The rule of law initially seems a simple and straightforward idea, concisely articulated by Aristotle in his view that the laws, not men, should rule in a well-ordered polity. This aspirational prescription for good government unites thinking about the rule of law from the ancient Greeks down to contemporary theorists. Though men and women do, of course, wield public power, the rule of law represents a normative standard by which all legal subjects can evaluate and challenge official public action. Because the concept stands for the supremacy of law over unconstrained political power, a commitment to the rule of law guarantees that public officials are both authorized and bound by law in the exercise of their functions and powers. In a legal system governed by the rule of law, all persons in the polity will possess formal equality, ensuring that elected officials and high-ranking members of the executive branch of government will be held legally accountable like any other person.
A Brief Overview Of The Historical Development Of The Rule Of Law
In ancient and medieval thought, the concept of the rule of law imperfectly regulated the power of the sovereign through obligations embedded in positive law—such as the Magna Carta—as well as obligations believed to be part of natural or religious law. In the seventeenth and eighteenth centuries, the rule of law shifted its meaning to signify political resistance against any form of unconstrained political power in the state, no matter its source or institutional location. In English constitutional law, the political struggle focused on the capacious prerogative power of the monarch. During this period, the idea of the rule of law as a restraint on sovereign power solidified, contributing to the demise of absolute monarchy as a legitimate form of government in the West.
The rule of law typically implies a form of constitutionalism, but does not dictate type or content. It is related to the concept of the Rechtsstaat—the state of law—in the German tradition of constitutionalism. Both concepts, despite different histories, contain similar principles. The Rechtsstaat arguably offers less of a distinction from the notion of rule by law, where law is viewed as a malleable instrument of state power such that government simply acts through laws it creates, but without being affected by constraining principles. In Anglo North American legal systems, rule of law principles and values formed part of the common law, and later achieved formal constitutional status in written documents such as the U.S. Constitution.
The introduction touched on three predominant themes that run through the political history of the rule of law, each possessing a proximate cluster of meanings: the rule of law, not men; formal legality; and, government limited by law. These three themes attest to its central function of imposing effective legal restraints on political power. Nevertheless, many legal and political theories consider the rule of law an important, but, following Jeremy Waldron’s characterization (2002), “essentially contested concept” because of fundamental disagreements about its content and its scope. Before discussing these theoretical debates, this entry analyzes several of the less controversial features of the rule of law: the legal core, the necessary institutional arrangements, and broad sociocultural orientations.
The Legal Dimension As A Formal Conception Of The Rule Of Law
In legal theory, the rule of law commonly entails a set of legal procedures and forms that regulate and legitimize statutes, judgments from courts of law, and administrative decisions. Rules, principles, and enacting processes must be in place for law to be considered valid. In this way, the rule of law acts as a metalegal principle organizing a subsidiary set of standards that generate legal validity and contribute to political legitimacy because legal subjects judge the lawmaking capacity and resulting laws as worthy of respect. Without such respect, compliance with the law can only ever be partial.
In many theories of the rule of law, a legal system must aim for a set of formal characteristics that are public and that can guide the conduct of all legal subjects. A common set of principles has evolved over time and includes those enunciated by Lon Fuller (1969) and Joseph Raz (1979): publicity, nonretroactivity, clarity, generality, consistency, stability, capability of being obeyed, and declared rules constraining the administration of law as well as the discretion of public officials. Despite overlapping agreement on many of the principles, substantial disagreement exists concerning their respective content, importance, and scope.
The presumed virtue of these formal requirements rests on the belief that they permit individuals to predict legal responses to their behavior by state officials, thereby avoiding sanctions and enabling them to take into account relevant legal duties, as well as to benefit from a circumscribed range of rights, liberties, and freedoms. Such a presumption is especially important for criminal law. People also can interact with each other secure in the knowledge that they are aware which rules likely will apply to their behavior should a dispute arise between them. Because prior knowledge is not universally true for all legal subjects, this claim is not empirical. Instead, its validity rests on the ability of the law as a normative order to align with background political moralities as well as with other coexisting normative systems (e.g., custom, etiquette, workplace, religious or business norms and interactions) in order to be maximally effective. Individuals can also rely on a certain determinacy in the application of law such that like cases will be treated alike. In this minimalist form, the rule of law can be equated with legal formalism because adherence to the rule of law does not mean that the resulting laws are substantively just, only that their form and manner of promulgation are valid and meet the minimum legal conditions considered essential for the realization of procedural justice. Because formal characteristics are in the service of predictability, clarity, and stability, they also contribute the idea of the rule of law as a distinctive mode of social ordering that potentially generates a moderate form of politics.
