define rule of law essay

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Institutions and legal culture

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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 and Why It Matters

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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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The Rule of Law: Its Origins and Meanings (A Short Guide for Practitioners)

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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.

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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

Copyright © 2016 by Jeremy Waldron < jeremy . waldron @ nyu . edu >

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What is the Rule of Law?

• by Lawprof Team

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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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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Essay: 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.

Related Content

Rule of Law

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.

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11 The Rule of Law and its Virtue

• Published: August 1979
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This chapter examines the argument that there are certain procedural values inseparable from the law which forms its internal morality. It analyses the ideal of the rule of law in the same manner in which F.A. Hayek formulated his ideal of the rule of law and aims to show why some of his conclusions cannot be supported. The chapter begins with the basic idea of the rule of law wherein the doctrine of the rule of law explains that the law must be capable of guiding the behaviour of its subjects. It also discusses some the principles that can be derived from the basic idea of the rule of law. These principles include: all laws should be prospective, open, and clear; laws should be stable; the making of laws should be guided, open, clear, and general rules; the independence of the judiciary must be guaranteed; natural justice must be observed; courts must have reviewing power over some principles; courts should be accessible; and the discretion of crime-preventing agencies should not be allowed to pervert the law. In addition, the chapter discusses the value and essence of the rule of the law and some of the problems and issues concerning conformity to it.

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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.

The WJP is an independent, multidisciplinary organization working to advance the rule of law worldwide.

We engage advocates from across the globe and from multiple work disciplines to advance the rule of law.

• What is the Rule of Law?

Our Definition

The idea of rule of law, traceable to ancient scholars, resonates in most major legal traditions. WJP’s definition of rule of law is built around four universal principles, developed in accordance with internationally accepted standards and norms, in consultation with a wide variety of experts worldwide.

rule · of · law

The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.

• Accountability The government as well as private actors are accountable under the law.
• Just Law The law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.
• Open Government The processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient.
• Accessible and Impartial Justice Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

estado · de · derecho

El Estado de Derecho es un sistema de leyes, instituciones, normas y compromiso comunitario, en el cual se cumplen cuatro principios universales: rendición de cuentas, leyes justas, gobierno abierto y justicia accesible e imparcial.

• Rendición de cuentas Tanto el gobierno como los agentes privados rinden cuentas ante la ley.
• Leyes justas La ley es clara, publicitada y estable, y se aplica de manera uniforme. Garantiza los derechos humanos, así como los derechos de propiedad, contractuales y procesales.
• Gobierno Abierto Los procesos mediante los cuales la ley se adopta, administra, juzga y se hace cumplir son accesibles, justos y eficientes.
• Justicia accesible e imparcial La justicia se imparte oportunamente por representantes independientes y neutrales, los cuales son accesibles, tienen recursos adecuados y reflejan la composición de las comunidades a las que sirven.

état · de · droit

L’État de droit est un système pérenne de lois, d'institutions, de normes et d'engagement communautaire qui respecte quatre principes universels: la responsabilité, une loi juste, un gouvernement ouvert et une justice accessible et impartiale.

• Responsabilité Le gouvernement ainsi que les acteurs privés sont responsables devant la loi.
• Loi Juste La loi est claire, médiatisée, stable et appliquée uniformément. Elle garantit les droits de l'homme ainsi que les droits de propriété, contractuels et procéduraux.
• Gouvernement Ouvert Les processus par lesquels la loi est adoptée, administrée, jugée et appliquée sont accessibles, équitables et efficaces.
• Justice Accessible et Impartiale La justice est rendue dans les délais par des représentants et des neutres compétents, éthiques et indépendants qui sont accessibles, disposent de ressources adéquates et reflètent la composition des communautés qu'ils desservent.

سيادة القانون

منظومة متكاملة ومستدامة تتكون من القوانين، والمؤسسات، والقيم، والالتزام المجتمعي، تهدف إلى تحقيق أربعة مبادئ أساسية؛ وهي المساءلة، والقانون العادل، والحكومة المفتوحة، والعدالة النزيهة المحايدة.

• المساءلة تعني خضوع الجميع للمساءلة بموجب القانون؛ متضمنة الحكومة والجهات المستقلة والفاعلة.
• القانون العادل يعني أن القوانين يجب أن تكون معلنة، وواضحة، ومنصفة، وثابتة، وأن تُطبق بالتساوي على الجميع دون تحيز؛ بما يكفل حقوق الإنسان، وحقوق الملكية، والعقود، وكذا الحقوق الإجرائية.
• الحكومة المفتوحة هي الإجراءات التي من خلالها تُبنى القوانين وتدار وتنفذ، ويفصل فيها، ويجب أن تكون شفافة، ومتاحة، وعادلة، وفعالة.
• العدالة النزيهة والمحايدة تتحقق العدالة في الوقت المناسب من قبل ممثلين ووسطاء وأخلاقيين مختصين ومستقلين، يتمتعون بالحيادية للقيام بمهامهم، ولديهم الموارد الكافية لتقديم العدالة بشكل فعال، ويعكسون تركيبة المجتمعات التي يخدمونها.

法治是一个由法律、机构、规范和社区承诺构成的持久体系，它体现了四项普遍原则：责任制、公正的法律、开放的政府，以及易于获得的公正司法。

• 责任制 政府和私人行为方均须依法承担责任。
• 公正的法律 法律明确、公开、稳定且公平适用，确保人权以及财产权、合同权利和程序性权利。
• 开放的政府 法律的立法、治理、裁决和执行的过程是易于理解、公平及高效的。
• 易于获得的公正司法 由有能力、有道德的独立代表和中立方及时实现司法公正，他们平易近人，拥有充足的资源，并体现了其所服务社区的构成。

Understanding the universal principles

The four universal principles are building blocks for any rule of law system. To demonstrate the impact of each principle in practice, we have developed a set of illustrative questions–by no means comprehensive–for you to explore. 

Accountability

Accountability Illustrative questions encompassed in this principle

• Are politicians and government officials held accountable for corruption?
• Do people face legal consequences for wrongdoing regardless of their wealth or status?
• Are there mechanisms in place to prevent abuses of power?
• Do checks on the government’s power, such as a free and independent press, exist?
• Is transition of power subject to the law?

Just Law Illustrative questions encompassed in this principle

• Is the law understandable to all people?
• Is the law publicly available and easily accessible?
• Is the law stable and steady?
• Does the law apply equally to people of all backgrounds and social class?
• Are core human, procedural, and property rights enshrined in the law?

Open Government

Open Government Illustrative questions encompassed in this principle

• Is it easy to find out how the government manages public resources and to request information from the government?
• Can citizens collaborate with government officials to improve the rule of law?
• Can people bring complaints to the government without facing repercussions?
• Does the government respond to queries about its actions in a timely manner with useful information?
• Are freedoms of opinion, expression, assembly, and association respected?

Accessible and Impartial Justice

Accessible and Impartial Justice Illustrative questions encompassed in this principle

• Is dispute resolution accessible and affordable?
• Can people resolve their disputes in a timely manner?
• Is the justice system free of corruption and improper influence?
• Do the police, lawyers, and judges have adequate resources to administer justice?
• Are the police, lawyers, and judges neutral and independent?

Benefits of effective rule of law

No matter who we are or where we live, the rule of law affects us all. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights. Research shows that rule of law correlates to higher economic growth, greater peace, more education, and improved health outcomes.

• Economy Where rule of law is stronger, so is the economy.
• Peace More peaceful countries enjoy greater rule of law.
• Education People are more educated where rule of law prevails.
• Life Expectancy People live longer in countries with higher rule of law scores.

Over 6 billion people live in a country where rule of law is declining.

How does your country score? Explore the Rule of Law Index

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rule of law - essay I

Intimately linked with ‘judicial independence’ (indeed Lord Bingham in Belmarsh (A [2004]) described independent judges as the “cornerstone of the rule of law itself”) the ‘rule of law’ has a labyrinthine history, extensively explored in Hayek’s Constitution of Liberty, where many conventional notions are challenged and a multitude of sources established. With control of executive excesses at its very core, modern day questions centre on what is the correct balance in any society between policy (largely executive driven) and law (in its formal sense as Raz establishes - Rule of Law and its Virtues). Here we are asked to question whether the doctrine (as it is currently understood) has adequate ‘certainty’ to be a ‘guiding principle’ in UK Public Law.

Related Papers

This essay aims to explore the definition of what is meant by the term the ‘rule of law’. This will be achieved from looking at the three principles governing A.V. Dicey’s thoughts on the rule of law to how the rule of law as a concept stands today in modern thought. Also similarities between both Lord Bingham eight guides, and Joseph Raz’s eight postulates. We will briefly explore the contemporary complexity of executive discretion that may have escaped Dicey’s thinking as well as how British civil liberties has been codified and impacted by the Human Rights Act of 1998, and the fallout from joining the European Convention in 1972.

Junaid Abbasi

Joey Stanford

The rule of law ‘remains contested across time and geography’ , so much so that it is, in some circles, held nothing more than ‘a bit of ruling class chatter’ or a ‘hurrah word’ . Nevertheless, in the British courts, it remains an invaluable legal tool with which to rectify the improprieties of the other constitutional foundation: the doctrine of parliamentary sovereignty. Despite the contested nature of the rule of law, it is obvious that the courts recognise a multifaceted version of the principle. There is further plausibility in asserting that they succeed in upholding this principle. However, on closer inspection and as this paper shall argue, the more compelling arguments are those which hold that, when success occurs, it is ultimately of little value; the courts are ultimately in service of Parliament and not the rule of law.

Complete Public Law

Lisa Webley

Jacob Meagher

An exposition on a new regulatory theory; Common law courts as regulators – the judiciary as a regulatory mechanism. In this paper the author ascribes to the judiciary/courts specific regulatory powers with regards to fundamental rights, the Bill of Rights and upholding and adjudicating constitutional norms. Via judicial regulation, courts can exercise power outside of the lis in disputes of distinction.

Richard S Kay

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise much of our study of jurisprudence. In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.

Martine Valois

Journal of Comparative Law

Jacob Meagher FRSA TEP

This article suggests that courts regulate constitutional rights. As such, some may attribute to its author little in the way of revolutionary legal scholarship. “Do Courts regulate?” appears to the uninitiated to be a rhetorical question because when courts make decisions, and decisions are regulations, then courts must be regulators. The syllogistic answer to the above question is superficially yes: courts are regulators and “so what”?However, therein lies an overlooked consideration: although courts do regulate, what is meant by regulation in the judicial context and where does that power originate? What exactly do courts regulate? Is this a legitimate exercise, or a mislabeling of judicial activism?

Kate Malleson

Philippe Kuhn

Discretion continues to hold a prominent place in the British administrative state, but general rules and principles in the form of ‘soft law’ increasingly serve to constrain that discretion. This seems to reflect the growing consensus that an element of discretion is often necessary and even desirable for reasons including the need for flexibility and the relative institutional competence of administrators. The recent decisions of the House of Lords in Purdy and the UK Supreme Court in Lumba represent an increasingly pronounced trend of making the exercise of discretionary powers subject to soft law. Doubts about the Purdy/Lumba trend as a matter of authority have been laid to rest by the UK Supreme Court’s subsequent ruling in Kambadzi. The Law Lords in Purdy held that the prosecutorial Code had to be supplemented by further guidelines specific to the offence of assisted suicide to guide the execise of prosecutorial discretion, whilst, in Lumba, their Lordships required adherence to a published policy in respect of deportation of foreign national prisoners. Viewing discretion as a linear concept as KC Davis did, the desirability of soft law further confining the ambit of discretion is open to challenge, provided one is persuaded of the benefits of discretion. It is argued that a degree of discretionary power is indeed vital in most administrative contexts, but that insofar as soft law acts as a bridge between law and policy, without becoming as rigid as prescriptive legislative provisions, the Purdy/Lumba trend is positive. Consequently, it may be said that the UK courts have struck a reasonable compromise between the competing demands of rule-based government and flexible decision-making that accords with basic notions of doing justice in specific cases.

