Political Science Rule of Law
by
Paul Gowder
  • 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.

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    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.

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

      DOI: 10.2307/1123446Save Citation »Export Citation »E-mail Citation »

      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.

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

        DOI: 10.1017/CBO9781316480182Save Citation »Export Citation »E-mail Citation »

        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.

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        • 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.

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          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.

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

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            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.

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

              DOI: 10.1017/CBO9780511812378Save Citation »Export Citation »E-mail Citation »

              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.

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              Journals

              There is only one, relatively new, major journal focused on the rule of law. It is, however, attracting the attention of a strong group of scholars, including some of the leaders of the field. Accordingly, while it tends to focus on relatively niche or regional questions, it is well worth examination by those beginning research projects in the area.

              • Hague Journal on the Rule of Law.

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                Published by Cambridge University Press since 2010. Notable for its unique position as the only serious rule of law journal, also for including both development/practice-oriented and philosophical works in its pages. The student beginning research in this area is well advised to browse its table of contents as a starting point.

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                Anthologies

                The rule of law does not have the benefit of significant anthologies, in the strict sense of a collection of previously published writings on the subject. It does, however, have several very important edited volumes that serve similar functions, and which are, for that reason, included in this section. Of particular importance are the two Nomos volumes, Shapiro 1994 and Fleming 2011, which are the products of conferences bringing together lawyers, philosophers, and political scientists for cross-disciplinary perspectives on the topic. Maravall and Przeworski 2003 collects perspectives from the broadly understood strategic wing of political science. Marshall 2014 and Zurn, et al. 2012 focus on cross-national development, as does McAdams 1997, although the latter is oriented toward case studies of individual states. Silkenat, et al. 2014 approaches the philosophical concept of the rule of law from a comparative perspective.

                • Fleming, James E., ed. Nomos L: Getting to the Rule of Law. New York: New York University Press, 2011.

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                  This volume contains a very influential collection of essays on three core areas of rule of law debate: the philosophical concept, its relationship to the “war on terror,” and its role in state-building; part I, in particular, contains several major contributions, most notably Waldron’s.

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                  • Maravall, José María, and Adam Przeworski, eds. Democracy and the Rule of Law. New York: Cambridge University Press, 2003.

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                    A somewhat uneven, but still important, volume, this collects strategic approaches to the rule of law from political scientists and economists—recommended for those interested in, for example, game theory.

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                    • Marshall, David, ed. The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward. Cambridge, MA: Harvard University Press, 2014.

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                      This volume focuses on critical evaluations of the international rule of law development program; all chapters are important, although perhaps most important is that of Haider Ala Hamoudi.

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                      • McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press, 1997.

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                        This book is a collection of case studies organized around the theme of the rule of law in transitional democracies. It would be a stretch to insist that the studies have a consistent theme, but they are generally written by experts with deep knowledge in the relevant countries (in this respect, the Halmai and Scheppele chapter particularly stands out) and will be useful to scholars doing research on the rule of law in general as well as on the political transitions of those countries in particular.

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                        • Shapiro, Ian, ed. Nomos XXXVI: The Rule of Law. New York: New York University Press, 1994.

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                          This volume, too, contains a strong collection of contributions, in this case more focused on conceptual and normative questions related to the rule of law; particularly good are the Solum and Macedo chapters, and particularly interesting are the contributions from superstar political theorists who are not ordinarily considered rule of law scholars, Michael Walzer and Gerald Gaus.

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                          • Silkenat, James R., James E. Hickey Jr., and Peter D. Barenboim, eds. The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat). Berlin: Springer, 2014.

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                            Anyone working with the concept of the rule of law must at some point encounter the parallel literature on the German concept of “rechtsstaat,” which, depending on whom one reads, is identical to or wildly different from the rule of law. This collection of essays, while focused on an examination of the two concepts together, is not limited to that topic, and will provide both a good introduction to the two ideas as well as several important independent contributions (particularly those of Krygier and Allan).

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                            • Zurn, Michael, André Nollkaemper, and Randall Peerenboom, eds. Rule of Law Dynamics in an Era of International and Transnational Governance. Cambridge, UK: Cambridge University Press, 2012.

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                              This book also focuses on evaluating the international rule of law development program, although it is slightly more uneven than the Marshall volume. The editors attempt, not wholly successfully, to fit the overall work into a concept of “rule of law dynamics.” Most important is the Merkel essay, which sheds critical light on the problems of rule of law measurement.

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                              Foundational Works

                              This section collects the most often cited works on the rule of law. In the 20th century, it has often been associated with the political right and with objections to the welfare state and administrative law in general; Hayek 1960 and Hayek 1978 provide the intellectual foundations of this movement, while Oakeshott (Oakeshott 1999) has spun off a distinctive conservative conception of the rule of law all on his own. In less politicized circles, Fuller 1969 gives a set of criteria of “legality” that has become the default reference for nonspecialists, and many specialists, wishing a direct statement of what the rule of law is. Montesquieu 1989 and Aristotle 1996 provide two of the most important foundations of the concept in the history of political thought, and Dicey 1982 is the core work describing it in the history of legal thought. Fraenkel 1941 contributes the critically important idea of the “dual state,” which has become a canonical discussion of the way parts of the rule of law can appear in tyrannical states. Kant 1996 lays out the core (and widely accepted) idea of how the rule of law protects individual freedom.

                              • Aristotle. “The Politics.” In The Politics and the Constitution of Athens. Translated by Stephen Everson, 9–208. Cambridge, UK: Cambridge University Press, 1996.

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                                The origin of the notion of “rule of law.” Aristotle lays out the argument that a system in which law, not any one citizen, rules is suitable for a city of equals, and that in such a city officials are subordinate to legal rules.

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                                • Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. Edited by Roger E. Michener. Indianapolis, IN: Liberty Fund, 1982.

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                                  (Edition originally published 1885, cited text is reprint of 1915 edition.) The English common law tradition is often considered a core case of the rule of law; Dicey gives the canonical case for how English common law actually constitutes it.

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                                  • Fraenkel, Ernst. The Dual State: A Contribution to the Theory of Dictatorship. Translated by E. A. Shils. New York: Oxford University Press, 1941.

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                                    Fraenkel introduced the concept of the “dual state.” According to Fraenkel, states like Nazi Germany operated a “prerogative” state underneath a “normative” state: an ordinary-seeming legal apparatus under rules that resemble those of rule-of-law states and a layer of authority with the capacity to exercise arbitrary power to override legal rules. Fraenkel’s insight extends beyond Nazi Germany; in particular, it can apply to capitalist autocracies such as Pinochet’s Chile.

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                                    • Fuller, Lon L. The Morality of Law. Rev. ed. New Haven, CT, London: Yale University Press, 1969.

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                                      Fuller’s eight criteria of “legality,” given in this volume, while offered as a description of minimum conditions for a state to have a legal system at all, are very commonly cited as the canonical description of what it is to satisfy the rule of law.

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                                      • Hayek, Friedrich A. The Constitution of Liberty. Chicago: University of Chicago Press, 1960.

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                                        A highly influential (if flawed) book that gives a conception of the rule of law, a history of it, and an argument connecting it to individual liberty. The central work of the contemporary right-libertarian tradition on the subject.

