The Rule of Law: A Slogan in Search of a Concept

Abstract

Regularly invoked but rarely defined, ‘the rule of law’ has over the last few decades been converted from a legal term of art into one of the most ambiguous slogans of contemporary public policy. Political scientists claim it as a crucial test of a regime’s legitimacy. Economists maintain that it provides an essential foundation of a flourishing market economy. Philosophers suggest it captures the essence of the state as a moral association. Historians acknowledge that, even if they might distrust such an abstract notion, the imposition of effective inhibitions on power is an ‘unqualified human good’. And lawyers, of course, have treated it as the foundation of their discipline ever since the mid-thirteenth century when Bracton asserted that ‘there is no rex where will rules rather than lex’. Those who extend its usage beyond the confines of professional legal discourse commonly give it a positive valence. But the rule of law also has its detractors. These critics assert that it promotes purely formal, individualistic values at the expense of substantive justice, or that it is a smokescreen preventing us from seeing the impact of recent global developments that signal the rule of lawyers. Some anthropologists even denounce it as an imperial ideology that legitimates European conquest and the plunder of the rest of the world. But given the fact that almost every state in the world now claims to act in compliance with the rule of law, these critics seem to have done little to dent its appeal. Yet, the sheer range of views and perspectives that now exist about the meaning, purpose, and value of the rule of law considerably complicates any inquiry into its current standing. In this paper, I will try to bring some clarity to the issue by providing a sketch of the main varieties of ways in which the term is being invoked. The paper comprises five sections, which each address a specific aspect of the term’s usage: (1) its coinage in English law, (2) the adoption of a superficially similar terminology in the German concept of the Rechtsstaat, (3) the jurisprudential innovations that complicate its meaning, and finally its most recent invocation (4) first in development work and (5) secondly in constitutional rejuvenation.