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The Rule of Law as a Well-Established and Well-Defined Principle of EU Law

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• Published: 28 June 2022
• Volume 14 , pages 107–138, ( 2022 )

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Against increasing rule of law backsliding within the EU, the European Commission has presented the rule of law as a well-established and well-defined principle whose core meaning is furthermore shared as a common value among all Member States. In refute, the national governments of the two EU countries, which are both subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused, have claimed that the rule of law is neither defined in EU law, nor could it be defined in EU law. This article’s primary aim is to assess these conflicting assertions. It does so by first offering an overview of the EU legal framework on the basis of which it is shown that the rule of law, as asserted by the Commission, is a well-established constitutional principle of EU law. It furthermore shows that it is well-defined, not least because of the Court of Justice’s extensive case law, the European Commission’s definitional codification of it and most recently, the adoption of the Rule of Law Conditionality Regulation 2020/2092 which provides the first comprehensive allen compassing internal-oriented definition of the rule of law adopted by the EU co-legislators. This article furthermore contends that the EU’s understanding of the rule of law reflects what may be presented as a broad consensus in the European legal space on its core meaning and components; its legal use as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived; and how the rule of law relates to other fundamental values. Finally, this article concludes by examining the reality of a potentially emerging East-West dissensus as regards the rule of law. In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to systemically undermine it, it is however submitted that there is no meaningful East-West divide but an authoritarian-liberal divide at elite level.

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1 Introduction

In a context of increasing rule of law backsliding within the EU itself, Footnote 1 the European Commission presented the rule of law in 2019 as ‘a well-established principle’, ‘well-defined in its core meaning’ which is furthermore ‘the same in all Member States.’ Footnote 2 This article’s primary aim is to assess the extent to which the European Commission is correct in asserting that the rule of law is a well-established and well-defined principle of EU law whose core legal meaning is shared across the EU.

A focus on the (legal) meaning and scope of the EU rule of law may appear to some as a rather academic exercise at best, and possibly futile exercise at worst. Indeed, the rule of law is regularly referred to as an ‘essentially contested concept’, a point first made by W.B. Gallie in 1956. Footnote 3 Addressing this conceptual relativism is however more crucial than ever considering the increasingly open conceptual challenge originating from authorities subject to special EU procedures on account of the systemic threat to  the rule of law their repeated actions have caused. Footnote 4 As examples of this ‘illiberal’ conceptual criticism, one may quote Poland’s former Minister of Foreign Affairs who promised ‘a horse and saddle or box of Belgian chocolates for anyone who finds the definition of ‘the rule of law’ in the Treaty or any other legally binding EU document’. Footnote 5 One may also refer to Hungary’s Minister of Justice who has presented the rule of law as a buzzword’ allegedly lacking ‘well-defined rules’ and which would remain ‘the subject of much debate’. Footnote 6 This conceptual challenge culminated in a legal challenge seeking the annulment of the EU’s Rule of Law Conditionality Regulation of 16 December 2020 Footnote 7 on the ground inter alia that the rule of law would neither be defined in EU law, nor could it be defined in EU law. Footnote 8 It would follow that there is no such a thing as a binding and enforceable principle of the rule of law in EU law.

To address these claims, Sect.  2 of this article will examine the EU legal framework to show that the rule of law is on the contrary a well-established constitutional principle of EU law which is furthermore well-defined not least because of the Court of Justice’s extensive case law and the European Commission’s definitional codification efforts in the past decade. Section  3 will then address the consensual nature of the EU’s legal understanding of the rule of law most recently codified in Regulation 2020/2092. This article will defend the view that this understanding reflects what may be presented as a broad consensus in the European legal space on the core meaning and components of the rule of law; the legal use of the rule of law as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived; and lastly, how the rule of law relates to other fundamental values such as democracy and respect for human rights. In light of growing conceptual or otherwise challenges originating from officials of EU countries facing unprecedented autocratisation, Footnote 9 Sect.  4 will examine the reality of a potentially emerging dissensus as regards the rule of law considering that sustained attacks on the rule of law both of a rhetorical and practical nature are particularly noticeable in Central and Eastern European countries. Footnote 10 In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to undermine the rule of law, it will be argued that there is no meaningful East–West divide but an authoritarian-liberal divide at elite level.

2 The Rule of Law in the EU Legal Framework

Not only have the Polish and Hungarian governments argued before the Court of Justice that the rule of law is allegedly not defined in the EU Treaties, they have also claimed that the EU has no competence to define it. However, as will be shown below, while the Treaties do not indeed include a provision offering a single, comprehensive or exhaustive definition, this is in fact the norm from a comparative law point of view. Furthermore, the Treaties do include several provisions guaranteeing the core components of the rule of law, with these core components having been in addition the subject of extensive case-law and multiple references in EU secondary legislation culminating in the adoption of a codifying definition by the EU’s legislature in Regulation 2020/2092. And as the Court of Justice powerfully held in its twin judgments in relation to this Regulation, not only do the Treaties empower the EU institutions to define the rule of law, the EU must be able to defend it.

2.1 The Rule of Law in EU Primary and Secondary Law

With respect to EU primary law, one may first observe the absence of any reference to the rule of law or its core meaning in the original founding treaties, with one exception: the provisions describing the jurisdiction of the European Court of Justice, originally written in French, which arguably already encapsulated the core legal meaning of the rule of law, i.e., ‘the reviewability of decisions of public authorities by independent courts.’ Footnote 11

Following the first significant reference in the case law of the Court of Justice to the rule of law in the 1986 Les Verts judgment, Footnote 12 wherein the Court first referred to the then EEC as a community based on the rule of law, EU primary law has seen an increasing number of Treaty provisions referring explicitly and implicitly (via references to the ‘values’ of the EU) to the rule of law. In the continuing absence of a single and comprehensive Treaty definition, one may also note the introduction of Treaty provisions of EU primary law requiring compliance with the core components of the rule of law such as effective legal protection or the right to an effective remedy.

The table below contrasts the situation in 1957 at the time of the signature of the EEC Treaty and the situation when the Lisbon Treaty was signed fifty years later in 2007 to demonstrate the ‘widening’ (in the sense of the increasing number of references in multiple areas) and ‘deepening’ (in the sense of the adoption of new mechanisms and explicit guaranteeing of core components) of the EU primary law framework in respect of the rule of law which, one may note, tends to be systematically referred to alongside democracy and respect for human rights:

In addition to the Treaty provisions listed above, increasing awareness of the threat posed by rule of law backsliding at EU Member State level has resulted in a rapid evolution of the EU’s rule of law ‘toolbox’with the aim of addressing threats to the EU values. Footnote 13 Some of the instruments developed thus far are closely connected to some of the provisions of EU primary law listed above. This trend arguably began with the adoption in 2006 of a specific primary law based mechanism to oversee Bulgaria and Romania and which entered into force on 1 January 2007. Known as the Cooperation and Verification Mechanism, the CVM was set up in order to monitor the countries’ progress in addressing specific benchmarks in inter alia the area of judicial reform. Footnote 14 In this context, the Commission defined the rule of law as a principle requiring ‘the existence of an impartial, independent and effective judicial and administrative system’. Footnote 15 In its first ever judgment on the legal nature of the CVM issued on 18 May 2021 in answer to a set of national references for a preliminary ruling originating from Romanian courts, the Court of Justice confirmed that the CVM falls within the scope of the country’s Treaty of Accession and that the associated benchmarks aim to ensure that Romania complies with the Article 2 TEU value of the rule of law and must be considered binding on Romania. Footnote 16

Instruments of a more general scope were subsequently adopted. One may in particular mention the Rule of Law Framework adopted by the European Commission in 2014 and which has been commonly presented as a pre-Article 7 TEU procedure. The adoption of this instrument is noteworthy conceptually speaking as this was the first time the Commission sensibly attempted to offer a working and comprehensive definition of the notion of the rule of law in an internal context. Footnote 17 Building primarily on the findings of a study previously adopted by the Venice Commission, the European Commission’s Communication reflects the view according to which there is a consensus on the core (legal) meaning of the rule of law and that this concept essentially entails compliance with the following six legal principles: (1) legality; (2) legal certainty; (3) prohibition of arbitrariness of the executive powers; (4) independent and impartial courts; (5) effective judicial review including respect for fundamental rights and (6) equality before the law. While the European Commission did accept that the precise content of rule of law related principles and standards ‘may vary at national level, depending on each Member State’s constitutional system’, Footnote 18 it also suggested, rightly in our view, that the six elements previously listed stem from the constitutional traditions common to most European legal systems and may be said to define the core meaning of the rule of law within the context of the EU legal order. Two additional important points were then also made by the European Commission: the rule of law must be understood as a ‘constitutional principle with both formal and substantive components’ which ‘is intrinsically linked to respect for democracy and for fundamental rights.’ Footnote 19

In addition to the Commission’s 2014 Rule of Law Framework, one should also highlight the Commission’s Annual Rule of Law Report, Footnote 20 first launched in 2020, which was also justified in the name of inter alia guaranteeing better compliance with the EU Treaties and in particular Article 2 TEU. Footnote 21 One of the positive features of this recent addition to the EU’s rule of law toolbox is that it closely builds on the Commission’s 2014 definitional efforts and offers a compelling definition of the core elements of the rule of law by codifying the key legal principles laid down in the EU Treaties, EU secondary legislation, the case-law of the Court of Justice as well as the case law of the European Court of Human Rights. As a final example of soft law instruments implementing EU primary law provisions, one may mention the so-called European Semester which has increasingly become more intensely occupied with issues relating to national judiciaries and judicial independence, is closely linked to Title VIII of the TFEU (economic and monetary policy) and the secondary legislation adopted on this basis.

Speaking of EU secondary legislation, one must stress that the great majority of EU legislative instruments referring to the rule of law have been instruments dedicated to the external promotion of the EU’s foundational values as required inter alia by Article 21 TEU which provides that the EU’s action on the international scene shall be guided inter alia by the rule of law. One may give the example of Regulation 2021/947 establishing the Neighbourhood, Development and International Cooperation Instrument—Global Europe which refers to the rule of law no less than 35 times. Footnote 22 Regulation 2021/947 does not however provide any comprehensive definition, nor any detailed description of how the rule of law is understood although some key aspects relating to it are mentioned such as independent judiciary and affordable access to justice for all. This lack of a comprehensive definition or detailed description is far from unusual.

This is not to say that the EU has sought to ‘export’ a vague or incoherent ideal. Rather, the EU has primarily sought to promote compliance with a number of sub-components of the rule of law selected on the basis of specific aims and priorities to be pursued in different external contexts. Furthermore, when examined transversally, externally oriented EU legal instruments may be said to illustrate an understanding of the rule of law which requires ‘compliance with a number of core principles in order to guarantee inter alia that governments are subject to the law.’ Footnote 23 A study focusing on the Commission’s policy documents, decisions, and annual assessments of EU candidate countries from 1997 to 2004 similarly demonstrated that ‘while the Commission’s work was far from flawless, it articulated a clear vision on the core meaning of the political accession criteria before Poland, Hungary, and the other countries from Central and Eastern Europe acceded’. Footnote 24 In this context, the Commission has always defended the view that the core meaning of the rule of law means first and foremost ‘that the powers of the government and its officials and agents are circumscribed by law and exercised in accordance with law’. Footnote 25 Additional core elements such as the need for an independent and impartial judiciary have also been consistently mentioned. One may therefore conclude that ‘the Commission’s conceptualisation of the rule of law’ since the TEU has always gone ‘beyond a minimalist understanding of the rule of law’ with democracy, rule of law, and human rights systematically understood as a set of interrelated foundational principles. Footnote 26

Internally oriented but considerably fewer EU legislative instruments also refer to the rule of law. A similar lack of definitional interest characterise them. This fundamentally changed with Regulation 2020/2092 which provides the first comprehensive all-encompassing definition of the rule of law adopted by the EU legislator while also further reiterating an approach first made clear in the context of EU external relations law as outlined above: the rule of law is to be understood as intrinsically linked with democracy and respect for human rights. Footnote 27

At the very least, the above developments show that those arguing like the current Polish government that ‘the organisation of the national justice system constitutes a competence reserved exclusively to the Member States’ Footnote 28 have failed to take stock of the multiple EU provisions and associated instruments which have made clear over and over again that EU membership implies—to borrow from the previously mentioned EU Commission decisions establishing a CVM in respect of Bulgaria and Romania—‘the existence of an impartial, independent and effective judicial and administrative system’. Since then, the European Court of Justice has furthermore made explicitly clear what was previously implicitly accepted as obvious following the first set of infringement actions launched by the Commission on the basis of the second subparagraph of Article 19(1) TEU in respect of Poland’s rule of law crisis: while ‘the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law […] by requiring the Member States thus to comply with those obligations, the European Union is not in any way claiming to exercise that competence itself nor is it, therefore […] arrogating that competence.’ Footnote 29

As will be further detailed below, the conflict-prone adoption of Regulation 2020/2092 has similarly provided the Court of Justice with an unprecedented opportunity to address fundamental conceptual issues in relation to the EU rule of law following the annulment actions brought against the EU’s Rule of Law Conditionality Regulation by the Polish and Hungarian governments.