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                                        • Hayek, Friedrich A. Law, Legislation and Liberty. Vol. 1, Rules and Order. Chicago: University of Chicago Press, 1978.

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                                          A follow-on work to The Constitution of Liberty, which gives a broader theory of law, markets, and democracy, and relates the rule of law to the common law tradition. Volume one (of this three-volume work) is the most relevant to the rule of law. On the whole, more interesting but less often cited than The Constitution of Liberty.

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                                          • Kant, Immanuel. “On the Common Saying: That May Be Correct in Theory but It Is of No Use in Practice.” In Immanuel Kant: Practical Philosophy. Translated by Mary Gregor, 273–310. New York: Cambridge University Press, 1996.

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                                            The second section of this 1793 essay has a foundational (yet accessible, unlike many of the same ideas in Kant’s Metaphysics of Morals) explication of many of the core ideas that have persisted in rule of law thought, in particular the idea of law as the coercive preservation of freedom among (formal) legal equals.

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                                            • Montesquieu, Charles de. The Spirit of the Laws. Translated by Anne M. Cohler, Basia C. Miller, and Harold Stone. Cambridge, UK: Cambridge University Press, 1989.

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                                              Widely discussed as a key early (1748) enlightenment liberal statement of the principles of the rule of law.

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                                              • Oakeshott, Michael. “The Rule of Law.” In On History and Other Essays. By Michael Oakeshott, 129–178. Indianapolis, IN: Liberty Fund, 1999.

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                                                A key text of the conservative conception of the rule of law. Not, however, appropriate for undergraduates, as it is extremely difficult to understand without a broader knowledge of Oakeshott’s distinctive political philosophy.

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                                                Philosophical Accounts

                                                Many philosophers and lawyers have tried to shed light on the concept of the rule of law through analytic, philosophical argument. This section highlights some of the more influential and important contributions to this conversation. An important component of this discussion has tracked the Hart-Fuller debate in legal philosophy (and, secondarily, the Hart-Dworkin debate); each position has generated a cluster of important works elucidating positivist and Fullerian approaches to the rule of law, which are broken out into subsections.

                                                Generally

                                                General philosophical questions surrounding the rule of law include whether it imposes merely formal requirements, as in Summers 1999, or strong substantive demands on legal systems, as in Dworkin 1986. Waldron 2002 asks whether the rule of law is an essentially contested concept. Habermas 1995 fits the rule of law into his own influential discourse theory of legitimation, while Shapiro 2011 fits it into his planning theory of the nature of law. Shklar 1998 offers a distinctive and influential take on the concept from the history of political thought, while Cohen 2010 and Schauer 1991 consider important modern questions, respectively, the role of reason-giving and the role of rules.

                                                • Cohen, Mathilde. “The Rule of Law as the Rule of Reasons.” Archiv fuer Rechts—und Sozialphilosphie 96.1 (2010): 1–16.

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                                                  An important paper arguing that the practice of reason-giving is central to any plausible conception of the rule of law. In particular, Cohen argues that it is inseparable from what she characterizes as the “procedural account” of the rule of law (which is more generally described as the standard “formal account”), and also a central method of achieving something like Dworkin’s “rights conception” of the rule of law, which she calls the “substantive account.”

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                                                  • Dworkin, Ronald. “Political Judges and the Rule of Law.” In A Matter of Principle. By Ronald Dworkin, 9–32. Cambridge, MA: Harvard University Press, 1986.

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                                                    This article is the source of the “rights conception” of the rule of law, a minority view according to which the rule of law is not merely a formal principle (that is, describing the form in which official power is to be used), but implies a package of substantive rights.

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                                                    • Habermas, Jürgen. “On the Internal Relation between the Rule of Law and Democracy.” European Journal of Philosophy 3.1 (1995): 12–20.

                                                      DOI: 10.1111/j.1468-0378.1995.tb00036.xSave Citation »Export Citation »E-mail Citation »

                                                      Habermas gives an overview of the intellectual terrain between what he calls a conflict between “public autonomy” and “private autonomy,” the former represented by popular sovereignty, and the latter by the rule of law (and human rights). Coming to understand his argument for the reconciliation of public and private autonomy will give the reader a solid introduction to (and impose on the reader who agrees some commitments from) Habermas’s general theory of legal and political legitimation.

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                                                      • Schauer, Frederick. “Rules and the Rule of Law.” Harvard Journal of Law and Public Policy 14 (1991): 645–694.

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                                                        A very important paper that attempts to clarify many of the conceptual questions surrounding the relationship between conceptual and normative constraints on legal systems, and the concept of a “rule” (Schauer has elsewhere made fundamental contributions to the more general theory of rules).

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                                                        • Shapiro, Scott J. Legality. Cambridge, MA: Harvard University Press, 2011.

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                                                          Legality is primarily an attempt to lay new foundations for conceptual analytic jurisprudence in terms of a theory of planning rooted in ideas like Michael Bratman’s contributions to philosophy of action. However, it concludes with an intriguing section on the rule of law that attempts to dissolve the Hart-Fuller debate by arguing that Fuller’s rule of law virtues (see Fuller 1969, cited under Foundational Works) are the virtues that enable effective social planning.

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                                                          • Shklar, Judith N. “Political Theory and the Rule of Law.” In Political Thought and Political Thinkers. Edited by Stanley Hoffmann, 21–37. Chicago: University of Chicago Press, 1998.

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                                                            A very influential essay on the rule of law rooted in the self-conscious standpoint of a “political theorist” (as contrasted to “political philosopher”). In that capacity, it offers a unique perspective in which Montesquieu and Aristotle are opposed as alternative paradigms of the rule of law, and a disappointed analysis of how the accounts of each have been deformed by the moderns.

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                                                            • Summers, Robert S. “Principles of the Rule of Law.” Notre Dame Law Review 74.5 (1999): 1691–1712.

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                                                              Summers is perhaps the firmest advocate of a wholeheartedly formal conception of the rule of law; this article gives a full account of that conception.

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                                                              • Waldron, Jeremy. “Is the Rule of Law an Essentially Contested Concept (In Florida)?” Law and Philosophy 21.2 (1 March 2002): 137–164.

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                                                                A defense (interestingly, with respect to the Bush v. Gore Supreme Court decision about the contested 2000 US presidential election) of the proposition that the rule of law is an “essentially contested concept”—yet meaningful for all that. Also helpfully reviews the intellectual history of tension between the rule of law and the notions of sovereignty (popular or otherwise) and discretion.

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                                                                The Rule of Law and Legal Positivism

                                                                Positivism is the dominant theoretical framework in Anglo-American analytic conceptual jurisprudence, and so a number of scholars have attempted to give accounts of the relationship between the rule of law and positivism. Hart 1958 lays the foundation for positivist analyses of the rule of law. Raz 1979 is the most prominent positivist with a distinctive conception of what the rule of law is. Lovett 2002 and Sevel 2009 attempt to give clear explanations of the relationship between positivism and the rule of law. Kramer 2007 and Marmor 2007 both address the rule of law as part of a cluster of other significant jurisprudential questions surrounding positivism and its competitors.

                                                                • Hart, H. L. A. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71.4 (1958): 593–629.

