Legal Theory Lexicon 017: The Rule of Law

Introduction

This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.

What is the Rule of Law?

The ideal of the rule of law can be traced back at least as far as Aristotle and is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even some readical critics acknowledge that observance of the ideal could curb abuses of the powerless by the powerful.

What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.

Dicey's Influential Formulation

Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power;
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

Rawls on the Rule of Law

A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:

1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.

a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.

2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.

a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.

3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.

4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.
5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.

a. A legal system ought to make provision for orderly and public trials and hearings.
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.
c. A legal system ought to provide a process reasonably designed to ascertain the truth.
d. Judges should be independent and impartial, and no person should judge her own case.

Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:

6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

a. Government officials should not be above the law.
b. The legality of government action should be subject to test by independent courts of law.

More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.

The Values Served by the Rule of Law

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulwark against tyranny, chaos, and injustice.

The Rule of Law and Bad Law

One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.

Conclusion

Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when it's introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Related Lexicon Entries

• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Albert Dicey, The Law of the Constitution 194 (London: MacMillan, 9th ed., 1950)
• Richard H. Fallon, Jr., The Rule of Law" as a Concept in Constitutional Discourse, 97 Columbia Law Review 1-56 (1997)
• Joseph Raz, The Rule of Law and its Virtue, 93 LQR 195-202 ((1997) & reprinted in The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979)
• Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.
• Lawrence B. Solum, Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)
• Tamanaha, Brian. On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).
• Jeremy Waldron (2002), Is the Rule of Law an Essentially Contested Concept (in Florida)?, Law & Philosophy, vol. 21/2, 2002.

(Last revised on April 23, 2023.)