Rule of Law

The rule of law refers to a mechanism, a process, an institution, a practice, or a norm that secures a particular type of governance. The relevant type of governance is usually defined in opposition to arbitrariness. Arbitrariness typically characterizes various forms of despotism, absolutism, authoritarianism, and totalitarianism, which are widely thought to be evils that the rule of law is supposed to curb. These include even highly institutionalized forms of rule, where atop the apex of a power structure sits some sovereign entity (a king, a junta, a party committee) that can make decisions unconstrained by law when it deems necessary. Ideas about the rule of law have long been central to political and legal thought since at least as early as when Aristotle distinguished the rule of law from individual law. In the eighteenth century, Montesquieu elaborated a doctrine of the rule of law that contrasted the authority of monarchs with the caprice of despots, which underpinned his notion of an independent judiciary (rightly or wrongly with regard to England) and has since profoundly influenced Western liberal thought.

In all, 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 one in particular 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 without taking into consideration the class, status, or relative possession of power among disputants. In order for these ideas to have any real purchase, moreover, there should be some legal apparatuses in place for challenging 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, but 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 can be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable, comprised of determinate requirements that people can consult before acting and not retrospectively establish legal obligations. Furthermore, the law should remain internally consistent and, failing that, should provide for legal ways to resolve contradictions that can be expected to arise.

However, despite these basic features, the rule of law has not always had a particularly established or even systematic formulation (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 is a matter of interpretation that is especially true over time and across different polities. One reason why its meaning continues to be widely contested is that any of the strictly legal or philosophical aspects of the [Page 845]concept points beyond itself also to political and social conditions that are historically and culturally contingent. Another reason for the inherent complexity of the idea is that for whatever empirical particulars are said to fall within the purview of the concept, there is always some larger normative vision about the nature or purpose of law and the legitimate aims and limits of political power that support it, which stand to enjoy even less agreement.

...