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                                                                  In 20th-century debates about the relationship between law and morality, the issue of laws that commanded unjust results often arose. Hart’s lucid discussion of a case in which it would be preferable to pass a retroactive law, rather than pretend that a statute authorizing Nazi denunciations was not law due to its injustice, established the terrain on which subsequent debate about matters such as the obligatory nature of state compliance with legal principles was set.

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                                                                  • Kramer, Matthew. Objectivity and the Rule of Law. New York: Cambridge University Press, 2007.

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                                                                    An important work from a leading positivist legal philosopher, this book covers a number of other major jurisprudential questions, but is relevant here for its careful discussion of the proposition that a state might have rules of law without having, in some morally meaningful sense, the rule of law.

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                                                                    • Lovett, Frank. “A Positivist Account of the Rule of Law.” Law & Social Inquiry 27.1 (2002): 41–78.

                                                                      DOI: 10.1111/j.1747-4469.2002.tb01107.xSave Citation »Export Citation »E-mail Citation »

                                                                      Lovett argues for the proposition that satisfaction of the normative ideals associated with the rule of law is necessary, at least to some degree, in order to satisfy the demarcation criteria for identifying a legal system (I will hereafter call this the conceptual entwinement thesis); he does so, moreover, not from vaguely natural law or generally antipositivist accounts of conceptual jurisprudence (as is standard), but from an explicitly positivist position.

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                                                                      • Marmor, Andrei. “The Rule of Law and Its Limits.” In Law in the Age of Pluralism. By Andrei Marmor, 3–38. New York: Oxford University Press, 2007.

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                                                                        Marmor attempts to disconnect the question about the relationship between the rule of law and the having of laws from the debate over legal positivism. In many ways, this chapter is a sort of romp over the whole philosophical territory, which resists capsule summary, but ultimately Marmor resists both a full-fledged identification of the rule of law with law itself and a full-fledged understanding of the rule of law as an unproblematic moral ideal.

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                                                                        • Raz, Joseph. “The Rule of Law and Its Virtue.” In The Authority of Law: Essays on Law and Morality. By Joseph Raz, 210–229. New York: Oxford University Press, 1979.

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                                                                          This small paper is widely cited as a leading example of skeptical approaches to the moral importance of the rule of law. In Raz’s account, the rule of law is primarily what we might call a relative or functional virtue of law—a law is a better law to the extent it comports with the rule of law, just like a knife is better as a knife to the extent it is sharper—but this judgment does not bear on the overall moral evaluation of the idea. A sharp knife can be used to stab people; a very well designed and operated law can be used to oppress. That being said, it’s easy to read too extreme a position into Raz; he does grant important independent value to the rule of law, in the sense that it has the capacity to restrain some of the evils that law might otherwise do, particularly to human dignity.

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                                                                          • Sevel, Michael. “Legal Positivism and the Rule of Law.” Australian Journal of Legal Philosophy 34 (2009): 53–68.

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                                                                            Similar to Lovett, Sevel defends the conceptual entwinement thesis from a positivist standpoint, albeit not in virtue of the characteristics of legal systems as such; rather, Sevel interestingly argues that the Fullerian normative criteria of legality that are usually offered under the title “the rule of law” are necessary conditions of rule-based normative systems in general.

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                                                                            Egalitarian and Democratic Approaches

                                                                            The standard conception of the moral value of the rule of law, associated with Hayek (see Foundational Works) and many others, is that the rule of law is valuable primarily because of its relationship to liberty in a political state. A number of theorists have offered alternative egalitarian or democratic conceptions. Gowder 2016 (cited under General Overviews) focuses purely on equality and offers an account of the rule of law according to which it preserves equal status in a state, while Allan 2001 and Brudner 2004 offer important interpretations of the concept that understand it as an important component of a distinctively egalitarian liberal democratic constitutional order.

                                                                            • Allan, T. R. S. Constitutional Justice: A Liberal Theory of the Rule of Law. New York: Oxford University Press, 2001.

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                                                                              Allan gives an account of the rule of law as a distinctive moral virtue of constitutional liberal democracies. This account entails a conception of the rule of law as demanding laws consistent with the substantive equality of citizens.

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                                                                              • Brudner, Alan. Constitutional Goods. New York: Oxford University Press, 2004.

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                                                                                Brudner lays out another liberal-democratic conception of the rule of law. His account is rather more aggressively Hegelian than the others in this list, and covers far more theoretical territory: it’s really an attempt to give an entire account of political normativity, but it’s one in which rule of law ideas play a central role, and the book is to be recommended to rule of law scholars for that reason alone.

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                                                                                Fullerian Approaches

                                                                                Lon Fuller’s eight principles of legality are often taken to be the canonical statement of the requirements of the rule of law; moreover, his general argument in The Morality of Law can be read as a defense of the moral value of the rule of law as well. For this reason, there are also a number of Fuller-inspired works that draw a connection between the rule of law and a state’s having the rule of law at all; such works may be seen as counterpoises to the positivist works. Murphy 2005 and Rundle 2012 give important readings of Fuller’s ideas of reciprocity and autonomy; Simmonds 2007 uses the rule of law to defend the Fullerian proposition that law itself carries moral value, while Waldron 2008 similarly defends the identification between the rule of law and law itself. Postema 2015 gives an ambitious new conception of reciprocity that leads to the idea of a society regulated by a legal ethos.

                                                                                • Murphy, Colleen. “Lon Fuller and the Moral Value of the Rule of Law.” Law and Philosophy 24.3 (2005): 239–262.

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                                                                                  Murphy defends an interpretation of Fuller according to which the rule of law is morally valuable in terms of the ideals of “reciprocity” (the state demands obedience from citizens only in virtue of fulfilling its end of the bargain) and “respect for autonomy” (the state recognizes the capacity of its citizens to follow the rules).

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                                                                                  • Postema, Gerald. “Fidelity in Law’s Commonwealth.” In Private Law and the Rule of Law. Edited by Lisa M. Austin and Dennis Klimchuk, 17–40. Oxford: Oxford University Press, 2015.

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                                                                                    Postema offers an argument that is closely tied to the Fullerian conception of reciprocity, although more in Murphy’s sense than in Rundle’s: the core claim is that the rule of law is achieved by reciprocal fidelity to law—officials to bound their use of authority by it, and citizens to structure their affairs by it; in that way it constrains both public and private power and establishes what Postema calls an “ethos” of law.

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                                                                                    • Rundle, Kristen. Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller. Oxford: Hart, 2012.

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                                                                                      Rundle focuses on the same two broad ideas of reciprocity and autonomy in Fuller’s thought as does Murphy, but where Murphy’s reading of those ideas focuses on the relationships legal systems form within a political state, Rundle’s focuses on a conception of the individual agent that she sees in Fuller: the agent whose autonomy is to be respected is acting as a participant in the legal system, co-creating a legal order with the state, and it is that act of co-creation that represents the Fullerian ideal of autonomy.

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                                                                                      • Simmonds, Nigel. Law as a Moral Idea. Oxford: Oxford University Press, 2007.

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                                                                                        Simmonds offers a defense of the connection between a state’s having law and its having the rule of law. The essential claim is that there is an essentially moral “archetype” of law, which is captured by rule of law ideals, and to which real-world legal systems are more-or-less closely approximate.

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                                                                                        • Waldron, Jeremy. “The Concept and the Rule of Law.” Georgia Law Review 43.1 (2008): 1–62.

