Searching for the Rule of Law

Abstract

Fundamental principles or ideals often seem to acquire a certain fuzziness as they gain importance and notoriety, in part because they are used so frequently and take on the assumption that everybody knows what they mean. But the lack of a settled meaning or understanding of the rule of law - even as we export it and demand it of others, and as it plays an increasingly central role in our legal system, politics and culture - is still surprising. The range of characteristics or criteria commonly attributed to the rule of law is staggering, here amounting to 14 that can be placed in several categories (with parenthetical examples): the basic requirements of a legal system (a fair process, accessibility, universal applicability); certain substantive laws or rules (contract and business rules, human rights); law- and decision-making by certain processes and structures (democracy, separation of powers, judicial review); justice (often offered without specifics); and limitations on government. Increasingly, the rule of law is used to describe what looks like a political or social system, sometimes emerging as the latest of the grand systems. The rule of law becomes the central principle and system by a law-centric flipping or turning of things upside down: democracy is valued as a requirement of the rule of law, rather than democracy being a central principle or system, achievement of which is aided by a reliable legal system. "The rule of law prevailed" has become our highest form of legitimacy or praise, as if the rule of law establishes or embodies highest level norms, higher than the Constitution. This exaggerates and distorts the legal process and the role of law in society and culture, which is evident in the easy but easily refuted notion that human rights are necessarily protected by rule-of-law legal systems. The muddle surrounding the rule of law masks a crisis of democracy and legitimacy.

Keywords: Rule of Law