The Rule of Law from Below – A Concept Under Development

Abstract

The rule of law is a central notion in legal thought and in the practice of democratic states. While a contested term, scholars have articulated its contours – both formal and substantive. This includes ideas such as legal certainty, prospectivity, access to justice, and the fact that everyone should be accountable under the law. Much of the scholarship has centred on states and international organisations as the primary entities responsible for protecting the rule of law. By contrast, the relationship between individuals and groups of people in civil society vis-à-vis the rule of law is under-explored in (international) law. This special issue is therefore dedicated to elaborating upon this relationship – the ‘rule of law from below.’ This Introduction sets out the concept and illustrates it with examples of the innovative ways that people are using in practice to support the rule of law from below. While noting that the concept of ‘rule of law from below’ is one under development, we argue that there is much value in investigating instances where actors beyond formal state institutions, who have no constitutional or other formal legal role, take it upon themselves to uphold and defend the rule of law. This is especially important in today’s global context of shifts in power between state and non-state actors, as well as pervasive democratic and rule-of-law backsliding.