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                                                                                          Waldron defends a series of Fuller-inspired properties of law that he associates both with the claim that these properties are also rule of law demands and with the claim that they are moral virtues of law; thereby he offers an argument both for the internal morality of law in something like Fuller’s sense and a connection between law and the rule of law.

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                                                                                          The Rule of Law and the Left

                                                                                          The rule of law is often associated with the political right, both in the classical tradition (e.g., Hayek) and in contemporary politics (e.g., the economic development and liberalization policies of the World Bank). Perhaps unsurprisingly, it has been widely criticized from the political left, with many scholars, particularly in the Marxist tradition, alleging that it represents an unacceptably individualistic and capitalistic conception of rights and constraints on the state. Thompson 1975 is the leading defense of the rule of law from a left-wing perspective, and Horowitz 1977 is considered a canonical response. Other important Marxist critiques of the rule of law include Fine 1984 and Pashukanis 2002. Bell 1992 offers a root and branch critique of the idea of race-neutrality in law. Feminists have also criticized the rule of law, MacKinnon 1991 is an important representative of this strain of thought, and Lacey 1998 subjects it to extensive analysis. Crenshaw 1989 develops a black feminist intersectional critique of legal neutrality. Finally, several scholars have proposed left-reimaginings of the rule of law to better pursue egalitarian and progressive goals; among the most interesting are West 2003 and Ramirez 2013.

                                                                                          • Bell, Derrick. “Racial Realism.” Connecticut Law Review 24.2 (1992): 363–379.

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                                                                                            A foundational source for the critical race theory rejection of the idea of race neutrality in the law. Bell argues that biased judges abuse rule of law ideals of racial neutrality, and that in consequence “abstract principles lead to legal results that harm blacks and perpetuate their inferior status.” In consequence, he proposed the abandonment of the formalist approach to legal reasoning, “liberal civil rights theory,” and “the ideology of racial equality.”

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                                                                                            • Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum 1 (1989): 139–167.

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                                                                                              This is a key article in the movement to urge a recognition of intersectional identities in not only political discourse, but also in the antidiscrimination principles central to modern constitutional legal systems as well as the rule of law. Crenshaw argues that the experiences of black women must be incorporated directly into legal theory as such, rather than as instances of the more general cases of the experiences of women and the experiences of African Americans.

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                                                                                              • Fine, Robert. Democracy and the Rule of Law: Marx’s Critique of the Legal Form. London: Pluto, 1984.

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                                                                                                A leading account of the late Marx’s own views on the rule of law and the then-contemporary Marxist debate, this is a good starting point for those seeking to approach the Marxist critique.

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                                                                                                • Horowitz, Morton. “The Rule of Law: An Unqualified Human Good?” Yale Law Journal 86 (1977): 561–566.

                                                                                                  DOI: 10.2307/795801Save Citation »Export Citation »E-mail Citation »

                                                                                                  This short review of Thompson is the canonical brief statement of the left critique of the rule of law: that it impedes the pursuit of overall justice and reifies an ideology of formal equality.

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                                                                                                  • Lacey, Nicola. Unspeakable Subjects: Feminist Essays in Legal and Social Theory. Oxford: Hart, 1998.

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                                                                                                    Lacey explores the “difference feminist” rather than the “liberal feminist” approach to legal theory. Of particular interest for rule of law scholars is chapter seven, which offers a deeply insightful internal analysis of the relationship between feminist theory and the liberal rule of law ideal of neutrality.

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                                                                                                    • MacKinnon, Catharine A. “Reflections on Sex Equality under Law.” Yale Law Journal 100.5 (1991): 1281–1328.

                                                                                                      DOI: 10.2307/796693Save Citation »Export Citation »E-mail Citation »

                                                                                                      This is primarily a critique of the notion of formally equal treatment of men and women, which is framed in terms of the US Constitution’s Equal Protection Clause, but which applies in similar terms to the rule of law notion of general law. In MacKinnon’s words, against the Aristotelian idea of “treating likes alike,” “[s]ince men defined women as different to the extent they are female, can women be entitled to equal treatment only to the extent they are not women?” In its place MacKinnon proposes a more aggressive legal pursuit of genuine legal equality that does not ignore preexisting social injustice.

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                                                                                                      • Marx, Karl. “Comments on the Latest Prussian Censorship Instruction.” In Writings of the Young Marx on Philosophy and Society. Translated by Loyd D. Easton and Kurt H. Guddat, 67. Garden City, NY: Doubleday, 1967.

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                                                                                                        In view of the fact that Marxism is often placed in opposition to the rule of law, and that Marxists commonly reject it, it may surprise the reader to learn of this quite early essay from Marx, in which he hotly criticizes the actions of the Prussian government in terms of a robust conception of the rule of law. His key critique was that the censorship instruction lacked “objective norms,” and as a result was “a law of a party against another party,” rather than a neutral and equal legal norm.

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                                                                                                        • Pashukanis, Evgeny Bronislavovich. The General Theory of Law and Marxism. Translated by Barbara Einhorn. Edited by Chris Arthur. New Brunswick, NJ: Transaction Publishers, 2002.

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                                                                                                          Giving by far the most radical rejection of the rule of law, Pashukanis, an early Soviet legal scholar, argued that the state’s response to crime should be a pure matter of expedient policy, countenancing “the mechanical elimination of the dangerous individual” by officials. Perhaps fittingly, Pashukanis was subject to just such treatment at the hands of Stalin in 1937.

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                                                                                                          • Ramirez, Steven A. Lawless Capitalism: The Subprime Crisis and the Case for an Economic Rule of Law. New York: New York University Press, 2013.

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                                                                                                            Ramirez adapts the ideals of the rule of law to a thoroughly modern critique of contemporary big-business capitalism. On his argument, instead of regulating the powerful, American legal institutions were corrupted, contrary to rule of law values, to permit and even to facilitate concentrated economic power, leading to the global economic crisis of the early 21st century.

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                                                                                                            • Thompson, E. P. Whigs and Hunters: The Origin of the Black Act. London: Allen Lane, 1975.

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                                                                                                              This volume contains the classic statement of the left-wing defense of the rule of law. Thompson, a Marxist historian, argues that the rule of law impedes oppression by forcing the powerful to operate under the logic of justification rather than of brute force or manipulation, and that accordingly, it cannot purely function as an ideology in the Marxist sense.

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                                                                                                              • West, Robin L. Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law. Burlington, VT: Ashgate, 2003.

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                                                                                                                As the title suggests, West’s book is a project to give new conceptions of the three interrelated ideas of formal equality, rights, and the rule of law—conceptions more suitable to the pursuit of progressive ideals of social justice than their predecessors. In doing so, she advances a self-consciously “political” rule of law, one that does not pretend to a kind of legal neutrality that allegedly carves out a sphere of private right apart from political action.

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                                                                                                                Relationship to the Idea of Rechtsstaat

                                                                                                                The German legal tradition contains a concept known as rechtsstaat, which is often compared to the more Anglo-American idea of the rule of law. Krygier 2014 and Rosenfeld 2001 offer helpful introductions to the difference between those two concepts, while Dyzenhaus 1999 offers a broader explication and analysis of the German legal thought providing the foundational ideas for the concept.

