Rule of Law

by

Paul Gowder

• LAST REVIEWED: 18 March 2021
• LAST MODIFIED: 28 November 2016
• DOI: 10.1093/obo/9780199756223-0197

Introduction

The rule of law spans normative political philosophy and philosophy of law, as well as empirical political science and economics, and has a very small core of consensus and a very large periphery of disagreement. The general consensus among philosophers and lawyers essentially covers the propositions that it is (or is used as) a normative legitimacy criterion for a political state, and that it requires government officials to follow the law. It is often contrasted to the “rule of (wo)men”—the simple exercise of arbitrary power, as well as “rule by law”—the instrumental use of legal institutions by authoritarian rulers. Scholars disagree, however, about many fundamental questions about such matters as the relationship between the rule of law and private property rights, its compatibility with administrative law’s blending of executive and judicial powers, its relationship to the normative value and practical consequences of democracy, the extent to which the rule of law is consistent with legal indeterminacy, and whether or not a state must satisfy the rule of law, at least partially, to have law at all. In addition, there is a serious divergence between the rule of law literature in philosophy and law and the literature in economics, political science, and development practice. While both claim to be writing about the same concept, the concrete political realities that the two sets of literatures attach to it can be very different, with the latter often focusing more on concrete political institutions and economic arrangements rather than the core ideas of constraint of power. In the empirical literatures, most agree that the rule of law supports economic development, but there is much debate on how it is best measured and promoted. The references herein explore the many sides of these issues.

General Overviews

There are several attempts to bring the entire body of scholarship about the rule of law together in an accessible fashion. The most widely used is Tamanaha 2004, which covers both the normative and empirical literatures. On the normative/conceptual side, Krygier 2012 provides a more focused overview of the philosophical literature and Fallon 1997 of the legal literature; the two together will give the reader a fairly comprehensive understanding of the basic approaches to the rule of law in play. Rodriguez, et al. 2010 offers an important critique of the literature as a whole. Gowder 2016 offers a more recent overview and an attempt at a unified theory. Bingham 2010 provides a brief exegesis that rests squarely within the mainstream of contemporary normative thought.

• Bingham, Tom (Lord). The Rule of Law. London: Penguin, 2010.

  Bingham provides a general introduction to the concept of the rule of law, as typically understood by lawyers and philosophers, in this short volume. While its focus (appropriately, for a law lord), is on the British case, it is particularly suitable for general readers and undergraduates in all countries.

• Fallon, Richard H., Jr. “‘The Rule of Law’ as a Concept in Constitutional Discourse.” Columbia Law Review 97.1 (1997): 1–56.

  DOI: 10.2307/1123446

  While focused on US debates, Fallon nonetheless tracks a number of strands in the literature on the rule of law that apply with equal force to global conversations on the subject. An essential reference for its review of the different “ideal types” of the rule of law as understood by scholars.

• Gowder, Paul A. The Rule of Law in the Real World. New York: Cambridge University Press, 2016.

  DOI: 10.1017/CBO9781316480182

  Gowder offers an egalitarian theory of the rule of law that attempts to unify the normative accounts given by lawyers and philosophers with the social scientific accounts of political scientists, economists, and development practitioners. Using historical analysis, philosophical argument, and game theory, this book argues that the rule of the rule of law has a teleology of equality in actual states.

• Krygier, Martin. “Rule of Law.” In The Oxford Handbook of Comparative Constitutional Law. Edited by Michel Rosenfeld and Andras Sajo, 233–249. Oxford: Oxford University Press, 2012.

  An excellent brief overview of the approaches out there to the rule of law, with a helpful framework for thinking about the different views in the area in terms of “anatomical” versus “teleological” approaches, as well as in terms of institutions, rules, and principles.

• Rodriguez, Daniel B., Mathew D. McCubbins, and Barry R. Weingast. “The Rule of Law Unplugged.” Emory Law Journal 59 (2010): 1455–1494.

  A careful overview of the territory of rule of law scholarship, Rodriguez, McCubbins, and Weingast argue that theory and practice have come apart in the literature and offer a framework for what a strong account of the rule of law should accomplish.

• Tamanaha, Brian Z. On The Rule of Law: History, Politics, Theory. New York: Cambridge University Press, 2004.

  DOI: 10.1017/CBO9780511812378

  One of the most widely referenced general sources on the rule of law, On The Rule of Law describes both normative and empirical/development literatures and is an excellent starting point for students and non-specialists.