2.2 The Rule of Law in the Court of Justice’s Case Law

Ever since its ruling in the 1986 case of Les Verts , in which the Court of Justice primarily equated the rule of law with the ‘traditional and interrelated legal principles of legality, judicial protection and judicial review’ Footnote 30 and which the Court of Justice has also guaranteed as general principles of EU law, Footnote 31 numerous rulings have clarified both the meaning and the extent to which additional principles can also be viewed as core components of the rule of law. This subsequently enabled the European Commission, as previously outlined, to define the rule of law as a set of core legal principles with reference inter alia to the Court of Justice’s case law whose recent exponential growth must be emphasised. Indeed, starting with the so-called ‘Portuguese judges’ judgment of 27 February 2018, Footnote 32 the Court has issued multiple rulings which directly or indirectly address national measures undermining judicial independence. Footnote 33 In this context, the Court has developed what has been labelled an ‘existential jurisprudence’ Footnote 34 so as to defend the fundamental and foundational values underlying the EU legal order against rule of law backsliding.

A silver lining of the EU’s rule of law crisis is arguably the numerous opportunities it has given the Court of Justice to develop this extremely comprehensive body of case law. Similarly, one may possibly be grateful for the conceptual challenge originating from national authorities engaged in backsliding strategies as these have led the EU’s main political institutions to engage more forcefully than ever before with definitional issues culminating in the inclusion of a detailed and enforceable definition of the rule of law in Regulation 2020/2092. Most recently, by challenging the legality of Regulation 2020/2092 and arguing that the rule of law ‘cannot be the subject of a uniform definition in EU law and must be specifically defined by the legal systems of each Member State’ (Hungarian government) and that a budgetary-related EU regulation cannot, in any event, ‘define the concept of the rule of law’ (Polish government), Footnote 35 these two ‘authoritarian governments’ Footnote 36 have provided a unique opportunity to the Court of Justice to enter the conceptual fray.

In reply to these claims—which manifestly ignored the EU’s legal framework, the multiple references if not definitions one can find in EU legislative and non-legislative instruments and the Court of Justice’s well established case-law—EU Advocate General Campos Sánchez-Bordona helpfully recalled that:

272. Although the concept of the rule of law as a value of the European Union enshrined in Article 2 TEU is broad, there is nothing to prevent the EU legislature from defining it more precisely in a specific area of application, such as implementation of the budget, for the purposes of establishing a financial conditionality mechanism. 273. The concept of the rule of law has an autonomous meaning within the EU legal system. It cannot be left to the national law of the Member States to determine its parameters, because of the risk this would pose to its uniform application […] 274. As I noted earlier, the Court’s case-law has helped to develop the value of the rule of law as regards its implications for effective judicial protection or the independence of the judiciary. That case-law can provide the EU legislature with guidelines to help in defining that value in secondary legislation. That is what has happened with Regulation 2020/2092. Footnote 37

Accordingly, for the Advocate General, the Hungarian and Polish’s claims alleging inter alia a violation of legal certainty must be rejected. Indeed, the EU’s co-legislators merely developed the value of the rule of law by specifying the core legal principles this value embodies and which are all based on the Court of Justice’s own case law in addition to being also guaranteed by the European Court of Human Rights. As regards the indicative list of areas where breaches of the principles of the rule of law may arise and the examples provided by the EU legislature in Regulation 2020/2092, they show that the EU legislature is actually endeavouring to increase legal certainty.

The Court of Justice, exceptionally sitting as a full court, confirmed the validity of the Advocate General’s approach. Footnote 38 As stressed by the Court, while Article 2 of Regulation 2020/2092 does not set out in detail the principles of the rule of law that it mentions, these principles have not only ‘been the subject of extensive case-law’, they have ‘their source in common values which are also recognised and applied by the Member States in their own legal systems’. Footnote 39 This means that no Member State can (seriously) claim not to be ‘in a position to determine with sufficient precision’ the core content and the legal requirements flowing from each of rule of law principles listed in the Regulation. Footnote 40

For the Court, the EU legislator is furthermore entitled to adopt a specific definition of the rule of law on account of the specific aims and subject matter of the relevant piece of legislation. In this context, the Court has emphatically and powerfully reiterated that Article 2 TEU ‘is not merely a statement of policy guidelines or intentions, but contains values’ which ‘are an integral part of the very identity of the European Union as a common legal order’ and ‘are given concrete expression in principles containing legally binding obligations for the Member States’. Footnote 41 The claim that the EU rule of law principles are ‘of a purely political nature and that an assessment of whether they have been respected cannot be the subject of a strictly legal analysis’ Footnote 42 must therefore be rejected.

Finally, in response to the (evidence-free) claim that the EU definition of the rule of law would allegedly not be compatible with the Hungarian and Polish national identity, the Court of Justice helpfully recalled the obvious: while national authorities have ‘a certain degree of discretion’ Footnote 43 when it comes to implementing rule of law principles in light of the specific features of each national legal system, this cannot be construed as carte blanche not to respect EU rule of law principles or backsliding post accession, and a serious argument to deny the EU the power to impose uniform assessment criteria as it did under Regulation 2020/2092. Indeed, while Member States ‘have separate national identities, inherent in their fundamental structures, political and constitutional, which the European Union respects, the Member States adhere to a concept of ‘the rule of law’ which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times.’ Footnote 44 Looking beyond the rule of law, the Court of Justice could not have been clearer: Compliance with the values contained in Article 2 TEU ‘cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession.’ Footnote 45

The Court’s twin judgments are as detailed as they are compelling. If one were to identify a possible shortcoming, the Court’s reliance on the concept of (constitutional) identity may be viewed as unnecessary and possibly unwise. Rather than presenting Article 2 values as defining ‘the very identity’ Footnote 46 of the EU, the Court could have merely outlined that ‘compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State’ and that the rule of law ‘forms part of the very foundations of the European Union and its legal order’. Footnote 47 This would have sufficed to justify the Court’s fundamental point that the EU ‘must be able to defend’ the values on which it is based within the limits of its powers as laid down by the Treaties. Footnote 48 There was arguably no imperative need for the Court to rely on the concept of constitutional/national identity which, while mentioned in the Treaties in relation to both the EU and its Member States and increasingly used by constitutional courts (independent or otherwise), is arguably excessively subjective while also being easily open to misuse and abuse by those implementing rule of law backsliding agendas. Footnote 49 Having however decided to make use of the concept – for better or worse – one may only but welcome the Court’s clarification that ‘the EU protects national constitutional identities’ but ‘does not protect national unconstitutional identities’ when they turn ‘into a violation of the constitutional identity of the EU’. Footnote 50

2.3 Definitional Consolidation

In light of the multiple and more rarely, detailed references to the rule of law one could find in EU primary and secondary law instruments as well as in EU policy documents prior to the adoption of Regulation 2020/2092, one could argue that the main issue has never been the lack of a definition but rather the multiplication of references and adoption of documents emphasising different components of the rule of law. Footnote 51 This could give the wrong impression of an à la carte understanding while simultaneously making it difficult to rapidly understand what the rule of law means. To address this criticism, as detailed above, the European Commission helpfully sought to comprehensively clarify the core meaning and purpose of the EU rule of law starting in 2014 when it adopted a pre-Article 7 TEU procedure.

The Commission has since made one addition to the definition offered in 2014 by including the principle of separation of power at the time of the launch of its Annual Rule of Law Report. This addition was neither surprising nor unwarranted. Indeed, the Commission’s 2014 Communication already explicitly referred to the separation of powers when explaining that its pre-Article 7 procedure aims to address threats to the rule of law of a systemic nature, including threats to the separation of powers in any Member State. The subsequent explicit inclusion of the principle of separation of powers in the Commission’s definition seems to have been motivated by the increasing references to this principle in the post 2014 case law of the Court of Justice, Footnote 52 the nature of the attacks on the rule of law the Commission identified in respect of the situation in Poland Footnote 53 as well as the growing importance of separation of powers in the European Court of Human Rights’ case law. Footnote 54 This, in turn, led the European Parliament and the Council to include separation of powers in their definition of the rule of law when they adopted Regulation 2020/2092 which itself refers to three judgments issued by the Court of Justice, one in 2010 and two in 2016. Footnote 55

In light of the above, one may view as misguided the definitional critique levelled at the EU and at the European Commission, in particular in the context of its ongoing (but manifestly belated and insufficient Footnote 56 ) efforts to uphold and defend judicial independence. The mocking criticism expressed by Poland’s former Minister of Foreign Affairs when he promised in December 2019 ‘a horse and saddle or box of Belgian chocolates’ Footnote 57 for anyone able to find a definition of the rule of law in any legally binding EU document, similarly lacks substance. As previously shown, several core components of the rule of law are explicitly mentioned and guaranteed in the EU Treaties. If one understands ‘definition’ as requiring a single, detailed provision exhaustively defining the meaning and scope of the rule of law then one may raise a similar criticism as regards the Polish Constitution. Does this mean the rule of law does not underlie the whole Polish legal system? A negative answer is of course warranted. As made clear by Article 2 of the Polish Constitution: ‘The Republic of Poland shall be a democratic state ruled by law’. In other words, ‘this provision enacts a constitutional principle equivalent to the rule of law or Rechtsstaat’ Footnote 58 on the basis of which Poland’s Constitutional Tribunal (before its unconstitutional capture in December 2016 Footnote 59 ) ‘has derived a number of general principles of law such as legal certainty, protection of acquired rights, protection of legitimate expectations, proportionality, non-retroactivity of law and sufficient vacatio legis .’ Footnote 60

As a matter of fact, a shared legal trait in Europe is that the rule of law is almost never precisely defined by national constitutions. Footnote 61 The usual lack of a constitutional definition (or of a detailed one) of the rule of law has led, in turn, national constitutional/supreme courts to define its specific contours on a case-by-case basis. This lack of definition and the need for a case-by-case ‘discovery’ and application of the key components of the concept is, however, far from unique to the rule of law. As observed by Professor Scheppele and the present author:

many important principles of law have solid cores that can be legally enforced even if there is disagreement about where the boundary is at the margins. The right to ‘free speech’ surely includes the idea that the state may not punish the political opposition for criticising the government even if there is no unanimity about whether hate speech may be legally prohibited. The right to data privacy surely includes the requirement that the state may not as a general matter indiscriminately collect private information even if there is no unanimity about how far this right gives way in the immediate aftermath of a terrorist attack. Most general principles have clear cores and contestable margins, and it is no argument against the existence of the clear core that one can imagine cases at the margins over which one can reasonably argue. Footnote 62

One may conclude that regardless of the national legal system, it has been commonly left to legislators, lawyers, judges and scholars to flesh out the meaning and implications of this principle on a subject-matter by subject-matter basis and/or on a case-by-case basis.