                                                                                                                • Dyzenhaus, David. Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar. Oxford: Oxford University Press, 1999.

                                                                                                                  DOI: 10.1093/acprof:oso/9780198298465.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                  Dyzenhaus here combines an expert exegesis of Schmitt and Kelsen with a very useful introduction to Heller, who is significantly less widely read. This book will be helpful for any seeking an introduction to the early-20th-century German side of rule of law thought and its relationship to sovereignty, as well as to contemporary liberal theory.

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                                                                                                                  • Krygier, Martin. “Rule of Law and Rechtsstaat.” In The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat). Edited by James R. Silkenat, James E. Hickey Jr., and Peter D. Barenboim, 45–49. Berlin: Springer, 2014.

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                                                                                                                    Krygier gives a detailed comparative conceptual analysis of both the idea of rule of law and that of rechtsstaat. An essential work for understanding the intellectual territory.

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                                                                                                                    • Rosenfeld, Michael. “The Rule of Law and the Legitimacy of Constitutional Democracy.” Southern California Law Review 74 (2001): 1307–1352.

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                                                                                                                      In addition to the Anglo-American “rule of law” and the German “rechtsstaat,” Rosenfeld also considers a French concept by the name of “etat de droit.” Each is given in historical context, with a very helpful discussion of the development of the respective modern idea.

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                                                                                                                      Empirical Questions

                                                                                                                      Many theorists believe that the rule of law contributes to economic development, largely on the idea that it promotes stable property and contract rights that reduce the risk of investment. However, empirical testing of this claim as well as empirical validation of efforts to promote it are vexed by measurement difficulties. The critiques cover a very broad territory, and include problems with conceptualization and construct validity, measurement error, political bias, the failure to distinguish between de jure and de facto legal rules, and inconsistent data collection. The broadest critical overviews are Ginsburg 2011 and Skaaning 2010. Davis 2004 criticizes a number of measures for their inclusion of observations that appear to be unrelated to the legal system. Ohnesorge 2007 and Haggard, et al. 2008 contextualize measurement issues in the development literature.

                                                                                                                      • Davis, Kevin E. “What Can the Rule of Law Variable Tell Us about Rule of Law Reforms?” Michigan Journal of International Law 26 (2004): 141–161.

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                                                                                                                        Davis criticizes a number of existing rule of law measures, primarily for their failure to clearly distinguish legal from non-legal observations (where, for Davis, “legal” appears to mean something like the formal juridical system). He argues that as a result policy work on the rule of law and development suffers from a shortage of empirical validation.

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                                                                                                                        • Ginsburg, Tom. “Pitfalls of Measuring the Rule of Law.” Hague Journal on the Rule of Law 3 (2011): 269–280.

                                                                                                                          DOI: 10.1017/S187640451120006XSave Citation »Export Citation »E-mail Citation »

                                                                                                                          A leading empirical public law scholar, Ginsburg provides a high-level overview of existing problems in rule of law research, including primarily problems with conceptualization and with measurement strategies. Most interestingly, Ginsburg also identifies a potential problem with feedback effects: in view of the likelihood that the rule of law is in part dependent on citizen confidence that their fellows and officials are committed to it, measuring and publicizing the results with respect to states that do poorly in that respect may actually make matters worse in those states.

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                                                                                                                          • Haggard, Stephan, Andrew MacIntyre, and Lydia Tiede. “The Rule of Law and Economic Development.” Annual Review of Political Science 11 (2008): 205–234.

                                                                                                                            DOI: 10.1146/annurev.polisci.10.081205.100244Save Citation »Export Citation »E-mail Citation »

                                                                                                                            The authors review the rule of law development literature, focusing on the relationship between the rule of law and economic development, formal versus informal institutions, and property rights. However, this review has also been widely cited for its critique at the end of existing rule of law measures, which the authors find are poorly correlated both with one another and with the institutions that are often thought to be important to the rule of law.

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                                                                                                                            • Ohnesorge, John. “The Rule of Law.” Annual Review of Law and Social Science 207 (2007): 99–114.

                                                                                                                              DOI: 10.1146/annurev.lawsocsci.3.011207.080748Save Citation »Export Citation »E-mail Citation »

                                                                                                                              This review focuses on the development literature, and the rhetorical disjunction between ideas of rule of law propagated by “international financial institutions” such as the World Bank (including in their measurement instruments) and those by other scholars.

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                                                                                                                              • Skaaning, Svend-Erik. “Measuring the Rule of Law.” Political Research Quarterly 63.2 (2010): 449–460.

                                                                                                                                DOI: 10.1177/1065912909346745Save Citation »Export Citation »E-mail Citation »

                                                                                                                                Skaaning provides a careful overview and critique of a number of indices that are often thought to measure the rule of law, reviewing their coverage, their conceptual ambitions, and their measurement strategies. As a whole, Skaaning’s conclusions are highly critical of existing tools.

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                                                                                                                                Specific Data Sets

                                                                                                                                There are a number of attempts to measure the rule of law, many of which have been summarized in the Empirical Questions section. However, there has been particular debate about the World Bank’s Worldwide Governance Indicators (WGI), which are perhaps most prominent. Kaufmann, et al. 2011 presents the methodology of those indicators as well as some statistical validation of the same. Thomas 2009 and Krever 2013 offer important critiques of it. Saisana and Saltelli 2012 describes the methodological underpinnings of a prominent alternative measure, that of the World Justice Project. Nardulli, et al. 2013 creates a novel new measure focusing on de jure constitutional text and legal periodicals.

                                                                                                                                • Kaufmann, Daniel, Aart Kraay, and Massimo Mastruzzi. “The Worldwide Governance Indicators: Methodology and Analytical Issues.” Hague Journal on the Rule of Law 3.2 (2011): 220–246.

                                                                                                                                  DOI: 10.1017/S1876404511200046Save Citation »Export Citation »E-mail Citation »

                                                                                                                                  The World Bank’s Worldwide Governance Indicators (WGI) include probably the most widely used as well as widely criticized rule of law measure. This paper describes its basic methodological foundation. The same authors also have a number of papers directly engaging with the numerous critics of the WGI, particularly Thomas’s critique; the entire dialectic is critically important to those who would engage with the measurement literature.

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                                                                                                                                  • Krever, Tor. “Quantifying Law: Legal Indicator Projects and the Reproduction of Neoliberal Common Sense.” Third World Quarterly 34.1 (2013): 131–150.

                                                                                                                                    DOI: 10.1080/01436597.2012.755014Save Citation »Export Citation »E-mail Citation »

                                                                                                                                    Krever argues that the WGI measures are biased in favor of a “neoliberal” conception of law and development, in view of their strong emphasis on measurements relating to the legal protection of private business, property rights, contracts, and other commercial and economic interests. Krever also presents evidence suggesting that these measures are used as performance standards by international development actors, and have for that reason exercised a biased influence on the policy of recipient countries.

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                                                                                                                                    • Nardulli, Peter F., Buddy Peyton, and Joseph Bajjalieh. “Conceptualizing and Measuring Rule of Law Constructs, 1850–2010.” Journal of Law and Courts 1.1 (2013): 139–192.