The legal dimension provides the fundamental basis for a narrower conception of the rule of law—one that possesses minimal content. The political theory buttressing this minimal conception promotes the rule of law as a system of public norms addressed to legal subjects who are considered rational beings and who will comply with the impartial administration of these rules. The legal values informing the resulting procedural standards will meet what John Rawls (1999) terms “justice as regularity” as a component of justice as fairness.
The Institutional Dimension Of The Rule Of Law And Its Relative Autonomy From Politics
The relative autonomy of law from politics is a central requirement of the rule of law. Though it is impossible to isolate law from politics completely, a complex institutional structure helps guarantee impartiality and fairness in legal processes. One way of thinking about this relative autonomy is through the idea of the separation of powers as a fundamental constitutional principle. Here, sovereign public power is divided and housed within three different branches of government, each with its own function and staff: the executive, the judiciary, and the legislature. In reality, these three branches of government experience overlap, particularly the potential dominance of the executive in Westminster systems of government. In parliamentary systems, the executive branch exerts considerable influence in appointing judges as well as in controlling the legislative agenda during a majority government. In the U.S. system of government, Congress, the judiciary, and the president are in principle co-equal branches of the federal government. Nevertheless, even in the American presidential system, the executive branch possesses significant powers, and the president plays a strong executive role.
One important institutional outcome of the rule of law is the commitment to impartial, public, and independent tribunals charged with resolving disputes between individuals, as well as among the state and affected groups and individuals. The rule of law therefore supports the principle of judicial independence and the right to a fair hearing before a tribunal—a tribunal that includes both a court of law as well as an administrative body. General principles of due process, and specific principles such as habeas corpus, are fundamental to the endorsement of institutional processes as independent and impartial. Judges in Western judiciaries usually benefit from certain constitutional guarantees of protection, such as security of tenure, financial security, and administrative independence.
Contrary to the views of prominent Victorian constitutional theorist, Albert Venn Dicey (1996), the expansion of administrative agencies, concurrent with the growth of the modern welfare state, has not resulted in the end of the rule of law. The scope of discretionary decision-making delegated to agencies, and the functioning of their internal procedures, have both come to be constrained by a combination of statutory and judicial requirements. Judicial oversight through the common law remains a key rule of law guarantor of accountability in the regulatory state.
With the recent global trend towards constitution-making, the rule of law has informed the creation of written constitutions, specialized constitutional courts, and an overarching rights discourse usually realized in a bill of rights. One significant consequence of a written constitution that guarantees individual and/or group rights, however, is the concomitant institutional reallocation of public power. In such a constitutional state, the judiciary receives the power to review and strike down or invalidate legislation that offends the constitution in terms of individual rights, division of powers, or other types of content requirement. In older conceptions of the rule of law in public law, the courts were conceived primarily as overseers of the arbitrary actions of executive and administrative actors. Judicial review places legislatures under scrutiny. Depending on the theorist, such a change either represents the triumph of rights and the rule of law or the demise of democracy and a balanced constitutional state. Some commentators characterize the new institutional arrangement as the rule of judges, instead of the rule of law, since there appears to be little in the way of obvious and effective constraints on judicial discretion and arbitrariness in judicial approaches to the interpretation of law. In countries with written constitutions, debates about constitutional balance and judicial activism remain contentious.
The Sociological Dimension Of The Rule Of Law As A Shared Orientation Within A Political Community
Sociological and historical approaches to the rule of law emphasize its contingent social and cultural dimensions. The sociological dimension is far too broad and heterogeneous for this entry to cover; therefore two key aspects will be highlighted: the role of the legal profession and a rule of law culture.