The EU has followed a broadly similar approach with the EU Treaties not offering a single, comprehensive or exhaustive definition of the rule of law. The Treaties do however contain multiple references to different core aspects of the rule of law. One may for instance mention Title IV of EU Charter of Fundamental Rights entitled ‘Justice’ which guarantees rights such as the right to an effective remedy and the right to a fair trial, and the second subparagraph of Article 19(1) TEU which, as the Court of Justice itself explained, ‘gives concrete expression to the value of the rule of law stated in Article 2 TEU’ to the extent that it imposes on Member States a (justiciable) obligation to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Footnote 63

The lack of a Treaty provision offering an all-encompassing definition does not therefore necessarily imply that the rule of law is inevitably vague and cannot be enforced. Many important binding principles of law have solid cores that can be legally enforced even if there is room for disagreement about where their boundaries lie. One may recall for instance that many other fundamental concepts are not defined by the EU Treaties. For instance, there could be no EU internal market without a prohibition on customs duties and yet the concept of customs duties is left undefined by the Treaties. Similarly, the EU Treaties guarantee many rights to EU workers, yet the notion of worker is also not defined in EU primary law. Does this mean that there is no EU binding prohibition on customs duties and no competence for the EU in this area? Of course not. The Masters of the Treaties have deliberately left it to EU institutions, and in particular the Court of Justice, to define and apply multiple key concepts and fundamental principles, which the Court has done and continues to do regularly in respect of the rule of law. It is primarily on the basis of the Court of Justice’s case law that the European Commission was able to offer a comprehensive and compelling working definition of the core components of the rule of law which was subsequently embraced by the EU’s co-legislators when they adopted Regulation 2020/2092. Arguing that the rule of law in the EU legal order is allegedly excessively vague or would lack a legally binding nature because the EU Treaties would lack a detailed definition does not therefore survive close scrutiny. Similarly, as will be shown below, the EU’s understanding is in line with national understandings of the rule of law.

3 A Consensual EU Definition

This section is primarily based on L. Pech and J. Grogan (eds), Meaning and Scope of the EU Rule of Law , RECONNECT Deliverable 7.2, 30 April 2020, https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf .

As asserted by the Venice Commission and the European Commission subsequently, ‘a consensus on the core meaning of the rule of law and the elements contained within it’ Footnote 65 has progressively crystallised as far as the European legal space is concerned. However, consensus should not be confused with uniformity as ‘common approaches, standards and norms do not entail their implementation in an identical manner’ Footnote 66 and neither should they. As recently stressed by the Court of Justice, EU law does not require ‘Member States to adopt a particular constitutional model governing the relationships and interaction between the various branches of the State […] Indeed, under Article 4(2) TEU, the European Union must respect the national identities of the Member States, inherent in their fundamental political and constitutional structures.’ Footnote 67 Conversely, however, the existence of different constitutional traditions in Europe and the persistence of some significant differences between national legal systems primarily when it comes to ‘institutionalising’ the rule of law (for instance, not every EU Member State has deemed it necessary to organise the constitutional review of legislation via a constitutional court), does not necessarily imply the lack of a dominant common core understanding and other shared traits notwithstanding ‘different national identities and legal systems and traditions’. Footnote 68

3.1 The Crystallisation of a Consensual Core Meaning

As the Council of Europe’s Committee of Ministers explained in 2008, ‘adherence of all Council of Europe member states to the ECHR and their being subject to the jurisdiction of the European Court of Human Rights was highly instrumental in creating a common European core of rule of law requirements which is still developing further’. Footnote 69 Membership of the EU has similarly reinforced the crystallisation of  a common European core of rule of law requirements for the EU Member States, all of them also parties to the ECHR. These core rule of law requirements have been codified by both the Venice Commission and the European Commission in the last decade, in part, to answer unprecedented and spreading authoritarian developments within both the EU and Council of Europe. As the table below shows, the core meaning and elements of the rule of law outlined first by the Venice Commission in 2011 and subsequently by the European Commission in 2014 before being embraced by the European Parliament and the Council acting in a legislative capacity in 2020 are virtually identical. This should not come as a surprise since the EU and Council of Europe have long been promoting a similar conception of the rule of law. Footnote 70 And while the principle of separation of powers is not explicitly mentioned by the Venice Commission, the Venice Commission did present judicial independence as being ‘an integral part of the fundamental democratic principle of the separation of powers’. Footnote 71

• a Ibid., para. 41. See also Venice Commission, Rule of Law Checklist, Study No. 711/2013, 18 March 2016, para. 18 et seq
• b European Commission, 2020 Rule of Law Report. The rule of law situation in the European Union, COM(2020) 580 final, p. 1
• c See Recital 3 and Article 2 (Definitions) of Regulation 2020/2092
• d The Venice Commission adopted here the definition proposed by Lord Bingham in The Rule of Law (Allen Lane, 2010)

A number of core elements are arguably missing such as the principle of accessibility of the law, the principle of the protection of legitimate expectations and the principle of proportionality. That said, ‘the principle of legality may however be understood as encompassing the requirement that the law must be accessible and the protection of legitimate expectations is closely linked to the principle of legal certainty. As for the principle of proportionality, its limited use in English administrative law … may have thought to justify its exclusion from what have been presented as consensual lists.’ Footnote 72 One may also wonder whether it makes conceptual sense to distinguish the principles of non-discrimination and equality before the law from the broader notion of fundamental rights. As for the claim that fundamental rights and/or non-discrimination cannot be considered core elements of the rule of law—a submission made by the Hungarian and Polish governments when they challenged the legality of Regulation 2020/2092—the Court of Justice has since held that

the reference to the protection of fundamental rights is made only by way of illustration of the requirements of the principle of effective judicial protection, which is also guaranteed in Article 19 TEU and which Hungary itself acknowledges to be part of that concept. The same is true of the reference to the principle of non-discrimination. Although Article 2 TEU refers separately to the rule of law as a value common to the Member States and to the principle of non-discrimination, it is clear that a Member State whose society is characterised by discrimination cannot be regarded as ensuring respect for the rule of law, within the meaning of that common value. Footnote 73

The minor criticism expressed above aside, the core meaning and elements of the rule of law identified by both the Venice Commission and the main EU political institutions do accurately reflect the core meaning and components one may draw from Europe’s national legal orders. Footnote 74 Indeed, and to put it concisely, the rule of law has progressively become a dominant organisational paradigm of modern constitutional law in all the EU Member States. Even in countries where the rule of law is not explicitly guaranteed in the national constitution, the rule of law is normally recognised by legislators, lawyers, judges and scholars as one of the foundational principles undergirding the relevant national constitutional system. Another shared trait is the dominant legal understanding of the rule of law as a meta-principle which provides the foundation for an independent and effective judiciary and essentially describes and justifies the subjection of public power to formal and substantive legal constraints with a view to guaranteeing the primacy of the individual and its protection against the arbitrary or unlawful use of such public power.

The legal and policy documents produced by the EU and the Council of Europe similarly promote a broad, substantive and holistic understanding of the rule of law. Footnote 75 In other words, the rule of law is generally understood as a principle that includes substantive components (e.g. equality before the law) as well as formal/procedural elements (e.g. legal certainty, judicial review), and which requires a democratic and liberal constitutional order giving full effect to human rights. This also explains why the principle of the rule of law is commonly viewed as not justiciable in itself. This means that the rule of law is not traditionally used as a rule of law. This is not to say, however, that the rule of law, as a legal principle, lacks normative effect and merely fulfils a descriptive function. On the contrary, the highest courts tend to rely on the rule of law both as a ‘transversal’ principle that must guide the interpretation of all legal norms, and a basis from which a set of ‘hard’ legal principles, formal as well as substantive, can be derived to help the judiciary in their day-to-day mission to interpret and scrutinise the validity of public authorities’ measures. The case law of the European Court of Justice and the European Court of Human Rights similarly reveals an understanding of the rule of law as a structuring principle which these courts must always take into account in their day-to-day adjudicative role with a view of strengthening concrete compliance with it, and as an ‘umbrella principle’ Footnote 76 from which judges may derive formal and substantive components or sub-principles. While the case law in some national legal systems may not always be as straightforward and plentiful when it comes to recognising the normative impact of the rule of law, there is no doubt this principle has shaped the legal developments and implicitly or explicitly led to the recognition of new and justiciable principles in most legal systems in Europe.

Finally, multiple primary materials could be cited to evidence the dominant understanding of the rule of law as a foundational principle which shares a consubstantial and mutually reinforcing relationship with democracy and respect for human rights. To merely give two recent examples, one may refer to a resolution from the Parliamentary Assembly of the Council of Europe in relation to Poland adopted in January 2020 and the Rule of Law Conditionality Regulation adopted by the European Parliament and the Council of the EU in December of the same year:

The Assembly reiterates that democracy, the rule of law and respect for human rights are interlinked and cannot exist without one another. Footnote 77 Respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa. Footnote 78

In light of the above, the understanding and approach promoted by both the Council of European and the EU may be said therefore to amount to a thick/substantive conception of the rule of law rather than a thin/formal one. Footnote 79

3.2 The ‘Norm-Diffusion’ Dynamics Underlying the Process of Crystallisation of a Consensual Core Meaning

The Council of Europe and EU experiences suggest that the migration of the rule of law from the national to the regional level in Europe has subsequently led to a process that may described as ‘downstream retroaction’, that is, a process whereby regional legal developments have, in turn, affected national legal systems. It would be wrong however to think of the relationship between national and European understandings of the rule of law as being one-dimensional and static. On the contrary, one may reasonably contend that EU legal developments as well as the case law of the European Court of Human Rights have led to a reappraisal of national understandings. In other words, after assimilating the values and principles which the rule of law encompasses in various legal traditions, legal developments at the European level have shaped national understandings and in particular, the judicial interpretation and application of the different sub-components of the rule of law. In turn, national legal developments, influenced by membership of the EU and the Council of Europe, have revealed some innovative features which could then be ‘re-exported’, so much so that one can perhaps speak of constitutional ping-pong in this area, or, to use a less trivial expression, of intertwined constitutionalism. Footnote 80 Based on previous research, Footnote 81 one may argue that the impact or outcome of these processes of vertical and horizontal norm-diffusion has led to the emergence and subsequent solidification of four main shared traits between the dominant European and national legal understandings of the rule of law which are summarised in the figure below.

The four shared traits outlined above should not lead one to think that national or supranational understandings of the rule of law are static in nature. On the contrary, each legal system has naturally demonstrated a dynamic, evolving understanding of this principle. The ‘institutionalisation’ of the rule of law has also led to the creation and implementation of different arrangements and mechanisms. This is not in the least surprising. Indeed, as aptly explained by the Venice Commission, the existence of a common understanding of the core meaning and component of the rule of law does not have to ‘mean that its implementation has to be identical regardless of the concrete juridical, historical, political, social or geographical context’. Footnote 82 In this respect, the European Parliament was right to observe that the definition of the Union’s set of core values such as the rule of law ‘is a living and permanent process’ Footnote 83 with these values and principles evolving over time.

This diversity and dynamic evolution notwithstanding, the rule of law ought to be considered a fundamental and consensual element of Europe’s constitutional heritage, which has firmly established itself as an essential transnational principle of what may be referred to as ‘European constitutional law’—the body of principles common to the national constitutional orders and the EU and ECHR legal frameworks—whose core meaning and components are widely accepted across European legal systems or should we say, used to be widely accepted considering for instance the conceptual challenge originating from the current authorities of Hungary and Poland? This question will be addressed below.