                                                                                                                                      DOI: 10.1086/668543Save Citation »Export Citation »E-mail Citation »

                                                                                                                                      This recent paper offers a particularly novel two-part rule of law measure, focusing on (1) the extent of de jure legal rights protections in a country’s constitution, and (2) the extent of a country’s field of legal periodicals (as a rough proxy for general lawyerly activity). There is some reason to be skeptical of the construct validity of the measure, as purely de jure measures as well of measures of lawyerly activity are likely to misclassify states that have sham or hypocritical legal systems (such as the Soviet Union); nonetheless, the scale they offer has the distinct interpretive advantage of being unidimensional, and ought to be included in any evaluation of competing rule of law measures, as well as a reliability check on empirical claims made using other measures.

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                                                                                                                                      • Saisana, Michela, and Andrea Saltelli. “Statistical Audit.” European Commission Joint Research Centre (Ispra, Italy), 2012.

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                                                                                                                                        Reports the results of a statistical study of the factors used by the World Justice Project (WJP), the leading alternative to the WGI for rule of law measurement. The WJP is based on a substantial multi-year data collection effort of individual as well as expert surveys, and reports eight rule of law factors. Notably, the report reveals that there is a single latent factor that accounts for some 81 percent of the variance of the WJP’s scale, although the WJP nonetheless chooses to disaggregate it into eight factors.

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                                                                                                                                        • Thomas, M. A. “What Do the Worldwide Governance Indicators Measure?” European Journal of Development Research 22 (2009): 31–54.

                                                                                                                                          DOI: 10.1057/ejdr.2009.32Save Citation »Export Citation »E-mail Citation »

                                                                                                                                          This paper is a sustained and important attack on the WGI measures. Thomas argues that there is no evidence that the WGI meet basic standards of construct validity (i.e., to be rooted in the theoretical understanding of the things they’re supposed to be measuring); thus, they are nothing more than “an elaborate and unsupported hypothesis.”

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                                                                                                                                          Critical Approaches to International Development

                                                                                                                                          Much effort and money has been spent on international rule of law development, and the enterprise has drawn significant scholarly scrutiny. One line of criticism, typified by Mattei 2003, contends that Western “developed” liberal democracies inappropriately assume that only their style of institution constitutes a legal system; outside of the specific rule of law context the most prominent example of this kind of approach is Ruskola 2002. Other critiques focus on specific abuses in the development enterprise related to over-eagerness to promote a specific vision of the rule of law (Tamanaha 2008, Krygier 2006).

                                                                                                                                          • Krygier, Martin. “The Rule of Law: An Abuser’s Guide.” In Abuse: The Dark Side of Fundamental Rights. Edited by András Sajó, 129–161. Utrecht, The Netherlands: Eleven International Publishing, 2006.

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                                                                                                                                            This paper examines a multitude of ways in which rule of law ideas, or the rule of law itself, might be misused to do harm. The most important examples of such “abuse,” and the reason this paper is included under the present heading, relate to misguided but well-intentioned attempts (often by those in the anti-corruption movement) to promote it in ways that may turn out to pose more of a danger than a help to the states subjected to such promotion.

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                                                                                                                                            • Mattei, Ugo. “A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance.” Indiana Journal of Global Legal Studies 10.1 (2003): 383–448.

                                                                                                                                              DOI: 10.2979/GLS.2003.10.1.383Save Citation »Export Citation »E-mail Citation »

                                                                                                                                              This is a radical critique of what Mattei calls “imperial law,” or the use of democracy and the rule of law as a “rhetoric of legitimation” of the international power of, primarily, global capital and the powerful states such as the United States that benefit from it. While Mattei will not be convincing anyone in the rule of law development community to abandon their projects any time soon, his work represents an important set of challenges to the entire enterprise that should not simply be ignored.

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                                                                                                                                              • Ruskola, Teemu. “Legal Orientalism.” Michigan Law Review 101.1 (2002): 179–234.

                                                                                                                                                DOI: 10.2307/1290419Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                Ruskola has an influential critique of, as the article’s title suggests, “legal orientalism,” a concept derived from Said’s Orientalism, which, in the legal context in particular, can be understood as a culturally biased perception of non-Western legal systems that at an extreme denies that those systems are legal at all. While Ruskola’s account particularly focuses on Western perception of the Chinese legal system, it may be applied more generally, and bears a close resemblance to what Mattei 2003 has described as “de-legalization”; these practices of orientalism and de-legalization are a common theme of Western rule of law development efforts that may be accused of attempting, because of these prejudices, to inappropriately supplant local legal institutions with those of the Western states.

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                                                                                                                                                • Tamanaha, Brian. “The Dark Side of the Relationship between the Rule of Law and Liberalism.” New York University Journal of Law & Liberty 3 (2008): 516–547.

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                                                                                                                                                  Tamanaha diagnoses a collection of problems relating primarily to the international rule of law development: the rule of law is sometimes used as a tool to override democratic political autonomy, particularly relating to economic ordering, in its guise as the demand for protection of property rights.

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                                                                                                                                                  The Question of “Bottom-Up” Development and Legal Pluralism

                                                                                                                                                  A number of scholars, particularly those associated with the Carnegie Endowment for International Peace (in addition to Upham 2002, readers are encouraged to consult the work of Rachel Kleinfeld and Thomas Carothers), have defended what has come to be known as a “bottom-up” rule of law development strategy that focused on informal legal systems and decentralized methods of dispute resolution. Van Rooij 2012 criticizes those approaches for being insufficiently substantiated by empirical evidence. Grenfell 2013 gives an important recent discussion supported by on-the-ground case studies. Tamanaha 2011 offers a usefully evenhanded discussion of the relationship between the rule of law and informal parallel legal institutions.

                                                                                                                                                  • Grenfell, Laura. Promoting the Rule of Law in Post-Conflict States. New York: Cambridge University Press, 2013.

                                                                                                                                                    DOI: 10.1017/CBO9781139206945Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                    A novel approach to the questions of legal pluralism and the rule of law that focuses on two in-depth case studies: South Africa and Timor-Leste.

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                                                                                                                                                    • Tamanaha, Brian. “The Rule of Law and Legal Pluralism in Development.” Hague Journal on the Rule of Law 3.1 (2011): 1–17.

                                                                                                                                                      DOI: 10.1017/S1876404511100019Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                      Tamanaha considers, as the title of this paper suggests, the question of “legal pluralism”—the idea that multiple norm systems and/or institutional enforcement structures can coexist in a single community—and its relationship to the rule of law. He provides an evenhanded assessment of both the promises and dangers of seeking the rule of law in pluralist and informal legal arrangements.

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                                                                                                                                                      • Upham, Frank. “Mythmaking in the Rule of Law Orthodoxy.” Carnegie Endowment for International Peace. Rule of Law Series 30 (2002).

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                                                                                                                                                        Upham argues against the identification of the rule of law, particularly in the developing world, with what he calls “formalist legal regimes,” which maintain a strict independence between law and politics; he further argues that even countries identified as “developed” lack such regimes. Attempts by development professionals to create judiciaries insulated from political forces are, he argues, unlikely to succeed and may not even be desirable in the first place.

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                                                                                                                                                        • van Rooij, Benjamin. “Bringing Justice to the Poor, Bottom-Up Approaches to Legal Development Cooperation.” Hague Journal on Rule of Law 4.2 (2012): 286–318.