Historically, lawyers have played important roles in legal, economic, and political liberalization in the West. Lawyers argued for parliamentary liberties in the English revolutions (1640–1660, 1688), worked on constitution-making in the American Revolution (1775–1783), and fought for political freedoms in the French Revolution (1789–1799). And, though often conservative and devoted to the maintenance of its professional status, an independent bar may provide a center of resistance to authoritarian rule as well as indirectly promote political pluralism. The recent lawyers’ movement in Pakistan challenging interference in the judiciary by General Pervez Musharraf ’s regime remains a potent example. Nevertheless, it is problematic to suggest that lawyers and legal associations can automatically be assumed to be liberal democrats or republican defenders of the common good, images made famous by figures like the fictional lawyer Atticus Finch. Lawyers can be antistatist or prostate, independent or deeply bound to commercial interests, democratic or elitist, self-interested or devoted to the public good.
Despite the fact that the nature of the legal profession has varied greatly over time and between common law and civil law countries, the development of a specialized class of persons charged with the authority to interpret the law on behalf of clients or on behalf of the public represents a significant achievement. Though these legal officials do perform varying functions, the rule of law is premised on institutional arrangements and agents making the law real, contestable, effective, and accessible to those affected by it. Lawyers will ideally act on behalf of their private clients or governments. Judges ideally will act according to their particular institutional role morality that demands that they enforce rules impartially, without corruption, and showing no bias or favoritism to any individual, whether or not the individual is a private litigant or a state official.
Different countries also adhere to the sociological dimension in varying degrees. Universal access to justice as a right, for example, is unevenly distributed and legal services in many countries remain out of the reach of the average citizen (though it is sometimes available through programs such as legal aid). States are also not uniform in their commitment to effective remedies nor are legal officials such as the police consistent in enforcing laws. Lawyers may advise minimal compliance with existing rules or they may encourage litigation to improve the legal position of their more affluent clients. Judges may adhere to the text of written law to the exclusion of the intent of law, justice, mercy, or reasonableness.
It is clear that the rule of law cannot exist unless it is embraced by the populace as an important political-legal ideal. When it is widely shared, the rule of law possesses a resiliency in the face of government intransigence or perceptions that the law is unfair because it reflects particular societal interests. Societies emerging from authoritarian regimes may not possess or fully develop this orientation because citizens fear and distrust state law and legal officials. For similar reasons, countries where the legal rules and the legal system have been transplanted may also see the rule of law as a threat or a sham, ensuring that only a weak form will develop. These functional and legitimacy problems attest to the importance of creating a rule of law culture or culture of legalism in government and throughout civil society, but one that does not take the legalism as the primary value to be realized at the expense of other important considerations.
The Political Dimensions Of The Rule Of Law
The rule of law has withstood many criticisms as an unrealistic pipe dream and a hegemonic sham. Early twentieth century legal realists emphasized the subjective nature of judging that undermined the autonomy of law from politics.
Legal realists argued that behind every determination in law lay ideological commitments, only some of which were made explicit. Such commitments appeared natural and self-evident in judicial decision-making, but were actually the result of judges’ personal attitudes or values. Deconstructionist critiques of the rule of law denied the possibility of determinacy of meaning, jurisprudential coherence, justice as fairness, and no contradiction. Marxists critiques suggested that the rule of law conceals and legitimizes political domination by a ruling economic class. Finally, Foucauldean-derived critiques argued that the rule of law is simply one mode of power among many in society.
Internal disagreements among rule of law theorists are also robust. As alluded to previously, conceptions of the rule of law can be placed on a continuum ranging from “thin” to “thick” depending on the preferred set of values (Tamanaha 2004, 91–92). In contrast to the minimal version of the rule of law that has been presented thus far and which generally imposes only procedural requirements, thicker accounts of the rule of law remain contentious because they each demand differing substantive requirements in essential content. Libertarians, such as Friedrich von Hayek (1978), argue for the necessity of certain individual rights—property, contract, security, privacy—as a core. Liberal theories emphasize individual rights, but also normative concerns regarding human dignity and maximum inclusion. Ronald Dworkin’s (1985) “rights conception” of the rule of law relies on the view that citizens have pre-existing moral and political rights that are positively recognized in society’s “rule book” and that individuals can demand to have enforced by judges. Other theorists, such as Trevor Allen (2001) and Jürgen Habermas (1999), argue that the rule of law is inextricably linked with certain institutional arrangements that go beyond formal legality to include individual rights and democracy. Republican theories consider the concept of the rule of law as a means to renounce domination and unconstrained power as a basis of rule. In contrast to the idea of freedom as noninterference that constitutes the basis of liberal and libertarian conceptions of liberty, republicanism relies on a conception of legal freedom as nondomination. The thickest versions of the rule of law require the recognition of social and economic rights in order to advance substantive equality as part of a theory of distributive justice or to redress historic injustice. They may also require the enforcement of human rights as integral to a rule of law order.