4 Towards More Dissensus and a New East–West Divide?

The scholarly argument that the rule of law is a vague and/or must be understood as an essentially contested concept is not new. Footnote 84 What is new, at least within the EU, is that the very concept of the rule of law and/or the EU’s definition of it have been openly challenged, not least by two national governments as previously shown. At the same time, populist actors across the EU are keen to invoke the ‘will of the people’ to claim that legitimation through elections and/or referenda gives a licence to disregard inter alia the rule of law, Footnote 85 with some politicians going as far as to say that ‘the law has to follow politics and not politics the law’. Footnote 86 This has raised the question of whether ‘the common European values really common?’ Footnote 87 as the rule of law is primarily decried by representatives of governments and ruling parties from central and eastern European countries. However, as will be shown below, this does not mean that one could claim the emergence of a new ‘East–West divide’ with respect to the rule of law. Rather, it can be shown that there is evidence of a widely shared support for it in the face of top-down attempts to undermine the rule of law and in particular, national judiciaries. Footnote 88

4.1 An East–West Rhetorical Divide?

Rhetorically speaking, there is ample evidence of repeated critical statements originating from central and eastern European politicians with respect to the rule of law as a whole or some of its core—until now extremely consensual—components such as judicial independence. For instance, some strong criticism can be regularly heard from members of Hungary’s ruling party. To give only but a few examples, the rule of law was described as a ‘buzzword’ by the country’s justice minister Footnote 89 ; a fiction by a Fidesz MEP Footnote 90 ; and a ‘magic word’ by the Fidesz-KDNP Delegation to the European Parliament. Footnote 91 Not to be undone, a judge from Hungary’s (captured) constitutional court, has presented the rule of law ‘as a normative yardstick’ which ‘is little more than an empty nineteenth century ideal and a political joker for all purposes.’ Footnote 92 More sophisticatedly, the Hungarian prime minister has not denied the fundamental importance of the rule of law but challenged the EU’s authority to enforce it:

I speak as a member of the generation which, when young […] dreamt that in Hungary one day there would be freedom, democracy and the rule of law […] The rule of law means that people do not rule other people: in contrast with people – who are often biased – it is the law which rules supreme, according to a single standard applied equally to all, making no distinctions between individuals. As a new concept, I could also add that neither does it make any distinction between countries. The Member States have never transferred control over enforcement of the rule of law to the institutions of the EU. The remit of the EU institutions refers solely to the enforcement of EU law. Footnote 93

It is however difficult to fully understand what the Hungarian prime minister means when he refers to the law ‘making no distinctions between individuals’ considering a number of legal measures specifically pushed forward by his government in relation to George Soros or named after him. Footnote 94 It is also not clear what he means by ‘new concept’ considering for instance that the rule of law is mentioned in the Preamble of the 1948 Universal Declaration of Human Rights and referred to no less than five times in the 1949 Statute of the Council of Europe.

Be that as it may, a broadly similar critical case was made by the Hungarian government in its submission to the European Commission in reply to the Commission’s call for feedback on how to strengthen the EU’s rule of law toolbox in April 2019. Footnote 95 While there is no direct challenge as regards the identification of the rule of law as a value which is common to the Member States as stated by Article 2 TEU, the consensual core meaning previously identified is openly contested so as to pre-empt any EU intervention in situations where the rule of law is violated by national authorities:

It is common ground that the Union is founded on the value of respect for the rule of law; a value that is common to the Member States […] The principle of rule of law has been subject to an extensive constitutional dialogue with the participation of international organisations, national constitutional organs, academia and civil society. Nevertheless, this dialogue hasn’t changed the nature of rule of law as a constitutional principle that is constantly being tested and reshaped by the dialogue itself. Therefore, the starting point of the Commission that intends to portray rule of law as a set of well-defined rules and suggests that compliance can be objectively assessed is a clear misrepresentation of the rule of law concept and a misunderstanding of the related constitutional dialogue. Footnote 96

A broadly similar position has been defended by current Polish authorities, which are similarly subject to the exceptional procedure laid down in Article 7(1) TEU since December 2017 and, unlike Hungary, also subject to the Council of Europe’s special monitoring procedure since January 2020 on account of their repeated undermining of the rule of law and in particular judicial independence. Footnote 97 During the second Article 7(1) TEU hearing held in respect of Poland, the Polish government concisely expressed its understanding as follows: ‘The EU’s values [are] common but their implementation [is] in the hands of the Member States.’ Footnote 98 In other words, current Polish authorities do not object to the rule of law as such but are of the view that we would not yet have an agreed common definition of the rule of law in the EU and that any eventual common definition must first and foremost reflect the ‘national legal systems and traditions of all Member States. Footnote 99 In addition, the Polish government has denied the existence of standards which would be ‘universally applied in practice in the area of justice systems’. Footnote 100 While the Polish government did not clarify what it meant by universal ‘standards’ in this context, one must assume it does not believe there are universal or even European standards when it comes for instance to the right to an independent tribunal established by law. Footnote 101

This line of reasoning led the President of the CJEU to observe, writing extra-judicially, that ‘given that the principle of judicial independence stems from the constitutional traditions common to the Member States as one of the founding tenets of any democratic system of governance, it was assumed that national governments would not threaten it […] Recent developments show that this assumption cannot simply be taken for granted.’ Footnote 102 While the President of the CJEU did not of course explicitly name anyone, it is not too difficult to guess what he meant by ‘recent developments’ and the countries he must have had in mind. Subsequently, the European Court of Justice has authoritatively dealt with the claims made above in its twin rulings regarding the EU’s Rule of Law Conditionality Regulation and held inter alia that the rule of law embodies a number of principles which have been extensively developed in the case-law of the Court on the basis of the EU Treaties and have their source in common values which are also recognised and applied by the Member States in their own legal systems. Footnote 103 Furthermore, and contrary to the submissions made by the Hungarian and Polish governments, the principles derived from the rule of law cannot be said to be principles of a purely political nature but are legal principles with specific substantive content and which can be the subject of a strictly legal analysis.

4.2 An East–West Practical Divide?

Moving beyond the rhetoric, is there evidence of an East–West practical divide as far as the rule of law is concerned? To briefly assess the reality of this seemingly East–West divide, the results of different rule of law rankings and the data collected in respect to the multiple Article 7(1) TEU hearings to date will be presented below.

With respect to rule of law rankings, space preclude an examination of every single one of them but they appear to confirm that the rule of law is indeed under more intense threat in Eastern than Western Europe. To begin with, one may refer to the Rule of Law Index produced by the World Justice Project. Over the years, this index has highlighted the intense deterioration of the situation in EU Member States such as Poland and Hungary and EU candidate countries such as Serbia, especially when it comes to ‘constraints on government powers’, Footnote 104 which the WJP identifies as a sign ‘suggesting rising authoritarianism’ in a broader context however where 60% of the countries assessed by the WJP ‘show a decline over the last four years’ in this dimension of the rule of law. Footnote 105 The 2020 edition confirms previous tendencies and rankings with Hungary highlighted as one of the countries which experienced the largest average annual percentage drop in the rule of law over the past five years and Poland highlighted as one of the two countries (the other one being Egypt) having experienced the single biggest decline by factor over the past five years when it comes to constraints on government powers. Footnote 106 The most recent edition of the WJP Rule of Law Index show the prevalence of these tendances lourdes with Poland continuing to experience a sustained decline when it comes to constraints on government powers (-6.4%), with the same country and Hungary also experiencing the biggest declines of all EU countries when it comes to equal treatment and absence of discrimination. Footnote 107 The bottom six countries in the EU/EFTA/North America grouping remain the same in 2021 as in the previous year: Poland; Romania; Croatia; Greece; Bulgaria and Hungary.

Based on a narrower understanding of the rule of law, Footnote 108 the ranking produced by Bertelsmann Stiftung gives a virtually identical list with the six EU Member States with the lowest scores being Malta; Croatia; Bulgaria; Romania; Poland and Hungary. Footnote 109 Hungary is also the EU country which the same organisation no longer considers a ‘consolidated democracy’. Footnote 110 This is also the assessment of the V-DEM Institute which identified Hungary as the EU’s first electoral autocracy in their 2020 democracy report, Footnote 111 and Poland as the world’s most autocratising country in the last decade in their 2021 democracy report. Footnote 112 In their latest report, an additional number of EU countries are furthermore identified as experiencing a process of autocratisation:

Among the union members, Hungary and Poland are among the top autocratizers in the world over the last decade. Hungary turned into an electoral autocracy in 2018. Autocratization is now also affecting Slovenia, which is one of the top autocratizers in the world over the last three years. Croatia, Czech Republic, and Greece are also newly autocratizing countries. In addition, the EU’s neighbors on the eastern flank are becoming increasingly autocratic. Three of them have been autocratizing in the last decade. Turkey is still one of the top autocratizers, although it was already classified as an electoral autocracy by 2013. Serbia is a top autocratizer. Footnote 113

Lastly, one may briefly refer to the annual Global State of Democracy produced by the International IDEA which has similarly been warning about accelerating democratic backsliding in Europe, a process engineered by ruling political parties showing autocratic tendencies which while noticeable in several countries in Europe has been particularly discernible ‘in Central and Eastern Europe.’ Footnote 114 In its latest annual report to date, Hungary, Poland, Slovenia and Serbia are identified as belonging to the number of countries which experienced the greatest process of democratic backsliding since 2010. Footnote 115

A seemingly strong East–West divide appears when one looks at the national governments asking questions as part of the hearings organised within the framework of ongoing Article 7(1) TEU procedures in respect of Poland and Hungary. When presented in the form of a map, it is difficult not be struck by the geographical concentration of questions and comments in Western/Nordic European countries. Footnote 116

If one divides the EU Member States between those who never asked any questions (or made any comments) at any of the eight Article 7(1) TEU hearings to date (five have been organised in respect of Poland and three organised in respect of Hungary at the time of finalising this article), a seemingly strong East–West divide appear in addition to an apparently strong founding Member States versus post 2004 enlargement divide. Indeed, the only pre-2004 enlargement EU Member State which has never asked any question or made any comment is the United Kingdom which, due to Brexit, decided to disengage from Article 7(1) proceedings while also seeking to leverage this disengagement to secure support from the Polish and Hungarian governments in its negotiations with the EU. Footnote 117 As for the countries whose governments have never deemed it worthy to submit any questions to the Polish and/or Hungarian governments, we have a total of seven post 2004 EU Member States: (1) Bulgaria; (2) Croatia; (3) Czech Republic; (4) Latvia; (5) Lithuania; (6) Romania and (7) Slovakia.

On the basis of the rhetorical challenges and the data briefly presented above, it would be tempting to agree the existence of an East–West divide which could possibly reflect a nascent but growing dissensus regarding the rule of law which, as recently solemnly recalled by the Court of Justice, forms ‘part of the very foundations’ of the EU ‘and its legal order’. Footnote 118 Yet, as will be argued below, rather than an East–West divide, the real divide may instead be the one opposing national elites seeking to empty the rule of law of any core legally enforceable meaning and those who aim to defend the enforcement of this core meaning against autocratic authorities.

4.3 Or an Authoritarian-Liberal Divide at the Elite Level?

As previously mentioned, a number of EU Member States are experiencing a process of democratic and rule of law backsliding, that is a ‘process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.’ Footnote 119 This is a top-down , orchestrated hollowing-out of liberal democracies which, once completed, allows the new ‘illiberal elites’ to freely ‘appropriate state resources for partisan and private purposes, and expand informal patronage networks in order to penetrate society’. Footnote 120

The EU has not been immune to democratic and rule of backsliding with Poland Footnote 121 and Hungary Footnote 122 being the two most manifest examples of such a phenomenon. Crucially, there is no evidence in these two cases of initial and/or subsequent popular bottom-up demand for the structural undermining of judicial independence or a new constitutional autocratic order. Footnote 123 Yet, one can often read that ‘many surveys in recent years have shown rising support for illiberal and even quasi-authoritarian values in some parts of Europe’. Footnote 124 When it comes to the rule of law, opposing evidence can however be found. In addition to regular, popular and unprecedented demonstrations against governmental repeated attacks on the rule of law, in particular judicial independence, we have seen in countries such as Poland and Romania, Footnote 125 the results of a special Eurobarometer carried out in April 2019 and published in July 2019 does show a quasi-unanimous and widespread support for the rule of law in every single EU Member State. Footnote 126

For the purposes of this survey, the concept of the rule of law itself was divided into 17 principles which were grouped into 3 main thematic areas which reflected the Venice Commission and European Commission’s definitions of the rule of law: (1) Legality, legal certainty, equality before the law and separation of powers; (2) Prohibition of arbitrariness and penalties for corruption; and (3) Effective judicial protection by independent courts. The results show overwhelming majorities (above 85%) in each EU Member State finding each of the 17 principles as being essential or important.

