Historian Paul Johnson opined that the great undertaking of the last millennium was the establishment of the rule of law within nation states, and that the project for this new millennium is to build the rule of law on the international or global level. The first project remains a work in progress; the second has only just begun. Rather than hazard to prognosticate – on such time scales anything is possible, more than once – this chapter will offer an overview of the current state of the rule of law on the international level, organized in terms of the three themes set out in the preceding chapter. These offerings are tentative and brief, reflecting what is an uncertain and early state of affairs; for nigh every positive sign there is a concomitant reason for doubt.

Let us begin generally with the reasons for optimism. International lawyers (jurists, scholars, practitioners) are fond of reiterating that: “around the world today the vast majority of governments abide by the dictates of international law an overwhelming majority of the time.” Furthermore, an already impressive and ever-expanding range of subject matters are governed by international law, especially when increasingly common regional arrangements – like the European Union and the North American Free Trade Agreement (NAFTA) – are included in the estimation.

Liberalism was born in the pre-modern period of the late-seventeenth and eighteenth centuries. Like any political theory, there are competing versions of liberalism, ranging from the social welfare liberalism of John Rawls, to the libertarian liberalism of Robert Nozick, to the conservative liberalism of Friedrich Hayek, to the pluralistic liberalism of Isaiah Berlin, to the egalitarian liberalism of Amy Gutman. The picture is further complicated because liberalism consists not just of a political theory and system of government, but also a culture, an economic theory, a psychology, a theory of ethics, and a theory of knowledge. Notwithstanding this variety and complexity, every version of liberalism reserves an essential place for the rule of law. And the rule of law today is thoroughly understood in terms of liberalism.

Above all else liberalism emphasizes individual liberty. Put in classic terms by John Stuart Mill: “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.”

The liberal social contract tradition, formulated most influentially by John Locke, explains the origins of law and the state in idealized terms. Life without law (in the state of nature) is insecure and prone to disputes; keeping the peace requires laws, and unbiased law enforcers and judges.

Beginning at the end of the nineteenth century and continuing through the late twentieth century came loud and repeated warnings from theorists about the decline of the rule of law. It is an odd paradox that the unparalleled current popularity of the rule of law coincides with widespread agreement among theorists that it has degenerated in the West. Theorists on both ends of the political spectrum, right and left, have concurred on this diagnosis, though the former have lamented this decline while the latter have celebrated it. Given that the rule of law is widely prescribed as the elixir for many political and economic ails, it is essential to understand the nature of and reasons for this decline. The arguments of the political right will be taken up in this chapter.

Liberalism versus socialism

The observed decline of the rule of law is directly linked to the grand ideological contest between liberalism and socialism of the past 150 years. Mid-nineteenth-century England was the highpoint of classical liberalism. A free market in the production, distribution, and exchange of goods and services substantially prevailed, with relatively limited government interference. According to historian Eric Hobsbawm, the engine of economic progress during this period was the development of the railroad. It generated increases in steel production (to build rails and cars) and coal mining (to fuel the engines); it encouraged innovations in machine-building and engineering; it prompted the creation of new financial devices for capital accumulation (to finance projects).

Individual rights

All substantive versions of the rule of law incorporate the elements of the formal rule of law, then go further, adding on various content specifications. The most common substantive version includes individual rights within the rule of law. Ronald Dworkin made a sophisticated case for this:

Dworkin insisted that these rights are not granted by the positive law, but instead form a background for and integral aspect of positive law.

He avoided resort to metaphysics by identifying the source of those rights in the community. The rule book “represents the community's effort to capture moral rights.”

While the political right laments the degeneration of the rule of law in the West, radical left theorists encourage this decline. Their opposition builds upon the communitarian reaction to liberalism and upon on the negative implications of the rule of law in liberal systems, especially those related to distributive justice and formal equality. It is liberalism and capitalism that the radical left most resents, and the rule of law is attacked for the service it provides in bolstering this political and economic system. This chapter will concentrate on arguments raised amongst legal theorists in the USA, where the theoretical challenge to the rule of law has been most vociferous. Such severe criticism could only be produced in a country in which lengthy acquaintance with the rule of law confers intimate familiarity of its limitations, and also leads to a sense of security that encourages forgetfulness about its benefits.