                                                                                                                                                          DOI: 10.1017/S1876404512000176Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                          Van Rooij offers an important critique of the “bottom-up” rule of law development movement, arguing that while bottom-up development techniques may be useful, the empirical evidence for their efficaciousness is as yet insufficient to counsel replacing more conventional “top-down” approaches.

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                                                                                                                                                          The Rule of Law in Specific States

                                                                                                                                                          A number of studies have been written about the rule of law in individual states of particular scholarly importance, either to legal historians or to contemporary scholars, particularly those concerned with development and transitional justice. This article cannot survey the field as a whole but merely highlights a few salient examples: Harris 2013, Lanni 2009, and Gowder 2014 represent a very active recent debate about the rule of law in Classical Athens, Cass 2001 and Scalia 1989 represent prominent attempts to understand the US judicial system in rule of law terms, and Turner 1992 is an outstanding historical approach to the rule of law in the early Chinese legal tradition. Feldman 2008 includes an excellent account of the place of rule of law ideals in Islamic legal history. Dyzenhaus 2010 explicates foundational questions about the rule of law and the conflict between law and justice in the context of the South African struggles over apartheid. Dicey 1982 (cited under Foundational Works), of course, is a canonical statement of the rule of law in the British tradition.

                                                                                                                                                          • Cass, Ronald A. The Rule of Law in America. Baltimore: Johns Hopkins University Press, 2001.

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                                                                                                                                                            This highly accessible book discusses critiques of American judicial culture in rule of law terms and culminates with a defense of the proposition that American judges on the whole tend to respect the law. It also provides a very helpful introduction to the rule of law literature and the general conceptual questions, suitable for nonspecialists.

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                                                                                                                                                            • Dyzenhaus, David. Hard Cases in Wicked Legal Systems: Pathologies of Legality. 2d ed. New York: Oxford University Press, 2010.

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                                                                                                                                                              Dyzenhaus takes the crime of apartheid in South Africa as a case study to explore the conflict between positivist and non-positivist conceptions of law and, of particular interest, the extent to which judges may wield rule of law values even against the legislation of supreme legislators.

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                                                                                                                                                              • Feldman, Noah. The Rise and Fall of the Islamic State. Princeton, NJ: Princeton University Press, 2008.

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                                                                                                                                                                Feldman gives a history of the traditional Islamic legal system, drawing out how through much of its history Sharia and the legal scholars who interpreted it operated as an important constraint on the power of rulers.

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                                                                                                                                                                • Gowder, Paul. “Democracy, Solidarity, and the Rule of Law: Lessons from Athens.” Buffalo Law Review 62.1 (2014): 1–67.

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                                                                                                                                                                  Gowder argues that Athens largely satisfied the ideals of the rule of law. His approach, unlike that of (for example) Harris, is less historical than conceptual: largely accepting the historical claims of scholars such as Lanni about matters such as the relationship between legal and social norms in Athens, he nonetheless argues that those facts constitute a recognizable instantiation of rule of law values.

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                                                                                                                                                                  • Harris, Edward. The Rule of Law in Action in Democratic Athens. Oxford: Oxford University Press, 2013.

                                                                                                                                                                    DOI: 10.1093/acprof:oso/9780199899166.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                    Harris argues that, contra to most historians, Classical Athens satisfied the demands of the rule of law. It is important for the nonspecialist reader to note that Harris’s work is somewhat controversial among classicists, and he has sometimes been accused of making overly strong claims about the strength of the evidence for his arguments. Those reservations aside, he has done extremely comprehensive work in this area, and this book remains very valuable for understanding the argument that Athens satisfied the rule of law.

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                                                                                                                                                                    • Lanni, Adriaan. “Social Norms in the Courts of Ancient Athens.” Journal of Legal Analysis 1.2 (2009): 691–736.

                                                                                                                                                                      DOI: 10.1093/jla/1.2.691Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                      Lanni is the leading scholar who argues that Athens lacked the rule of law; readers are recommended to look beyond this article to several others of hers for a full presentation of the argument. This is a fair summary of its central claim, viz, that Athenians enforced social norms rather than formal laws.

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                                                                                                                                                                      • Scalia, Antonin. “The Rule of Law as a Law of Rules.” University of Chicago Law Review 56 (1989): 1175–1188.

                                                                                                                                                                        DOI: 10.2307/1599672Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                        Possibly Justice Scalia’s most well-regarded publication, this article gives a judicial philosophy for an American jurist in the form of an analysis of the rule of law. The key claim is that judges should aim to state, and to follow, as far as possible determinate rules rather than context-sensitive and fact-based inquiries, because the latter leave an uncomfortably large scope for discretion, contrary to rule of law ideals.

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                                                                                                                                                                        • Turner, Karen. “Rule of Law Ideals in Early China?” Journal of Chinese Law 6.1 (1992): 1–44.

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                                                                                                                                                                          There are many publications about the rule of law in contemporary China, and this article cannot provide an adequate sampling to aid the reader in entering that literature. However, the literature on the historical context is less saturated, and Turner’s paper is a fascinating review of the relationship between early Chinese legal scholars and rule of law ideas.

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                                                                                                                                                                          Strategic Accounts

                                                                                                                                                                          Another important area of rule of law scholarship focuses on the strategic conditions (sometimes described in terms of “microfoundations”) of the possibility of rule of law states: given that rulers and executive officials tend to control things like armies, what needs to be the case to allow others to keep them bound to law? De Lara, et al. 2008 argues that the power of mid-level officials can do the trick, while Hadfield and Weingast 2014 gives conditions for when mass or elite-led decentralized enforcement can work. Ferejohn 1999 takes on the closely related question of how judges can maintain their independence.

                                                                                                                                                                          • De Lara, Yadira Gonzalez, Avner Greif, and Saumitra Jha. “The Administrative Foundations of Self-Enforcing Constitutions.” American Economic Review 98.2 (2008): 105–109.

                                                                                                                                                                            DOI: 10.1257/aer.98.2.105Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                            A distinct approach to explaining why powerful officials find themselves constrained to obey the law; De Lara and colleagues focus on administrative power, understood as the capacity for mid-level officials, nobles, etc. to either impede or facilitate the achievement of the policy goals of top-level rulers. (For a simplified example, consider the case of a commander who refuses to order her troops to fire on the protesters.)

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                                                                                                                                                                            • Ferejohn, John. “Independent Judges, Dependent Judiciary: Explaining Judicial Independence.” Southern California Law Review 72 (1999): 353–384.

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                                                                                                                                                                              Ferejohn offers a canonical statement of one popular school of explanation for why judges in the United States, and potentially other countries, are more-or-less independent from and more-or-less effective at exerting their will over, more powerful branches: in general, judicial action tends to track popular preferences.

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                                                                                                                                                                              • Hadfield, Gillian, and Barry Weingast. “Microfoundations of the Rule of Law.” Annual Review of Political Science 17 (2014): 21–42.

                                                                                                                                                                                DOI: 10.1146/annurev-polisci-100711-135226Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                A broad and general literature review of the work relating to the strategic preconditions of states under the rule of law as well as other schools of social scientific account. The authors further reference their own work on decentralized enforcement as a mechanism for establishing legal compliance. Highly recommended for those new to the field both for the high-level overview of the various schools of thought as well as for the pathway into other important work by Hadfield and Weingast on the subject.