The results for the two countries subject to Article 7(1) proceedings are also worth highlighting. Indeed, they suggest the ‘illiberal’ critique of the rule of law is yet to permeate popular views. With respect to Hungary, one may highlight the clear dominant view that there is a need for improvement when it comes to the 17 principles identified by the Eurobarometer. This is however not unique to Hungary. The countries where respondents appear to see the least need for improvement are Sweden, Netherlands and Denmark which is not surprising considering their usually top scores in the main rule of law rankings currently available.

With respect to Poland, one may highlight the broad (but below EU average) popular support for the propositions that ‘if your rights are not respected, you can have them upheld by an independent court’ and ‘judges are independent’. Footnote 127 Interestingly, and contrary to the rhetoric originating from the current government, only 26% of the respondents in Poland are of the view that there is a definitive need for improvement when it comes to the existence of ‘independent controls to ensure that laws can be challenged and tested’ and only 32% and 35% are of the same view regarding the previous two propositions mentioned. Footnote 128 This undermines the argument that there would be a popular demand for the so-called judicial reforms the country’s ruling coalition has relentlessly pushed for notwithstanding their manifest lack of compatibility with Poland’s Constitution and European rule of law standards. Footnote 129 In this respect, one may also refer to a poll whose results showed Poles trust the EU (68%) more than the Polish government—an important result considering the long-lasting nature of the rule of law conflict between EU institutions and current Polish authorities—while Polish courts (41.1%) are also more trusted than the government (30.5%) or the captured and irregularly composed ‘Constitutional Tribunal’ (32.5%). Footnote 130

More recent surveys continue to confirm this strong and widely shared support for the rule of law. One may in particular refer to the survey requested by the European Parliament at the time of final phase of negotiations regarding what became the EU’s Rule of Law Conditionality Regulation. Footnote 131 In addition to clear public support for more effective control of EU funds to be disbursed within the framework of the NextGenerationEU programme, 81% of the respondents agree with the proposition that ‘the EU should only provide funds to Member States conditional upon their government’s implementation of the rule of law and democratic principles’. This proposition is consensual in each of the Member States with more than seven in ten in agreement.

One may finally mention a survey published in January 2022 and forming part of a series presenting a snapshot of the way Europeans perceive the EU and its future. According to this Special Eurobarometer report, the EU’s respect for democracy, human rights and the rule of law was considered the EU’s main asset by 27% of the respondents, followed by its economic, industrial and trading power (25%), with Hungary for instance one of the eight countries where EU’s respect for its foundational values is ranked first or joint first. Footnote 132 Speaking of the future of Europe, one may also understand the prominence of the rule of law during the debates held within the framework of the Conference on the Future of Europe as additional evidence both of its large appeal and increasing salience at a time of spreading backsliding. Unsurprisingly, this led national and European citizens’ panels to make several recommendations to better protect it with the Conference Plenary adopting several proposals at the end of April 2022. Footnote 133

In light of the widely shared popular support for the rule of law, it is perhaps no surprise that the conceptual challenge originating from authoritarian populists and their captured bodies such as constitutional courts does not primarily target the concept of the rule of law as such but aims, under the guise of the concepts of constitutional identity and constitutional pluralism, Footnote 134 to redefine, in practice, to hollow out the rule of law. Indeed, if one looks for instance at the public positions adopted by the Hungarian prime minister or the current Hungarian justice minister, the theoretical importance of the rule of law as a constitutional value is not directly and openly challenged. Rather, we see attempts to redefine the core meaning of the rule of law as it has crystallised in the EU in a more authoritarian direction usually coupled with attempts to deny EU institutions any right to both define and enforce the rule of law. In other words, why throw the rule of law baby with the bathwater if you can be the one (re)defining the rule of law as rule by law. It was welcome, in this respect, to see the European Court of Justice directly and firmly deal with the definitional and conceptual claims made by the Hungarian and Polish governments when they sought the annulment of Regulation 2020/2092. As subsequently reiterated by the Court of Justice in the context of similar challenge originating from the Romanian constitutional court, while EU Member States are free to choose their respective constitutional model and the EU has an obligation to respect the constitutional/national identity of Member States, this cannot mean a licence to violate EU law and in particular the requirement that national courts must be independent. Footnote 135 The findings of the surveys mentioned above seriously undermine in any event the claim from representatives from ‘illiberal’ not to say authoritarian regimes that the EU does not and/or should pay more due regard to the alleged special ‘constitutional identity’ of their countries when it comes to the rule of law. Furthermore, their anti-EU ‘interference’ rhetoric flies in the face of overwhelming support across the EU for the proposition that all Member States must respect the core values on the EU, including fundamental rights, the rule of law and democracy. Footnote 136 One may draw the conclusion from this finding that there is in fact popular demand for the EU to more forcefully ‘defend’ inter alia the rule of law against  those seeking to systematically undermine it. Footnote 137 This makes it all the more surprising, if not irresponsible considering their legal duties under the Treaties, to see the current EU Commission and Council of the EU repeatedly failing to do so. Footnote 138

L. Pech and K. L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3.

Commission Communication, Strengthening the rule of law within the Union. A blueprint for action , Brussels, COM(2019) 343 final, 17 July 2019, p. 1.

WB Gallie, ‘Essentially contested concepts’ (1956) Proceedings of the Aristotelian Society 167.

European Commission, Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland. Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM(2017) 835 final; European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, OJ 2019/C 433/66. Most recently, the European Commission has activated for the first time Regulation 2020/2092 in respect of Hungary: See e.g. V. Makszimov, ‘Hungary: Commission officially launches procedure linking block funds to rule of law’, Euractiv.com , 27 April 2022, https://www.euractiv.com/section/politics/news/hungary-commission-officially-launches-procedure-linking-bloc-funds-to-rule-of-law/ .

‘Były szef MSZ komentuje list Jourovej ‘Konia z rzędem, kto znajdzie w traktatach UE definicję praworządności’’, Niezalezna , 27 December 2019, http://niezalezna.pl/303625-byly-szef-msz-komentuje-list-jourovej-konia-z-rzedem-kto-znajdzie-w-traktatach-ue-definicje-praworzadnosci .

J. Varga, ‘Facts You Always Wanted to Know about Rule of Law but Never Dared to Ask, Euronews , 22 November 2019, www.euronews.com/2019/11/19/judit-varga-facts-you-always-wanted-to-know-about-rule-of-law-hungary-view .

Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union Budget [2020] OJEU L 433 I/1.

See ground (iii) of Hungary’s annulment application in Case C-156/21, Hungary v European Parliament and Council , EU:C:2022:97 and ground (vi) of Poland’s annulment application in Case C-157/21, Poland v European Parliament and Council , EU:C:2022:98.

See V-Dem Institute, Autocratization Surges – Resistance Grows. Democracy Report 2020 , March 2020, p. 16: ‘The countries that have autocratized the most over the last 10 years are Hungary, Turkey, Poland, Serbia, Brazil and India’ with Hungary described in the same report as the EU’s first non-democratic member state and classified as an electoral autocracy.

M Claes, ‘Editorial Note: How Common are the Values of the European Union?’ (2019) 15 CYELP VII, pp. IX–X.

F. Jacobs, The sovereignty of law: The European way (The Hamlyn Lectures 2006, CUP 2007), p. 35.

Case 294/83, Parti écologiste ‘Les Verts’ v European Parliament , EU:C:1986:166.

See generally L. Pech, ‘The Rule of Law in the EU’ in P. Craig and G. de Burca (eds), The Evolution of EU Law (Oxford University Press, 3 rd edition, 2021), 307.

See Commission Decision 2006/928/EC of 13 December 2006, OJEU 2006 L 354/56 and Commission Decision 2006/929/EC of 13 December 2006, OJ 2006 L 354/58. Both CVM decisions were adopted on the basis of Articles 37 and 38 of the 2005 Treaty on the accession of Bulgaria and Romania.

Recital 3 of both Commission decisions cited above.

Joined Cases C-83/19, C-127/19 and C-195/19, Cases C-291/19, C-355/19 and C-397/19, Asociaţia ‘Forumul Judecătorilor din România , EU:C:2021:393.

See L. Pech, ‘The Rule of Law in the EU’, op. cit., pp. 324–325.

European Commission, A new EU Framework to strengthen the Rule of Law , COM(2014) 158 final/2, p. 4.

Ibid., p. 4.

See generally L. Pech and P. Bárd, The European Commission’s Rule of Law Report and the EU Monitoring and Enforcement of Article 2 TEU values , PE 727.551, February 2022.

European Commission, Strengthening the rule of law within the Union. A blueprint for action , COM(2019) 343 final.

Regulation 2021/947 of 9 June 2021, OJ L 209/1.

L. Pech, ‘Promoting The Rule of Law Abroad: On the EU’s limited contribution to the shaping of an international understanding of the rule of law’ in F. Amtenbrink and D. Kochenov (eds), The EU’s Shaping of the International Legal Order (Cambridge University Press, 2013), p. 117.

R. Janse, ‘Is the European Commission a credible guardian of the values? A revisionist account of the Copenhagen political criteria during the Big Bang enlargement’ (2019) 17(1) ICON 43, p. 46.

Ibid., p. 57.

Ibid., p. 58 and p. 60.

See Recital 6: ‘While there is no hierarchy among Union values, respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded […] Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa.’.

Case C-619/18, Commission v Poland (Independence of the Supreme Court) , EU:C:2019:531, para. 38.

Ibid., para. 52.

L. Pech, The Rule of Law as a Constitutional Principle of the European Union , Jean Monnet Working Paper 04/09, p. 16, https://jeanmonnetprogram.org/paper/the-rule-of-law-as-a-constitutional-principle-of-the-european-union/ .

See T. Tridimas, General Principles of EU law (Oxford University Press, 3rd edition, 2022).

Case C-64/16, Associação Sindical dos Juízes Portugueses (Portuguese Judges), EU:C:2018:117. A recent paper compellingly shows how the ECJ strategically exploited the suitable characteristics of this arguably inconspicuous case to produce a landmark ruling that enabled unprecedented enforcement action against democratic backsliding in Poland and Hungary, see M. Ovádek, ‘The making of landmark rulings in the European Union: the case of national judicial independence’ (2022) Journal of European Public Policy , https://doi.org/10.1080/13501763.2022.2066156

See generally L. Pech and D. Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice. A Casebook Overview of Key Judgments since the Portuguese Judges Case , SIEPS 2021:3, https://www.sieps.se/en/publications/2021/respect-for-the-rule-of-law-in-the-case-law-of-the-european-court-of-justice/ .

T.T. Koncewicz, ‘The existential jurisprudence of the Court of Justice of the European Union’ in K. Szczepanowska-Kozłowska (ed.),  Profesor Marek Safjan znany i nieznany. Księga jubileuszowa z okazji siedemdziesiątych urodzin (Ksiegarnia Beck, Warszawa, 2019), 223.

Opinions of Advocate General Campos Sánchez-Bordona delivered on 2 December 2021 in Case C-156/21, Hungary v European Parliament and Council , EU:C:2021:974, para. 267 and Case C-157/21, Poland v European Parliament and Council , EU:C:2021:978, para. 17.

See G. de Búrca, ‘Poland and Hungary’s EU membership: On not confronting authoritarian governments’ (2022) International Journal of Constitutional Law 1.

Opinion of Advocate General Campos Sánchez-Bordona delivered on 2 December 2021 in Case C-156/21, Hungary v European Parliament and Council , EU:C:2021:974.

See the Court’s two judgments of 16 February 2022 in Case C-156/21, Hungary v Parliament and Council , EU:C:2022:97 and Case C-157/21, Poland v Parliament and Council , EU:C:2022:98. For further analysis, see L. Pech, ‘No More Excuses: The Court of Justice greenlights the rule of law conditionality mechanism’, VerfBlog,  16 February 2022, https://verfassungsblog.de/no-more-excuses/ .

Court’s judgment in C-156/21, op. cit., paras 236–237.

Ibid., para. 240.

Ibid., para. 232.

Ibid., para. 265.

Ibid., para. 266.

Ibid., para. 144.

Ibid., para. 127.

Ibid., para. 126 and para. 128.

See R.D. Kelemen and L. Pech, ‘The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland’ (2019) 21 Cambridge Yearbook of European Legal Studies 59.