The 1960s and 1970s witnessed a massive social upheaval in the USA, related to the fight for civil rights, protests against the Vietnam War, refusal to comply with the draft, and resistance against school busing, mixed in with broader concerns about the dire economic future (stagflation and the oil crisis), the corruption of politics (Watergate), and the sexual revolution and mind-altering drugs. President John F. Kennedy and Robert Kennedy, his brother and political heir apparent, had been assassinated. Civil rights leader Martin Luther King was murdered.

Three majestic early works, standing above all others in stature and influence, cemented the integral place of the rule of law in liberal systems: Locke's Second Treatise of Government (1690), Montesquieu's Spirit of the Laws (1748) and The Federalist Papers (1787–88) by Madison, Hamilton, and Jay. This chapter will present a summary exegesis of each contribution. They have decisively shaped the modern rule of law in Western liberal democracies. Following this exegesis will be a brief examination of the rule of law in nineteenth-century England. England deserves special mention, for it has achieved the longest-running continuous tradition of the rule of law, it was the home of Locke, it provided the prime exemplar for Montesquieu, its culture influenced the authors of the The Federalist Papers, and it was the tradition within which Dicey made his arguments about the modern decline of the rule of law (taken up in the next chapter). It is also an instructive test case, inconsistent in important respects with the framework set out in The Federalist Papers, that operates contrary to a number of popular contemporary assumptions about what the rule of law requires. To conclude this chapter a presumption contained within these accounts – the presence of a well-established legal profession – will be drawn out.

But first a mention of the seventeenth-century giant of political theory, Thomas Hobbes, who casts a shadow on liberalism as well as on the rule of law.

At the outset of this book it was observed that politicians, government officials, political and legal theorists, business leaders, development experts, the World Bank and IMF, and many others around the globe, from liberal and non-liberal societies, from developed countries and developing countries, promote the rule of law as offering worldwide benefit. A quarter century ago noted Marxist historian E. P. Thompson incited a stormy academic debate among the far left when he declared, following a detailed historical study of liberalism in England, that the rule of law was an unqualified, universal good. Coming from one of their heroes, fellow Marxists considered this conclusion almost traitorous. Thompson confirmed that law served the interests of the ruling class, and that judges were drawn from the ruling class and showered it with favoritism. English liberal law, in the guise of neutrality, concealed and reinforced many iniquities. But that was not the whole story. He also discovered that the ideology of being bound by the law had a restraining effect on those with power, whether the monarchy or the wealthy. They claimed to be bound by the law, and the effect of this claim – because they and others around them came to believe and act upon this claim – was to place them within legal restraints. Rhetoric became reality. With this in mind, Thompson concluded that the rule of law was “a cultural achievement of universal significance.”

Greek thought

Many accounts of the rule of law identify its origins in classical Greek thought, quoting passages from Plato and Aristotle. Though this is not incorrect, a caveat must be kept in mind. For half of a millennium, known as the Dark Ages, Greek thought was almost entirely lost to the West, until rediscovered and given new life in the high Middle Ages by religious scholars. The rule of law as a continuous tradition took root more than a thousand years after the heyday of Athens. Greek ideas with respect to the rule of law are therefore best understood as exemplary models, inspiration, and authority for later periods. Many of the problems the Greeks, Plato and Aristotle in particular, grappled with so insightfully are timeless problems; hence their timeless relevance and appeal.