Finally, the tragedy of the terrorist attacks on September 11, 2001, has revived a much older conceptual debate regarding the possibility and desirability of limiting sovereign power, the modern sovereign being a president or a parliament. From Aquinas to Hobbes to Schmitt, political theorists have conceptually questioned the ability of the rule of law to bind the sovereign when it is the sovereign who declares the laws. When a sovereign declares states of emergency, imposes martial law, is guided by secret laws, or creates ad hoc military courts, the rule of law is both put to the test and put at risk because discretionary power within the executive branch of government can become unconstrained and unaccountable. With respect to current states of emergency, disagreements center on the question of whether legal or political modes of constraint and accountability are preferable and effective.
The International Dimension Of The Rule Of Law
The rule of law has participated in globalization historically through colonialism and currently in a variety of international development and human rights initiatives. Historically, the rule of law cannot be disentangled from the colonial project engaged in by Western powers, though these powers did not adhere to even the thinnest conception of the rule of law, as lawyers and judges often served colonial rule by giving lip service to the ideal and validated law as an instrument of subjugation. Though the rule of law did bring some benefits to colonized countries, it was nevertheless part of imposed rule by rich nations on poor nations and on indigenous peoples. On the other hand, lawyers like Mohandas Gandhi played key roles in resistance movements against colonialism, often in the very name of the rule of law.
In current forms of globalization, two versions of the rule of law circulate. The first is a market view advanced by multilateral lenders like International Monetary Fund (IMF) and development banks like the World Bank that embraced neoliberalism in the 1990s.This conception of the rule of law rests on the belief that a reciprocal relationship exists between a framework of effective and predictable legal rules and rights and well-functioning markets. Market-based approaches prioritize the protection of property rights, freedom and enforcement of contracts, and low levels of regulation as key components of the rule of law. Practical measures have focused on legal reform (e.g., bankruptcy laws), anticorruption measures, and judicial training. Critics of the market-based view suggest that this understanding of the rule of law mistakenly privileges a minimal state in developed and developing countries and does not place effective constraints on the power of government and market actors. In response to internal and external critiques, the literature has recently turned to new institutionalism to supplement the earlier focus on the rule of law as a specific set of legal practices that can be unproblematic ally uprooted from their Western context and transplanted into new environments.
A second approach also imbues the rule of law with substantive content. The human rights view, often advanced by nongovernmental organizations (NGOs) and a variety of social movements, not only requires legal restraints on state action—including prohibitions against torture and extrajudicial killings—but often also demands a set of positive rights such as rights to democratic government and participation, the regulation of harmful conduct in both the public and private spheres, and the alleviation of substantive inequality. The institutional program envisioned here requires a more interventionist state guaranteeing comprehensive social and economic rights and restructuring social relations in order to further political equality. In contrast to the market-based approach that concentrates on private law relations, the human rights conception focuses on public law relations and the role of the state. Critics suggest that these approaches underestimate the costs and trade-offs necessary for the implementation of social and economic rights and pay insufficient attention to the beneficial role of the market. Lastly, a too substantive version of the rule of law may downplay its role in the mediation of social relations in a complex, pluralistic society.
The Rule Of Law As A Complex, Qualified Good
English Marxist historian E. P. Thompson famously defended the rule of law as “a cultural achievement of universal significance” because it could place effective curbs on power and also regulate and reconcile societal conflicts, sometimes in favor of the less advantaged (1975: 265). He more controversially celebrated the rule of law as an “unqualified human good.” (267). Nevertheless, and as Joseph Raz (1979) cautions, it is perhaps better to conceive of the rule of law as a qualified human good, but a good nonetheless since government by the rule of law is preferable to one based on rule by law. The rule of law is distinguishable from a variety of other highly valued goods including democracy, human rights, dignity, liberalism, and substantive equality. Yet democracy, human rights, and constitutionalism cannot exist without the rule of law and are intricately related to the concept. A political community committed to the rule of law will therefore go some distance towards realizing equality, liberty, and fundamental respect for all persons. The rule of law has great worth as an ideal, but it is also a pivotal means to realizing other important ends.
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