P. Faraguna, T. Drinóczi, ‘Constitutional Identity in and on EU Terms’, VerfBlog,  21 February 2022, https://verfassungsblog.de/constitutional-identity-in-and-on-eu-terms/ .

This proliferation of references to the rule of law and variable emphasis on its different components has been particularly noticeable in the area of EU external relations law and policy. See L. Pech ‘The EU as a Global ‘Rule of Law Promoter’: The Consistency and Effectiveness Challenges’ (2016) 14(1) Europe-Asia Journal 7.

See C-477/16 PPU, Kovalkovas , EU:C:2016:861, para 36: The judiciary must ‘be distinguished, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, from the executive.’ See also C-452/16 PPU, Poltorak , EU:C:2016:858, para 35.

See European Commission reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland, COM(2017) 835 final, 20 December 2017, para. 100: ‘The refusal to publish the judgment denies the automatic legal and operational effect of a binding and final judgment, and breaches the rule of law principles of legality and separation of powers’.

See e.g. Baka v.   Hungary [GC], CE:ECHR:2016:0623JUD002026112, para. 165. One may however note that the European Court of Human Rights has, at times, seemingly distinguished ‘the fundamental principles of the rule of law and the separation of powers’ rather than including the former in the latter. Yet the Court does also sometimes suggest the opposite: ‘the right to “a tribunal established by law” is a reflection of [the] very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. That said, the principle of the rule of law also encompasses a number of other equally important principles’. See Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020, paras 233 and 237.

See footnote 7 of Regulation 2020/2092 referring to the Court’s judgments in Case C-279/09, DEB , EU:C:2010:811 and C-477/16 PPU, Kovalkovas and C-452/16 PPU, Poltorak , op. cit. Post Regulation 2020/2092, additional judgments have presented the principle of the separation of powers as a characteristic of the operation of the rule of law. See e.g. Case C-896/19,  Repubblika , EU:C:2021:311, para 54.

See most recently R.D. Kelemen, ‘Appeasement, ad infinitum’ (2022) 29(2) Maastricht Journal of European and Comparative Law 177.

‘Były szef MSZ komentuje list Jourovej’, op. cit.

S. Biernat and M. Kawczyńska, ‘The Role of the Polish Constitution (Pre-2016): Development of a Liberal Democracy in the European and International Context’ in A. Albi and S. Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (TMC Asser Press 2019) 745, p. 762.

See W. Sadurski, “Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler” (2019) 11 Hague Journal on the Rule of Law 63.

Biernat and Kawczyńska, op. cit., p. 759.

With the arguable exception of Spain as the Spanish Constitution offers a list of the formal components at the heart of the Estado de Derecho . For further analysis and ample references, see L. Pech and J. Grogan (eds), Unity and Diversity in National Understandings of the Rule of Law in the EU , RECONNECT, Deliverable 7.1, 30 April 2020, https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.1-1.pdf .

KL Scheppele and L Pech, ‘Is the Rule of Law Too Vague a Notion?’, VerfBlog , 1 March 2018, https://verfassungsblog.de/the-eus-responsibility-to-defend-the-rule-of-law-in-10-questions-answers .

Case C-64/16, Associação Sindical dos Juízes Portugueses , EU:C:2018:117, para. 32.

Venice Commission, Report on the Rule of Law , Study 512/2009, 4 April 2011, para. 35. For a similar diagnosis, see also L. Pech, The Rule of Law as a Constitutional Principle of the European Union , Jean Monnet Working Paper 04/09, p. 16, https://jeanmonnetprogram.org/paper/the-rule-of-law-as-a-constitutional-principle-of-the-european-union/ .

European Commission, Further strengthening the Rule of Law within the Union. State of play and possible next steps , COM(2019) 163 final, p. 11.

Case C-430/21, EU:C:2022:99, para 43.

Commission Communication, Strengthening the rule of law within the Union. A blueprint for action , COM(2019) 343 final, 17 July 2019, p. 1.

The Council of Europe and the Rule of Law – An Overview , CM(2008)170, para. 33.

See L. Pech, ‘Promoting The Rule of Law Abroad’, op. cit.

Venice Commission, Report on the Rule of Law , op. cit., para 55.

D. Kochenov and L. Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11(3) European Constitutional Law Review 512, p. 523.

C-156/21, op. cit., para. 229 and C-157/21, op. cit., para. 324.

For a detailed account, see L. Pech and J. Grogan (eds), Unity and Diversity in National Understandings of the Rule of Law in the EU , RECONNECT, Deliverable 7.1, 30 April 2020, https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.1-1.pdf .

For further analysis, see J. Grogan and L. Pech (eds), The crystallisation of a core EU meaning of the rule of law and its (limited) normative influence beyond the EU , RECONNECT, Deliverable 7.3, 30 April 2021, https://reconnect-europe.eu/wp-content/uploads/2021/04/D7.3.pdf .

To borrow the expression used by G Marshall, ‘The Rule of Law. Its Meaning, Scope and Problems’ (1993) 24 Cahiers de philosophie politique et juridique 43.

PACE, The functioning of democratic institutions in Poland , Resolution 2316 (2020), para. 1.

Regulation 2020/2092, op. cit., recital 6.

For a recent overview of thin and substantive understandings of the rule of law, see R. Coman, The Politics of the Rule of Law in the EU Polity (Palgrave, 2022), p. 45 et seq.

J. Ziller, ‘National Constitutional Concepts in the New Constitution for Europe’ (2005) 1 European Constitutional Law Review 452, p. 480.

See Pech and Grogan, Unity and Diversity in National Understandings of the Rule of Law in the EU , op. cit.

Venice Commission, Report on the Rule of Law , op. cit., para 34.

European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), recital J.

For a recent account, see J. Waldron, ‘The Rule of Law as an Essentially Contested Concept’ in J. Meierhenrich and M. Loughlin (ed.), The Cambridge Companion to the Rule of Law (Cambridge University Press, 2021), 121.

See N. Lacey, ‘Populism and the Rule of Law’ in Meierhenrich and Loughlin, ibid., 458.

H. Kickl, then Federal Minister of the Interior of the Republic of Austria, quoted by M. Steinbeis, ‘Minister of Civil Resistance’ , Verfassungsblog , 26 January 2019, https://verfassungsblog.de/minister-of-civil-resistance .

M. Claes, op. cit., p. VII.

As observed by the Secretary General of the Council of Europe, undermining the judiciary is always ‘on page one of the populist playbook’ as judges are viewed ‘an obstruction to populism […] as a result of their refusal to bow to political whims’ and ‘their willingness to assert the rule of law against political agendas which would otherwise trample it’, Council of Europe (Annual report by the Secretary General), State of Democracy, Human Rights and the Rule of Law: Populism – How strong are Europe’s checks and balances? , April 2017, p. 15.

J. Varga, ‘Facts You Always Wanted to Know about Rule of Law but Never Dared to Ask’, Euronews , 22 November 2019, www.euronews.com/2019/11/19/judit-varga-facts-you-always-wanted-to-know-about-rule-of-law-hungary-view .

Quoted in K Zoltán, ‘Fidesz MEP issues apology after claiming Spain holds political prisoners’, Index.hu , 5 December 2019, https://index.hu/english/2019/12/05/jozsef_szajer_fidesz_spain_political_prisoners_apology/ .

Press Release by the Fidesz-KDNP Delegation to the European Parliament, 5 September 2019, https://fidesz-eu.hu/en/with-timmermans-at-the-forefront-pro-migration-forces-prepare-once-more-for-revenge/ .

Quoted in M. Steinbeis, ‘Piercing the Hull’, Verfassungsblog,  12 January 2019, https://verfassungsblog.de/piercing-the-hull/ .

Prime Minister V Orbán, Speech at the launch of the Judicial Handbook on 5 March 2018, Budapest: www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-launch-of-the-judicial-handbook .

See most recently ‘EU court slams Hungary’s ‘Stop Soros’ law’, Deutsche Welle , 16 November 2021, https://p.dw.com/p/433eh (infringement case is known as C-821/19).

European Commission, Further strengthening the Rule of Law within the Union. State of play and possible next steps , COM(2019) 163 final, p. 15.

European Commission, Stakeholder contribution on rule of law from Hungary, 17 July 2019, p. 1, https://ec.europa.eu/info/publications/stakeholder-contributions_en .

Council of Europe (Parliamentary Assembly), ‘PACE decides to open monitoring of Poland over rule of law’, 28 January 2020, https://pace.coe.int/en/news/7766 .

Council of the EU, Report of the Hearing held by the Council on 18 September 2018, Doc No 12970/18, 5 November 2018, p. 8.

See European Commission, Stakeholder contribution on rule of law from Poland, 17 July 2019, p. 3, https://ec.europa.eu/info/publications/stakeholder-contributions_en .

This position may be viewed as a convenient one considering the repeated and systemic violation of this fundamental right organised by current Polish authorities. For a recent example, see judgment of 3 March 2022 in the case of Advance Pharma sp. z o.o v. Poland , CE:ECHR:2022:0203JUD000146920, in which the European Court of Human Rights held that the civil chamber of Poland’s Supreme Court, when consisting of newly appointed judges, is not an independent court established by law.

K Lenaerts, ‘New Horizons for the Rule of Law Within the EU’ (2020) 21 German Law Journal 29, pp. 30–31.

See supra Sect.  2.2 .

World Justice Project, Rule of Law Index 2019 Insights , p. 7.

Ibid, p. 18.

World Justice Project, WJP Rule of Law Index 2020: Global Press Release , 11 March 2020:

 <  https://worldjusticeproject.org/news/wjp-rule-law-index-2020-global-press-release  > .

World Justice Project, Rule of Law Index 2001 Insights , 2021: https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2021 .

The following four are used: (i) Legal certainty; (ii) judicial review; (iii) appointment of justices and (iv) corruption prevention. By contrast, the WJP Rule of Law Index relies on four broader principles: (i) accountability; (ii) just laws; (ii) open government and (iv) accessible and impartial dispute resolution. These four principles are further developed in eight factors such as constraints on government powers.

SGI Network, ‘Quality of Democracy: Rule of Law’, https://www.sgi-network.org/2020/Robust_Democracy/Quality_of_Democracy/Rule_of_Law .

Bertelsmann Stiftung, Policy Performance and Governance Capacities in the OECD and EU. Sustainable Governance Indicators 2018 , p. 8.

V-Dem Institute, Autocratization Surges – Resistance Grows. Democracy Report 2020 , pp. 4 and 13.

V-Dem Institute, Autocratization Turns Viral. Democracy Report 2021 , March 2021, p. 19.

V-Dem Institute, Autocratization Changing Nature. Democracy Report 2022, March 2022, p. 25.

International IDEA, The Global State of Democracy 2019. Addressing the Ills, Reviving the Promise , 19 November 2019, p. 214.

International IDEA, The Global State of Democracy 2021. Building Resilience in a Pandemic Era , 22 November 2021, p. 6.

This Article 7(1) hearings map reflects the following reports compiled by the Council and which the present author has obtained following multiple access to document requests as the Council continues, for reasons which remain unclear, to classify them as a “LIMITE”: Council documents no 10906/18; no 12970/18; no 15469/18; no 10246/21 and no 6600/22 in respect of Poland and Council documents no 12345/19; no 5775/20 and no 10247/21 in respect of Hungary. At the time of finalising this article, the formal report for the fourth Article 7(1) hearing of Hungary, which took place on 22 May 2022, had yet to be made public.

See e.g. D. Boffey, ‘EU hearing puts Poland in dock over judicial changes’, The Guardian , 26 June 2018 (‘Arriving in Luxembourg, the UK’s minister in the room, Martin Callanan, expressed the British government’s belief that the commission should not be meddling in the domestic affairs of an EU member’); J. Stone, ‘Brexit pushes Theresa May into alliance with Hungary’s right-wing populists as Tories vote against sanctions’, Independent , 27 June 2018.

C-156/21, op. cit., para. 128.

Pech and Scheppele, op. cit., p. 10.

International IDEA, The Global State of Democracy 2019 , op. cit., p. 226.