Fifth-century BC Athens, at the height of its glory, took great pride in being a democracy governed directly by its citizens. The overarching orientation of Athenians was toward the polis, the political community. Every male citizen over thirty years of age, of whatever class or wealth, was eligible to serve (for pay) on juries that decided legal cases; they also served as magistrates, on the governing Council (with a rotating head), and on legislative assemblies, with positions filled by lot. To insure accountability, magistrates presiding over cases could be charged with violations of the law by complaints from private citizens. Owing to these characteristics, “democracy was synonymous for the Athenians with the ‘rule of law.’”

Just over a decade ago, following the almost total collapse of communism, it seemed to many observers to be the dawn of a new age, an age in which Western ideas of freedom, democracy, individual rights, and capitalism finally would come to dominate, spreading their beneficent effects to the many blighted parts of the globe that had previously rejected them in the name of Marxism, or traditional values, or anti-Westernism, or some other self-defeating ideal. “The End of History” had arrived. Peace and prosperity were about to reign worldwide.

How quickly have things turned. There has since been a bewildering array of nationalist, ethnic, religious, and political conflict, of genocide and other unthinkable atrocities, of economic crises that have threatened global financial stability, of terrorism and war, all at levels exceeding what occurred during the hottest moments of the half-century-long Cold War. New global fault lines, previously sublimated beneath the overarching confrontation between communist systems and the West, have emerged and deepened, between rich and poor countries, between North and South or East and West, between Islamic and non-Islamic countries, between liberal and non-liberal societies, between mercantilist (state-run) capitalism and free trade capitalism, between dominance by global corporations and the preservation of local autonomy, between US military, economic, political, and cultural influence and the rest of the world, at once bitterly resistant while guiltily complicit. For all but the most sanguine observers, the triumphalist confidence of the 1990s has dissolved.

The rule of law tradition congealed into existence in a slow, unplanned manner that commenced in the Middle Ages, with no single source or starting point. Three contributing sources will be elaborated upon: the contest between kings and popes for supremacy, Germanic customary law, and the Magna Carta, which epitomized the effort of nobles to use law to impose restraints on sovereigns. Preliminary to considering these sources, a historical context will be laid.

By convention among historians, which is imprecise and by no means unanimous, the Medieval period of the West lasted for 1,000 years, commencing with the fifth-century collapse of the Roman Empire, terminating in the course of the Renaissance of the fifteenth and sixteenth centuries.

The first several centuries of this period are known as the Dark Ages. After Constantine shifted the capital of the Roman Empire to Constantinople, the western half of the Empire entered into a long decline precipitated by waves of invasions by Germanic tribes, who were unlearned barbarians by contrast to the refined Greco-Roman civilization they overran. The fearsome Huns, hitherto unknown Asian warriors originating from the distant east, mounted an invasion that thrust far into Europe in the fourth and early fifth centuries, driving the Germanic tribes (Goths, Visigoths, Ostrogoths, Vandals) before them in to the Roman Empire. Rome, sacked more than once, became a virtual backwater, with a fraction of its former population living amidst the ruins of the once great city.

This exploration of the history, politics, and theories surrounding the notion of the rule of law has presented a tale of continuity and change, shared understandings and sharp disputes. Moreover, each theory of the rule of law examined, whether formal or substantive, raises serious objections or concerns. This is to be expected of any ideal that has survived over two millennia, playing a pivotal role in so many contexts, from Medieval struggles between kings and popes to the global contest between socialism and liberalism. It would be facile to suggest that there is an overarching coherence to the subject. Disagreement exists about what the rule of law means among casual users of the phrase, among government officials, and among theorists. The danger of this rampant uncertainty is that the rule of law might devolve to an empty phrase, so lacking in meaning that it can be proclaimed with impunity by malevolent governments.

A surfeit of definitions of the rule of law has been presented in this work. Adding another in the hope that it would win the day would be redundant and naive. Instead this chapter will isolate and address three familiar themes that run through the rule of law tradition, drawing out the lessons to be taken from the foregoing exploration. They are characterized here as themes or clusters of meaning because, while interrelated, indeed almost inseparable, they revolve around distinct ideas, each with its own specific tilt.