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                                                                                                                                                                                The Rule of Law and Administrative Law

                                                                                                                                                                                One of the classic claims of rule of law scholars is that it is incompatible with administrative law. This shows up very prominently, for example, in Hayek (see Foundational Works). In the contemporary literature Epstein 2011 and Hamburger 2014 have offered different versions of this classical claim; Vermeule 2015 responds to it, while Jones 1958 gives a canonical defense of the compatibility of the rule of law with administration.

                                                                                                                                                                                • Epstein, Richard. Design for Liberty: Private Property, Public Administration, and the Rule of Law. Cambridge, MA: Harvard University Press, 2011.

                                                                                                                                                                                  DOI: 10.4159/harvard.9780674063051Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                  Epstein argues that the contemporary American administrative state is characterized by too high a degree of discretion in administrative officials. This book is a self-conscious updating of Hayek’s worries about administration for the contemporary context, focusing on a contrast between public law discretion and private law property rights.

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                                                                                                                                                                                  • Hamburger, Philip. Is Administrative Law Unlawful? Chicago: University of Chicago Press, 2014.

                                                                                                                                                                                    DOI: 10.7208/chicago/9780226116457.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    Hamburger, a prominent legal historian, explicitly disclaims any appeal to the ideal of the rule of law as such. Nonetheless, his argument clearly is about that cluster of ideals that most other scholars would subsume under the rule of law category. His core claim is that the modern US administrative state recovers features of the royal prerogative rejected in the Anglo-American constitutional tradition, and that the effective consequence is that administrative agencies are above the law. This book has sparked substantial attention and controversy, and will need to be confronted for those hoping to write in the area.

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                                                                                                                                                                                    • Jones, Harry W. “The Rule of Law and the Welfare State.” Columbia Law Review 58.2 (1958): 143–156.

                                                                                                                                                                                      DOI: 10.2307/1119825Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                      It may fairly be taken as an indication of the lack of progress in this area of inquiry that a paper published in 1958 is to this day cited as the go-to-source for a careful discussion of the relationship between the rule of law and welfare administration. Nonetheless, Jones’s paper continues to stand as the most open-minded and careful consideration of the problem. He defends the possibility of a welfare state that nonetheless comports with the rule of law along roughly the lines laid out by Dicey 1982 (cited under Foundational Works).

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                                                                                                                                                                                      • Vermeule, Adrian. “No.” Texas Law Review 93 (2015): 1547–1566.

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                                                                                                                                                                                        An exceedingly harsh review of Hamburger 2014, Vermeule’s essential critique (and one that might equally well be applied to the entire administrative-law-and-rule-of-law literature) is that Hamburger fails to understand how administrative law works. Administrative agencies, in Vermeule’s account, exercise their power as a product of ordinary legislative acts (not examples of executive legislation), and do not ordinarily combine adjudicative, and investigatory powers (no star chamber there).

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                                                                                                                                                                                        The Threat of Indeterminacy

                                                                                                                                                                                        It is sometimes claimed that the rule of law is impossible because legal decisions are indeterminate (a judge can legitimately reach many, or possibly any, outcomes in any case). Hasnas 1995 is a key example of this claim, and MacCormick 2005 can be seen as an extended attempt at refuting it. Michelman 2002 carefully considers it and a cluster of related issues. Shklar 1986 has a general discussion of the idea of “legalism” and its potential to blind us to pervasive diversity of thought.

                                                                                                                                                                                        • Hasnas, John. “The Myth of the Rule of Law.” Wisconsin Law Review 1 (1995): 199–233.

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                                                                                                                                                                                          Hasnas, in inimitable style, attempts to refute the very idea of the rule of law by arguing that all acts of legal interpretation are inevitably open-ended and shot through with normative judgments. Probably the most unremitting statement of the skeptical position of the rule of law; although Hasnas has not succeeded in convincing rule of law scholars to abandon the area, it must be confronted by those who would otherwise too-quickly assume that the constraint of power by law is possible.

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                                                                                                                                                                                          • MacCormick, Neil. Rhetoric and the Rule of Law: A Theory of Legal Reasoning. New York: Oxford University Press, 2005.

                                                                                                                                                                                            DOI: 10.1093/acprof:oso/9780199571246.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                            MacCormick attempts to reconcile “the arguable character of law”—that is, that argumentation may be required to choose between multiple legally valid decisions—with the idea of the rule of law. The reader is given a theory of legal argumentation as a constrained exercise of practical reasoning, where those constraints establish the possibility of the rule of law.

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                                                                                                                                                                                            • Michelman, Frank. “Relative Constraint and Public Reason: What Is ‘the Work We Expect of Law’?” Brooklyn Law Review 67 (2002): 963–985.

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                                                                                                                                                                                              While this paper is written as a response to a book claiming that cognitive science can offer a framework for constraining judges, Michelman engages in a much more far-ranging inquiry on the constraint of officials (particularly of the judicial kind) and legal legitimacy. The discussion might be understood as offering a path to a kind of answer to Hasnas: suppose it’s true that much legal adjudication is very indeterminate, does that undermine law’s ability to achieve its goals? (Those goals, of course, can be described in rule of law terms, although Michelman only flirts with that particular language.) Characteristically, Michelman raises more questions than he answers but does so brilliantly and with a famously accessible prose style.

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                                                                                                                                                                                              • Shklar, Judith N. Legalism: Law, Morals, and Political Trials. 2d ed. Cambridge, MA: Harvard University Press, 1986.

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                                                                                                                                                                                                Shklar offers a general analysis and critique of the idea of “legalism”—the notion (which Shklar understands as ideology that claims dominance over much legal and political thought) that correct action is a matter of rule-following, and shows how legalism’s limits can be found in an insightful discussion of international war crimes trials.

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                                                                                                                                                                                                Specific Rule of Law Demands

                                                                                                                                                                                                Scholars have attributed a number of demands to the rule of law, usually summarized in Fuller’s principles of legality (Fuller 1969, cited under Foundational Works). However, there is also debate on the margins about a number of its demands. Raz 1979 (cited under the Rule of Law and Legal Positivism) claims, against conventional understandings, that the rule of law does not forbid discriminatory law. Waldron 2012 claims that the rule of law does not require strong property rights protections. Dan-Cohen 1984 claims that the rule does not require that the rules judges apply be fully public.

                                                                                                                                                                                                • Dan-Cohen, Meir. “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law.” Harvard Law Review 97 (1984): 625–677.

                                                                                                                                                                                                  DOI: 10.2307/1340892Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                  Dan-Cohen argues that the rule of law permits judges to operate by more lenient “decision rules” than the “conduct rules” the law announces to the public, against a general intuition that the rule of law requires the full rules that guide legal judgments to be public.

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                                                                                                                                                                                                  • Waldron, Jeremy. The Rule of Law and the Measure of Property. Cambridge, UK: Cambridge University Press, 2012.

                                                                                                                                                                                                    DOI: 10.1017/CBO9781139169318Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                    Many in the rule of law community, particularly development professionals, tend to assume that the rule of law requires a strong regime of private property rights. Waldron provides a careful argument against that view in the context of a wide-ranging discussion that also serves as an excellent introduction to debates about the rule of law generally as well as the philosophical status of private property. Waldron has an immense and highly influential body of work on the rule of law, of which this is perhaps the most compelling.

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