See e.g. H Tworzecki, ‘Poland: A Case of Top-Down Polarization’, ANNALS, AAPSS, 681, January 2019, 97: Democratic backsliding in Poland has been ‘a process driven from the top down by a segment of the political class that donned the cloak of radical populist anti-establishmentarianism to gain popular support, win an election, and rewrite the constitutional rules of the game to its own benefit’ which only subsequently resulted in polarization at the level of the electorate.

See e.g. P. Bárd and L. Pech, How to build and consolidate a partly free pseudo democracy by constitutional means in three steps: The “Hungarian model , RECONNECT Working Paper No. 4, October 2019, https://reconnect-europe.eu/wp-content/uploads/2019/10/RECONNECT-WP4-final.pdf .

On the contrary, rule of law backsliding represents a top-down strategy. See Bárd and Pech, ibid., and H Tworzecki, ‘Poland: A Case of Top-Down Polarization’, ANNALS, AAPSS, 681, January 2019, p. 97 (Democratic backsliding in Poland has been ‘a process driven from the top down by a segment of the political class that donned the cloak of radical populist anti-establishmentarianism to gain popular support, win an election, and rewrite the constitutional rules of the game to its own benefit’).

International IDEA, The Global State of Democracy 2019 , op. cit., p. 225 referring to R. Foa and Y. Mounk, ‘The signs of deconsolidation’ (2017) 28 Journal of Democracy 5.

See e.g. K. Connolly, ‘Poland’s president to veto controversial laws amid protests’, The Guardian , 24 July 2017; ‘Romania: Protests against judicial changes’, Deutsche Welle , 24 February 2019.

Special Eurobarometer 489, Rule of law Report, July 2019: https://europa.eu/eurobarometer/surveys/detail/2235 .

Eurobarometer 91.3, Rule of Law, Factsheet Poland, p. 3: https://europa.eu/eurobarometer/surveys/detail/2235 .

Ibid., p. 2.

See L. Pech, P. Wachowiec and D. Mazur, ‘Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action’ (2021) 13 Hague Journal on the Rule of Law 1.

D Tilles, ‘Poles trust EU the most and government the least among institutions, finds poll’, Notes from Poland , 30 January 2020, https://notesfrompoland.com/2020/01/30/poles-trust-eu-the-most-and-government-the-least-among-institutions-finds-poll/ .

Flash Eurobarometer, State of the European Union, September 2021, https://www.europarl.europa.eu/at-your-service/files/be-heard/eurobarometer/2021/soteu-flash-survey/soteu-2021-report-en.pdf .

Special Eurobarometer 517 Report on the Future of Europe, 25 January 2022, p. 33: https://europa.eu/eurobarometer/surveys/detail/2554 .

See proposal no 25 whose main objective it to “systematically uphold the rule of law across all Member States” in Draft proposals of the Conference on the Future of Europe published on 27 April 2022: https://futureu.europa.eu/ .

R Dan Kelemen and L Pech, ‘Why autocrats love constitutional identity and constitutional pluralism: Lessons from Hungary and Poland’, RECONNECT Working Paper No 2 (September 2018).

See most recently Case C-430/21, EU:C:2022:99, in which the Court of Justice further made explicit that no constitutional court has the jurisdiction ‘to disapply a rule of EU law, on the ground that that rule undermines the national identity of the Member State concerned as defined by the national constitutional court’, para. 70.

Special Eurobarometer 489, Rule of law Report, op. cit., p. 12.

C-156/21, op. cit., para. 127.

On the current Commission’s recurrent appeasement of authoritarian populists and concomitant dereliction of duties on the rule of law front, see most recently D.R. Kelemen, ‘Appeasement, ad infinitum’ (2022) 29(2) Maastricht Journal of European and Comparative Law 177, p. 177 (‘The capacity of the von der Leyen Commission (and of Commissions before it) to contrive excuses for refusing to enforce the EU rule of law norms that all Member States have committed to respect is something awesome to behold. The excuses keep changing, but the procrastination and appeasement are consistent’); P. Bárd and D. Kochenov, ‘War as a pretext to wave the rule of law goodbye? The case for an EU constitutional awakening’ (2022) European Law Journal , https://doi.org/10.1111/eulj.12435 , p. 6 (‘Rewarding the autocrats in power in Poland with billions of euros of Covid recovery fund for the destruction of the system of independent judiciary (…) von der Leyen Commission has reached an unfathomable new low in eagerly flushing Article 2 TEU values down the drain along with billions of EU money. The war came handy to wave the values goodbye, potentially steeply exacerbating the Rule of Law crisis and putting the Union’s future as a democratic community of law in danger’)

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Pech, L. The Rule of Law as a Well-Established and Well-Defined Principle of EU Law. Hague J Rule Law 14 , 107–138 (2022). https://doi.org/10.1007/s40803-022-00176-8

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Rule of Law, History, Principles, Important Factors, Significance

Rule of law meaning, rule of law under the indian constitution, rule of law in india exceptions, important judgements regarding the rule of law, rule of law upsc pyqs, rule of law faqs.

Prelims :   Indian Polity & Governance – Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.

Mains: Statutory, Regulatory and various Quasi-judicial Bodies.

Rule of Law is one of the ideals of political morality and the government which is based on principles of law and not of men. It acts as a building block for the formation of a democratic society. It is based on the four universal principles - just law, open government, impartial and accessible justice, and accountability. The term ‘Rule of Law’ is nowhere defined in the Indian Constitution but this term is often used by the Indian judiciary in the various judgements. 

Rule of Law has been declared by the Supreme Court as one of the basic features of the Constitution and is seen as an integral part of good governance. It is the cornerstone of our democracy, so we must have an independent and impartial judiciary which is the preserver and protector of the Rule of Law. 

The argument about the Rule of Law began in Ancient Greece with Aristotle and proceeded with medieval and early modern theorists such as Sir John Fortescue, John Locke, Niccolo Machiavelli, Montesquieu, etc.

• Modern era: In the modern era, A. V. Dicey, F.A. Hayek, John Rawls, etc. worked on the concept. 
• According to Prof. Dicey , the term "rule of law" refers to the complete dominance over the influence of arbitrary power and discretionary power of the government.
• Dicey regarded the rule of law as the bedrock of the British Legal System. This doctrine is accepted in the constitutions of the U.S.A. and India.

Dicey’s Rule of Law

According to A.V. Dicey, the rule of law contains three basic principles:

• Supremacy of Law: The first meaning of the Rule of Law is that 'No man is subject to punishment or maybe legitimately forced to suffer in body or property unless there has been a clear violation of the law that has been proven in a regular court of the law.
• Equality before Law: The second meaning of the Rule of Law is that no man is above the law.
• The Predominance of Legal Spirit : The third interpretation of the Rule of Law holds that the fundamental tenets of the Constitution are the outcome of court rulings that ascertain private parties' rights in specific cases that are brought before the Court.

Rule of Law Characteristics

The following are the characteristics of the Rule of Law: 

• There must be the supremacy of law .
• No one should be above the law, everybody is equal before the law . 
• The accusation should be proven by an autonomous entity such as a court.
• It protects against the arbitrary actions of men.
• All the actions of the organs of government must be in accordance with laws.
• The judiciary is the preserver and protector of the rule of law.
• It takes into account the principle of natural justice .
• It is the f undamental basis of the democracies around the world. 

The Indian Constitution contains numerous provisions based on this doctrine. The rule of law is implicitly given in the various provisions of the Constitution. All the three organs of the government (Legislative, Executive and Judiciary) must adhere to the principle of the Rule of Law. 

• Any law made by the Central Government or State Governments must be consistent with the Constitution of India. 
• Preamble: The Constitution of India is enriched with the principles of law, such as justice, equality and liberty. 
• Article 21: The right to life and personal liberty cannot be curtailed except procedure established by the law under article 21.
• Article 14: Dicey’s ideas of equality before the law is provided under Article 14 of the Indian Constitution establishing the idea of equality before the law and equal protection under the law.

In India, Dicey’s concept of the rule of law cannot be said to be followed in the strict sense; there are certain exceptions provided under the Indian Constitution and other laws. 

• Discretionary powers to the President and Governor:
• Under Articles 72 and 161 , the President and the Governor respectively are empowered to pardon, reprieve, respite, or remit punishment, as well as to suspend, remit, or commute the sentence of any individual found guilty of any crime. 
• Article 85gives the President discretion concerning the prorogation of either House of Parliament or the dissolution of the House of People. 
• The governor is allowed to reserve bills for consideration under Article 200 and to send the report to the President under Article 356 of the Constitution.
• The President/Governor is not answerable to the court of law in discharging his executive functions.
• No criminal proceedings can be instituted against the President or the State Governors while in office.
• No civil proceedings in which relief is claimed can be filed against the President or Governor except after the expiration of a 2-month notice served on him.
• Police: As part of the executives, police are given discretionary powers of arrest without warrant for cognisable offenses. 
• Public servants: Administrative officers, municipal authorities, etc. have been provided with certain immunities and privileges for better functioning of the system.
• Criminal courts: Indian criminal courts possess broad discretionary authority regarding sentencing.
• Diplomatic immunities: Under international law, visiting heads of state, heads of government, ministers, officials and foreign diplomats posted in the country are not subjected to the jurisdiction of local courts in the discharge of their official functions.

Although the word ‘rule of law’ has no set formulation in the Constitution, The Supreme Court in the various judgements gave the meaning to the rule of law.

• Indira Gandhi v. Raj Narain: In this landmark case, the Apex Court held that the doctrine of “Rule of Law” enshrined under Article 14 forms the ‘Basic Structure’ of the Constitution.
• This case is also known as the “ Habeas Corpus case. ” It is one of the most important cases regarding the rule of law. 
• Before the Hon'ble Court, the question was whether there was any rule of law in India other than Article 21 of the Indian Constitution. 
• Although the majority’s decision was negative, Justice H.R. Khanna issued a dissenting opinion by stating that the state has no power to deprive a person of freedom even without the authority of law, even in the absence of Article 21. 
• The Supreme Court stated that Article 21 cannot allow arbitrary or irrational processes, even though it mentions "process established by law."
• The Supreme Court in this case propounded that there exists a special relationship between Articles 14, 19 and 21 and each law must pass the test of said provisions.
• In this case, it was held that the absence of arbitrary power is the postulate of the rule of law upon which the whole constitutional edifice is dependent.
• In this case, the Supreme Court enunciated the concept of the rule of law as one of the most important aspects of the doctrine of basic structure.

Question 1: In essence, what does 'Due Process of Law' mean? (UPSC Prelims 2023)

• The principle of natural justice
• The procedure established by law
• Fair application of law
• Equality before law

Answer: (c) 

Question 2: A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (UPSC Prelims 2021)

Answer: (a) 

Question 3: Which of the following are regarded as the main features of the “Rule of Law”? (UPSC Prelims 2018)

• Limitation of powers
• People’s responsibility to the Government
• Liberty and civil rights

Select the correct answer using the code given below :

• 1 and 3 only
• 2 and 4 only
• 1, 2 and 4 only
• 1, 2, 3 and 4

Answer: (c)

Q1. What is the rule of law?

Ans. Under the rule of law, the state is governed not by the ruler or the nominated representatives of the people but by the law. It presents four universal principles: impartial and accessible justice, just law, open government, and accountability.

Q2. The principle of the rule of law was created by whom?

Ans. A.V. Dicey developed the Rule of Law doctrine in his book "Introduction to the Law of Constitution (1885)."

Q3. Is there a rule of law under the Indian Constitution?

Ans. The rule of law is also implicitly given in the Preamble and Part III of the Indian Constitution. In cases of violation of Constitutional or legal rights, one can approach the Supreme Court or High Court under Article 32 and Article 226 of the Indian Constitution.

Q4. What arguments are made against the rule of law?

Ans. Opponents of the rule of law contend that an excessive focus on the legal system leads to serious vices of its own, such as overly rigid legalism and a disregard for the political or practical aspects of legal disputes.

Q5. Are there any exceptions to the rule of law in India?

Ans. There are certain exceptions provided under the Indian Constitution and other laws. Such as the existence of wide discretionary powers for the executives and certain immunities and privileges under Articles 72, 161, 85, 200 and 356.

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