laws and not of men.”

Of course, Adams knew that laws are made by someone. His point was that they should be consistent, just, and applied to everyone equally. Instead of having a king pass down edicts, the American Founders established a system in which our elected representatives make laws within the boundaries laid down by the Constitution and designed to serve, as the preamble to the Constitution makes clear, “the general welfare” of society.

United States Supreme Court Building

While kings often made rules designed to tell people what to do, a rule of law is more about crafting clear, simple, fair rules, and giving citizens the maximum possible freedom to decide for themselves how to live their lives. The Founders understood that the pursuit of happiness was a path of discovery, invention, and hard work that cannot be followed when government is constantly telling us what we may or may not do.

The Founders also understood that the rule of law is essential to protecting minority rights. Remember that they feared not just cruel kings, but tyrannical majorities that might be convinced to take away the liberty of people they dislike because of their race or wealth or religion. The rule of law insures that laws are not designed to target certain groups. Even if the majority of voters decided, for example, to make Muslims pay higher taxes, the Constitution (and the principle of the rule of law that it reflects) forbids singling out a minority group in this way.

Not only did the Founders establish a rule of law by limiting the power of government to make laws and guaranteeing that our rights are protected when laws are written, they also insured that laws will be made in the open, according to clear rules.

In Article I, Section 7 of the Constitution, for example, they required that any federal tax law must be written in the House of Representatives, whose short terms of office make them especially accountable to voters.

The Founders also crafted rules designed to slow the production of laws. While modern-day critics sometimes complain that it takes our government too long to act, this is exactly what the Founders had in mind. They feared what would happen if government officials were too quick to respond to temporary passions or could change rules with great speed.

This is the Old Senate Chambers in the United States Capitol. It is now only used for tours and ceremonies.

“It will be of little avail to the people,” Madison argued, “that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…or undergo such incessant changes, that no man who knows What the law is today, can guess what it will be tomorrow” (James Madison, Federalist No. 62, 1788).

As with every part of the Constitution, the Founders understood that words on paper only have so much power. They knew that ultimately the rule of law depends on people with the courage, self-reliance, and wisdom to make prudent decisions, and who have enough tolerance for others to let them live as they see fit.

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The benefits of freedom are safest when officials cannot make arbitrary and unpredictable laws. The rule of law means that laws are stable, limited in scope, and applied to every citizen, including those who make them. Laws must be created in the open, according to clear rules, and must reflect the consent of the governed. Ultimately, the rule of law depends on people with the courage, self-reliance, and wisdom to make prudent decisions, and who have enough tolerance for others to let them live as they see fit.

Home — Essay Samples — Law, Crime & Punishment — Constitution — Understanding the Rule of Law: A Scholarly Perspective

Understanding The Rule of Law: a Scholarly Perspective

• Categories: Civil Law Constitution Society

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Words: 1889 |

10 min read

Published: Oct 31, 2018

Words: 1889 | Pages: 4 | 10 min read

• Supremacy of Law: Where no man is above law or can only be punished for a breach of the law. Every person is to be governed by law including those who are administering it and also governs the lawmakers while exercising their powers to make and administer the law. More so they are bound to justify their act by proper reasoning otherwise the whole motive of the doctrine is hampered.
• Equality before the law: The principle states equal an ordinary law of the land for all the classes of people irrespective of their caste, creed, religion etc. and are bestowed to the regular law courts. The fair laws should be administered and enforced in just and proper manner.
• The predominance of legal spirit: According to Dicey written guarantee is immaterial unless there is a mechanism by which it can be enforced. Such authority is believed to be present in Courts which should be unbiased and free from any kind of external influences. To further add judicial control of the Administrative action is an important pillar of Administrative Law.
• Laws must be prospective, open, and clear.
• Laws should be relatively stable.
• Making of Laws
• Independence of the judiciary
• Principles of Natural Justice
• Courts having review power
• Courts should be easily accessible

Works Cited

• Raz, J. (1977). The rule of law and its virtue. Law Quarterly Review, 93(2), 195-214.
• Hart, H. L. A. (1961). The concept of law. Oxford University Press.
• Bingham, T. (2010). The rule of law. Penguin Books.
• Gowder, P. (2016). The rule of law in the real world. Cambridge University Press.
• Shapiro, I. (Ed.). (1994). The rule of law: Nomos XXXVI. NYU Press.
• Dubber, M. D., & Tomlins, C. (Eds.). (2018). The Oxford handbook of the rule of law. Oxford University Press.
• Bellamy, R. (2010). The rule of law and the separation of powers. Routledge.
• Sellers, M., & Tomaszewski, T. (Eds.). (2010). The rule of law in comparative perspective. Springer.
• Neumann, F. (1974). The rule of law: A comparative perspective. SUNY Press.
• Marshall, D. (2014). The international rule of law movement: A crisis of legitimacy and the way forward. Harvard International Law Journal, 55(2), 409-448.

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Trump and Allies Forge Plans to Increase Presidential Power in 2025

The former president and his backers aim to strengthen the power of the White House and limit the independence of federal agencies.

Donald J. Trump intends to bring independent regulatory agencies under direct presidential control. Credit... Doug Mills/The New York Times

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By Jonathan Swan ,  Charlie Savage and Maggie Haberman

• Published July 17, 2023 Updated July 18, 2023

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

He wants to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs a president doesn’t like — a tactic that lawmakers banned under President Richard Nixon.

He intends to strip employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as “the sick political class that hates our country.”

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